FAR 9.105-2—Determinations and documentation.
Plain-English Summary
FAR 9.105-2 explains how a contracting officer must document and support responsibility determinations before award, and what happens when a prospective contractor is found nonresponsible. It covers the legal effect of signing a contract as a responsibility determination, the requirement to issue a written determination of nonresponsibility when award is denied on that basis, and the special procedures that apply when the apparent successful offeror is a small business lacking certain responsibility elements. The section also requires the contract file to contain supporting documentation such as preaward survey reports, FAPIIS information, and any Certificate of Competency (COC). In addition, it establishes when and how a nonresponsibility determination must be entered into FAPIIS, including the 3-working-day submission requirement, the public release rules, the 14-day waiting period, and the limits on posting information protected by FOIA exemptions. In practice, this section is about creating a defensible administrative record, protecting small business rights under SBA procedures, and ensuring accurate, timely reporting of serious responsibility findings.
Key Rules
Award Implies Responsibility
The contracting officer’s signature on a contract is itself a determination that the contractor is responsible for that contract. If the officer rejects an otherwise awardable offer because the offeror is nonresponsible, the officer must prepare, sign, and file a written nonresponsibility determination stating the basis.
Small Business Referral Required
If a responsive small business lacks certain responsibility elements, the contracting officer must follow SBA procedures in FAR subpart 19.6. If SBA issues a Certificate of Competency, the contracting officer must accept that decision and award to the small business.
File Must Contain Support
The contract file must include the documents and reports supporting the responsibility or nonresponsibility decision, including preaward survey reports, any FAPIIS information used, and any applicable Certificate of Competency. This creates the record needed to justify the decision and support later review.
FAPIIS Reporting Trigger
A nonresponsibility determination must be entered in FAPIIS when the contract exceeds the simplified acquisition threshold, the finding is based on unsatisfactory performance record or integrity/business ethics, and SBA does not issue a COC. The contracting officer is responsible for timely, sufficient, and accurate submission within 3 working days.
Public Release Rules
Information posted to the non-public segment of FAPIIS generally becomes publicly available after 14 calendar days, with exceptions for past performance reviews, pre-April 15, 2011 entries, and information withdrawn during the waiting period. This means postings can quickly become visible outside the Government unless removed or exempted.
FOIA Exemption Protection
Government officials may not post information in the non-public segment of FAPIIS if it is covered by a FOIA disclosure exemption. If the contractor claims within 7 calendar days that posted information is exempt, the posting must be removed within 7 calendar days and handled under agency FOIA procedures before any reposting of releasable information.
Responsibilities
Contracting Officer
Determine responsibility before award, and understand that signing the contract constitutes a responsibility determination. If rejecting an offer for nonresponsibility, prepare, sign, and file a written determination stating the basis. Refer responsive small businesses lacking certain responsibility elements to SBA under subpart 19.6, accept any SBA-issued Certificate of Competency, maintain supporting documentation in the contract file, and ensure timely, accurate FAPIIS reporting when required.
Small Business Administration
Review referred cases under subpart 19.6 and decide whether to issue a Certificate of Competency for a small business concern. If SBA issues a COC, the contracting officer must accept that decision and proceed with award to the concern.
Government Officials Posting to FAPIIS
Enter nonresponsibility information accurately and only when permitted, avoid posting information protected by FOIA exemptions, and remove challenged postings within the required 7-calendar-day period while resolving disclosure issues under agency FOIA procedures.
Contractor or Offeror
If information posted to the non-public segment of FAPIIS is believed to be exempt from disclosure, assert that claim within 7 calendar days to the posting official. Contractors and offerors may also view data in FAPIIS on themselves, subject to the system’s access rules.
Agency FOIA Officials / Agency FOIA Process
Resolve disputes over whether posted FAPIIS information is exempt from disclosure and determine what information may be reposted after review. Agencies must ensure postings and removals are handled consistently with FOIA procedures.
Practical Implications
A responsibility decision is not just a procurement judgment; it becomes part of the official record and can affect future source selections, audits, protests, and oversight reviews.
For small businesses, a nonresponsibility finding cannot simply end the matter if the issue falls within SBA’s COC authority. Contracting officers must pause and follow the referral process before denying award.
The contract file must be complete. Missing preaward surveys, FAPIIS support, or the COC can make the decision hard to defend and may create compliance problems later.
FAPIIS deadlines are short. The 3-working-day submission requirement means contracting officers need to act quickly and ensure the entry is accurate, because errors or omissions can create reputational and administrative consequences.
Public disclosure can happen automatically after 14 days, so officials should review postings carefully for FOIA-sensitive information before submission and respond immediately if a contractor challenges the disclosure basis.
Official Regulatory Text
(a) Determinations. (1) The contracting officer’s signing of a contract constitutes a determination that the prospective contractor is responsible with respect to that contract. When an offer on which an award would otherwise be made is rejected because the prospective contractor is found to be nonresponsible, the contracting officer shall make, sign, and place in the contract file a determination of nonresponsibility, which shall state the basis for the determination. (2) If the contracting officer determines that a responsive small business lacks certain elements of responsibility, the contracting officer shall comply with the procedures in subpart 19.6 . When a Certificate of Competency is issued for a small business concern (see subpart 19.6 ), the contracting officer shall accept the Small Business Administration’s decision to issue a Certificate of Competency and award the contract to the concern. (b) Support documentation . (1) Documents and reports supporting a determination of responsibility or nonresponsibility, including any preaward survey reports, the use of FAPIIS information (see 9.104-6 ), and any applicable Certificate of Competency, must be included in the contract file. (2) (i) The contracting officer shall document the determination of nonresponsibility in FAPIIS (available at https://www.cpars.gov ) if- (A) The contract is valued at more than the simplified acquisition threshold; (B) The determination of nonresponsibility is based on lack of satisfactory performance record or satisfactory record of integrity and business ethics; and (C) The Small Business Administration does not issue a Certificate of Competency. (ii) The contracting officer is responsible for the timely submission, within 3 working days, and sufficiency, and accuracy of the documentation regarding the nonresponsibility determination. (iii) As required by section 3010 of the Supplemental Appropriations Act, 2010 (Pub. L. 111-212), all information posted in FAPIIS on or after April 15, 2011, except past performance reviews, will be publicly available. FAPIIS consists of two segments- (A) The non-public segment, into which Government officials and contractors post information, which can only be viewed by- (1) Government personnel and authorized users performing business on behalf of the Government; or (2) An offeror or contractor, when viewing data on itself; and (B) The publicly-available segment, to which all data in the non-public segment of FAPIIS is automatically transferred after a waiting period of 14 calendar days, except for- (1) Past performance reviews required by subpart 42.15 ; (2) Information that was entered prior to April 15,2011; or (3) Information that is withdrawn during the 14-calendar-day waiting period by the Government official who posted it in accordance with paragraph (b)(2)(iv) of this section. (iv) The contracting officer, or any other Government official, shall not post any information in the non-public segment of FAPIIS that is covered by a disclosure exemption under the Freedom of Information Act. If the contractor asserts within 7 calendar days, to the Government official who posted the information, that some of the information posted to the non-public segment of FAPIIS is covered by a disclosure exemption under the Freedom of Information Act, the Government official who posted the information must within 7 calendar days remove the posting from FAPIIS and resolve the issue in accordance with agency Freedom of Information Act procedures, prior to reposting the releasable information.