FAR 9.104-3—Application of standards.

Evidence of resources

If a prospective contractor does not already have sufficient resources, or plans to rely on subcontracting, the contracting officer must require acceptable evidence that the contractor can obtain the needed facilities, equipment, personnel, or other resources. The evidence normally must be a commitment or explicit arrangement that will exist at the time of award.

Subcontracting and resources

When evaluating a prime contractor’s compliance with limitations on subcontracting, the contracting officer must consider the contract’s base period and any option periods or quantities if those options are part of the award evaluation. This prevents a contractor from appearing compliant for only part of the performance period.

Poor performance creates presumption

A prospective contractor that is or recently has been seriously deficient in performance is presumed nonresponsible unless the contracting officer finds the problems were beyond the contractor’s control or that the contractor has taken appropriate corrective action. Repeated failure to perform with sufficient tenacity and perseverance is strong evidence of nonresponsibility.

Quality and extent of deficiencies

Failure to meet contract quality requirements is a significant factor in the responsibility determination. The contracting officer must look at both the number of contracts affected and how serious the deficiencies were in each contract before deciding whether the contractor has a satisfactory performance record.

Subcontracting plan compliance

If the pending contract requires a subcontracting plan under FAR subpart 19.7, the contracting officer must also consider the prospective contractor’s recent compliance with subcontracting plans. Poor compliance can weigh against a finding of satisfactory performance.

Affiliates are separate, but relevant

Affiliated concerns are normally treated as separate entities for responsibility purposes, so one affiliate’s status does not automatically control another’s. However, the contracting officer must consider an affiliate’s past performance and integrity when those factors may adversely affect the prospective contractor’s responsibility.

Joint venture past performance

For a joint venture, the contracting officer must consider the joint venture’s own past performance. If the joint venture lacks relevant past performance, the contracting officer must consider the past performance of each party to the joint venture.

Small business referral to SBA

If a contracting officer finds a small business concern nonresponsible, the matter must be referred to the Small Business Administration for a Certificate of Competency decision. The contracting officer does not make the final nonresponsibility outcome for a small business without SBA involvement.

Limitations on subcontracting

A small business that cannot comply with the applicable limitations on subcontracting may be found nonresponsible. If the small business has not agreed to comply with those limitations, it may be considered nonresponsive, depending on the solicitation and clause structure.

Contracting Officer

Apply the responsibility standards in a practical, evidence-based way; require acceptable proof of resource availability when needed; evaluate past performance, quality problems, corrective actions, and subcontracting-plan compliance; consider affiliate and joint-venture performance as required; and refer nonresponsible small business concerns to SBA for a Certificate of Competency.

Prospective Contractor

Show that it can obtain the facilities, equipment, personnel, and other resources needed to perform; maintain a satisfactory performance record; take corrective action when performance problems occur; and, if a small business, agree to and comply with applicable limitations on subcontracting and any required subcontracting plan.

Small Business Administration

Review referrals of small business concerns found nonresponsible and decide whether to issue a Certificate of Competency, which can override the contracting officer’s nonresponsibility determination for purposes of award eligibility.

Affiliated Concerns

Provide performance and integrity information that may be relevant to the prospective contractor’s responsibility when affiliate conduct could adversely affect the award decision.

Joint Venture Parties

Support the responsibility review by providing the joint venture’s past performance information, and if the joint venture lacks its own record, the individual parties’ past performance information.

Agency/Source Selection Team

Ensure the responsibility determination is based on the correct contract period, including options when relevant, and that subcontracting-plan and subcontracting-limitations issues are evaluated consistently with the solicitation and applicable clauses.