[Code of Federal Regulations]

[Title 48, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 48CFR9.104-3]



[Page 148-149]

 

            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.

    (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



[[Page 149]]



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]