[Code of Federal Regulations]
[Title 48, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 48CFR9.104-3]

[Page 138-139]
 
            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
 
                CHAPTER 1--FEDERAL ACQUISITION REGULATION
 
PART 9_CONTRACTOR QUALIFICATIONS--Table of Contents
 
             Subpart 9.1_Responsible Prospective Contractors
 
Sec.  9.104-3  Application of standards.

    (a) Ability to obtain resources. Except to the extent that a 
prospective contractor has sufficient resources or proposes to perform 
the contract by subcontracting, the contracting officer shall require 
acceptable evidence of the prospective contractor's ability to obtain 
required resources (see 9.104-1(a), (e), and (f)). Acceptable evidence 
normally consists of a commitment or explicit arrangement, that will be 
in existence at the time of contract award, to rent, purchase, or 
otherwise acquire the needed facilities, equipment, other resources, or 
personnel. Consideration of a prime contractor's compliance with 
limitations on subcontracting shall take into account the time period 
covered by the contract base period or quantites plus option periods or 
quantities, if such options are considered when evaluating offers for 
award.

[[Page 139]]

    (b) Satisfactory performance record. A prospective contractor that 
is or recently has been seriously deficient in contract performance 
shall be presumed to be nonresponsible, unless the contracting officer 
determines that the circumstances were properly beyond the contractor's 
control, or that the contractor has taken appropriate corrective action. 
Past failure to apply sufficient tenacity and perseverance to perform 
acceptably is strong evidence of nonresponsibility. Failure to meet the 
quality requirements of the contract is a significant factor to consider 
in determining satisfactory performance. The contracting officer shall 
consider the number of contracts involved and the extent of deficient 
performance in each contract when making this determination. If the 
pending contract requires a subcontracting plan pursuant to Subpart 
19.7, The Small Business Subcontracting Program, the contracting officer 
shall also consider the prospective contractor's compliance with 
subcontracting plans under recent contracts.
    (c) Affiliated concerns. Affiliated concerns (see Concern in 19.001 
and Affiliates in 19.101) are normally considered separate entities in 
determining whether the concern that is to perform the contract meets 
the applicable standards for responsibility. However, the contracting 
officer shall consider the affiliate's past performance and integrity 
when they may adversely affect the prospective contractor's 
responsibility.
    (d)(1) Small business concerns. If a small business concern's offer 
that would otherwise be accepted is to be rejected because of a 
determination of nonresponsibility, the contracting officer shall refer 
the matter to the Small Business Administration, which will decide 
whether or not to issue a Certificate of Competency (see subpart 19.6).
    (2) A small business that is unable to comply with the limitations 
on subcontracting at 52.219-14 may be considered nonresponsible.

[48 FR 42142, Sept. 19, 1983, as amended at 53 FR 27463, July 20, 1988; 
53 FR 34226, Sept. 2, 1988; 56 FR 55378, Oct. 25, 1991; 60 FR 48260, 
Sept. 18, 1995; 61 FR 67410, Dec. 20, 1996; 62 FR 44820, Aug. 22, 1997; 
63 FR 70267, Dec. 18, 1998; 65 FR 80264, Dec. 20, 2000; 66 FR 66989, 
Dec. 27, 2001; 67 FR 13068, Mar. 20, 2002]