FAR 9.104-5—Representation and certifications regarding responsibility matters.
Plain-English Summary
FAR 9.104-5 explains how contracting officers must handle certain responsibility-related representations and certifications when an offeror answers “yes” to specific questions about criminal, tax, or delinquency issues. It covers the contracting officer’s duty to request additional information, notify the agency suspension/debarment official, and in some cases withhold award until that official has reviewed the matter. The section specifically addresses the certification at 52.209-5, Certification Regarding Responsibility Matters; the representation at 52.209-11, Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law; and, where applicable, the certification at 52.209-12, Certification Regarding Tax Matters, as well as the related provision at 52.212-3 for commercial acquisitions. In practice, this rule is a screening and escalation mechanism: it does not automatically disqualify an offeror, but it requires the contracting officer to gather more information, coordinate with suspension/debarment officials, and ensure the Government does not award to a corporation that may pose integrity or tax-compliance risks without the proper review. It also gives offerors a chance to correct missing representations or certifications before being found nonresponsible.
Key Rules
Positive answers trigger follow-up
If an offeror answers affirmatively to the specified responsibility questions, the contracting officer must promptly request any additional information the offeror believes is needed to show responsibility. This is a fact-gathering step, not an automatic rejection, and it must be done promptly after receipt of offers.
Suspension/debarment notice required
When the offeror indicates an indictment, charge, conviction, civil judgment, or Federal tax delinquency over $15,000, the contracting officer must notify the agency official responsible for suspension or debarment under agency procedures. This ensures integrity concerns are reviewed by the proper official before award.
Corporation tax/felony issues may block award
For the corporate representation at 52.209-11, if the offeror answers yes to delinquent tax liability or a felony conviction, the contracting officer may not award unless the suspending and debarring official has considered the matter and determined that suspension or debarment is not necessary to protect the Government’s interests.
Tax certification can be a condition of award
If 52.209-12 applies, the contracting officer cannot award a contract over $7 million unless the offeror has affirmatively certified as required by that provision. This makes the tax certification a mandatory award condition for covered procurements.
Opportunity to cure missing information
If the offeror fails to provide the required representation, certification, or requested supporting information, the contracting officer must give the offeror an opportunity to remedy the deficiency. However, failure to cure can still lead to a nonresponsibility determination.
Do not rely on prohibited information
The request for additional information is subject to the limitations in FAR 9.405, which restricts the use of debarment/suspension-related information in certain circumstances. The contracting officer must follow those restrictions when evaluating the offeror.
Responsibilities
Contracting Officer
Promptly request additional information when an offeror gives an affirmative response on the covered responsibility matters. Notify the agency suspension/debarment official when the offeror indicates an indictment, charge, conviction, civil judgment, or qualifying tax delinquency. For corporate responses under 52.209-11, do not award until the suspension/debarment official has reviewed the matter and decided debarment or suspension is not necessary. If 52.209-12 applies, ensure the required certification is affirmative before award. Give the offeror a chance to correct missing representations, certifications, or supporting information before concluding the offeror is nonresponsible.
Offeror/Contractor
Provide truthful affirmative or negative responses to the applicable responsibility and tax-related provisions. If asked for additional information, supply whatever the offeror believes is necessary to demonstrate responsibility. If a representation or certification is missing or incomplete, use the opportunity provided to cure the deficiency.
Agency Suspension and Debarment Official
Review matters referred by the contracting officer involving indictments, charges, convictions, civil judgments, or qualifying tax delinquencies, and determine whether suspension or debarment action is necessary to protect the Government’s interests. For corporate felony or tax-liability issues under 52.209-11, make the determination required before award can proceed.
Agency
Follow internal procedures for routing notices to the responsible suspension/debarment official and for handling responsibility-related referrals. Ensure contracting personnel understand when award is prohibited, when additional information may be requested, and how to document the file.
Practical Implications
This section is a gatekeeping rule for integrity and tax issues, so contracting officers should treat affirmative answers as a required follow-up item, not as a routine checkbox.
A common pitfall is failing to notify the suspension/debarment official before award when the offeror discloses an indictment, conviction, civil judgment, or significant tax delinquency.
For corporate offerors, an affirmative response under 52.209-11 can stop award until the suspension/debarment official has reviewed the matter, so procurement timelines may be affected.
If 52.209-12 applies, missing the required certification on a contract over $7 million is not a minor clerical issue; it can make award improper until corrected.
Offerors should expect to be asked for supporting information and should respond quickly and completely, because failure to furnish the required representation, certification, or follow-up information can lead to a nonresponsibility finding.
Official Regulatory Text
(a) When an offeror provides an affirmative response in paragraph (a)(1) of the provision at 52.209-5 , Certification Regarding Responsibility Matters, or paragraph (h) of provision 52.212-3 , the contracting officer shall- (1) Promptly, upon receipt of offers, request such additional information from the offeror as the offeror deems necessary in order to demonstrate the offeror’s responsibility to the contracting officer (but see 9.405 ); and (2) Notify, prior to proceeding with award, in accordance with agency procedures (see 9.406-3 (a) and 9.407-3 (a)), the agency official responsible for initiating debarment or suspension action, where an offeror indicates the existence of an indictment, charge, conviction, or civil judgment, or Federal tax delinquency in an amount that exceeds $15,000. (b) The provision at 52.209-11 , Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law, implements sections 744 and 745 of Division E of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) (and similar provisions in subsequent appropriations acts). When an offeror provides an affirmative response in paragraph (b)(1) or (2) of the provision at 52.209-11 or paragraph (q)(2)(i) or (ii) of provision 52.212-3 , the contracting officer shall– (1) Promptly, upon receipt of offers, request such additional information from the offeror as the offeror deems necessary in order to demonstrate the offeror's responsibility to the contracting officer (but see 9.405 ); (2) Notify, in accordance with agency procedures (see 9.406-3 (a) and 9.407-3 (a)), the agency official responsible for initiating debarment or suspension action; and (3) Not award to the corporation unless an agency suspending and debarring official has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the Government. (c) If the provision at 52.209-12 , Certification Regarding Tax Matters, is applicable (see 9.104-7 (e)), then the contracting officer shall not award any contract in an amount greater than $7 million, unless the offeror affirmatively certified in its offer, as required by paragraph (b)(1), (2), and (3) of the provision. (d) Offerors who do not furnish the representation or certifications or such information as may be requested by the contracting officer shall be given an opportunity to remedy the deficiency. Failure to furnish the representation or certifications or such information may render the offeror nonresponsible.