By Jon Olsen, Kentucky APEX Accelerator Senior Procurement Consultant
This article was originally published in our monthly Kentucky APEX Accelerator Newsletter. If you have any questions about this topic, your regional procurement consultant is here to help! Not a client? Sign up here.
In doing business with the federal government, many factors are considered in the solicitation, evaluation and award of contracts. One primary factor in the pre-award process is the determination of responsibility of potential offerors/awardees. The federal government’s policy is that “Purchases shall be made from, and contracts shall be awarded to, responsible prospective contractors only” (FAR 9.103(a)) and that “No purchase or award shall be made unless the contracting officer makes an affirmative determination of responsibility” (FAR 9.103(b)).
The federal government normally provides a notice of this policy in every solicitation issued by including a statement such as “The Government will award a contract resulting from this solicitation to the responsible offeror whose offer conforming to the solicitation will be most advantageous to the Government, price and other factors considered.”
The Government Contracting Officer will normally make a determination of responsibility or non-responsibility on the basis of information known to the government agency via the Federal Awardee Performance and Integrity Information System (FAPIIS), the Contractor Performance Assessment Reporting System (CPARS) and previous award information, or they will request additional information from the prospective contractor.
In the absence of information affirming a prospective contractor’s responsibility, a government agency may conduct a pre-award survey of a potential awardee or take other actions to confirm a firm’s responsibility/non-responsibility. The government may also review information and make a determination of responsibility of any proposed subcontractors or require the prime to provide written evidence of the proposed subcontractor’s responsibility.
Given this information, how does a company know if they will meet the criteria for being a responsible contractor?
All companies pursuing federal contract opportunities are required to register in SAM.gov and complete the online representations and certifications as part of the System for Award Management (SAM) registration process. One of the representations included in SAM is FAR 52.209-5, Certification Regarding Responsibility Matters. This certification includes affirmations regarding debarment or suspension, any convictions or civil judgements for fraud or other criminal offenses in connection with government contracts, no delinquent taxes and no terminations for default of federal contracts within the previous three years.
Additionally, FAR 9.104 contains the following General Standards that are considered in responsibility determinations:
(a) Have adequate financial resources to perform the contract, or the ability to obtain them (see 9.104-3(a))
(b) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments
(c) Have a satisfactory performance record (see 9.104-3(b) and subpart 42.15)
(d) Have a satisfactory record of integrity and business ethics (see subpart 42.15 and subpart 3.10)
(e) Have the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (See 9.104-3(a))
(f) Have the necessary production, construction, and technical equipment and facilities, or the ability to obtain them (see 9.104-3(a))
(g) Be otherwise qualified and eligible to receive an award under applicable laws and regulations (see also inverted domestic corporation prohibition at 9.108)
What does the government mean by “the ability to obtain” resources?
In many instances, prospective contractors can perform the entire contract effort with their own financial, labor, equipment, management and other resources. The ability to obtain resources would involve a prospective contractor providing any requested evidence regarding how they intend to satisfy the requirements of the contract, which may include loans, subcontracts and other written commitments regarding resources needed to perform. See FAR 9.104-3(a) for a more comprehensive explanation.
Other areas the government may consider are satisfactory past performance and record of integrity and business ethics. Past performance information can be researched by government officials through the FAPIIS/CPARS system. Other information, such as “Exclusions” and “Other Responsibility and Integrity Information,” may be researched through SAM.gov.
Awareness of responsibility matters may be crucial to receiving federal contract awards and should be investigated and verified prior to submitting proposals or bids on specific solicitations. Due diligence in confirming delivery or performance requirements and other compliance requirements may also be important in obtaining an affirmative determination of responsibility.
Additional information or clarification regarding this information may be obtained by contacting your regional Kentucky APEX Accelerator procurement consultant or by clicking on the links above. If you are not sure how to connect with your consultant, please contact us at kyapex@kstc.com or register as a client on our website.