Responsibility Determinations Under the
Federal Acquisition Regulation: Legal
Standards and Procedures

Kate M. Manuel
Legislative Attorney
August 18, 2010
Congressional Research Service
7-5700
www.crs.gov
R40633
CRS Report for Congress
P
repared for Members and Committees of Congress

Responsibility Determinations Under the Federal Acquisition Regulation

Summary
This report discusses the standards and procedures that federal agencies use in making
responsibility determinations under the Federal Acquisition Regulation (FAR). As a general rule,
government agencies contract with the lowest qualified responsible bidder or offeror.
Responsibility is an attribute of the contractor, while price and qualifications are attributes of the
bid or offer. Under the FAR, “[n]o purchase or award shall be made unless the contracting officer
makes an affirmative determination of responsibility.”
To be determined responsible, prospective contractors must meet general standards, which
include so-called “collateral requirements.” These standards apply to all procurement contracts,
even if they are not incorporated into the solicitation. They include the following seven criteria
related to contractors’ capabilities and conduct: (1) adequate financial resources; (2) ability to
comply with the delivery or performance schedule; (3) satisfactory performance record; (4)
satisfactory record of integrity and business ethics; (5) necessary organization and experience; (6)
necessary equipment and facilities; and (7) otherwise qualified and eligible. The seventh criterion
encompasses collateral requirements, or other provisions of law specifying when contractors are
disqualified from or ineligible for awards. Under current collateral requirements, contractors must
be found nonresponsible when, among other things, they (1) do not comply with federal equal
employment opportunity requirements; (2) fail to agree to an acceptable plan for subcontracting
with small businesses; (3) are known government employees; (4) are quasi-military armed forces;
or (5) have unavoidable and unmitigated organizational conflicts of interest. Unlike performance
standards, which assess whether prospective contractors can be expected to complete the contract
work in a timely and satisfactory manner, collateral requirements ensure that the government’s
dealings with contractors promote socioeconomic goals.
In addition to the general standards, contractors may have to meet special standards, also known
as “definitive criteria,” which apply only to specific acquisitions. Special standards must be
expressly included in agencies’ solicitations. They are used when unusual expertise, special
facilities, or specific experience or equipment are necessary to ensure that the government’s needs
are satisfied.
Contracting officers determine prospective contractors’ responsibility prior to each contract award
by considering information submitted by the contractor or otherwise acquired by the agency.
When they lack sufficient information to determine that the contractor is responsible, they must
make a determination of nonresponsibility. Contractors are generally not entitled to due process
when contracting officers make a responsibility determination, meaning that they typically do not
get notice of nonresponsibility determinations or an opportunity to present evidence regarding
their responsibility. Contracting officers have substantial discretion in making determinations.
Protesters have standing to challenge contracting officers’ determinations before the Government
Accountability Office or federal courts only in limited circumstances.
The standards and procedures used in making responsibility determinations have recently
received increased attention from some Members of Congress and the general public, in part
because of reports that certain federal contractors have engaged in allegedly irresponsible conduct
negatively affecting the U.S. government or its citizens. The 111th Congress has enacted or
proposed legislation that augments the responsibility standards, particularly the collateral
requirements (e.g. P.L. 111-68, P.L. 111-117, P.L. 111-118, P.L. 111-212, H.R. 1555, H.R. 3221,
H.R. 4444, H.R. 4983, H.R. 5136, H.R. 5726, S. 3323).
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Responsibility Determinations Under the Federal Acquisition Regulation

Contents
Introduction ................................................................................................................................ 1
Mechanisms for Ensuring Contractors Are Responsible............................................................... 2
Responsibility Determinations............................................................................................... 3
Exclusion Determinations ..................................................................................................... 4
Performance Standards & Collateral Requirements...................................................................... 5
General Standards ................................................................................................................. 6
Special Standards ................................................................................................................ 10
Procedures: Making and Protesting Responsibility Determinations ............................................ 10
Recently Enacted and Proposed Amendments............................................................................ 13
Additional Legislative Options.................................................................................................. 15

Tables
Table 1. Comparison of Nonresponsibility Determinations and Debarment .................................. 5
Table 2. Major Collateral Requirements ...................................................................................... 9

Contacts
Author Contact Information ...................................................................................................... 17

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Responsibility Determinations Under the Federal Acquisition Regulation

Introduction
Like private contracting parties, the federal government generally “enjoys the unrestricted power
... to determine those with whom it will deal[] and fix the terms and conditions upon which it will
make needed purchases.”1 In exercising this power, the government typically awards contracts to
the lowest qualified responsible bidder or offeror, with responsibility being an attribute of the
contractor and price and qualifications being attributes of the bid or offer.2 The awardee must
possess all three attributes. If a prospective contractor is not responsible, for example, it is
ineligible for the proposed contract even if it is qualified to perform the work and its bid is the
lowest, or its offer represents the best value for the government.3 This focus upon contractors’
responsibility, in particular, exists because:
The award of a contract to a supplier based on lowest evaluated price alone can be false
economy if there is a subsequent default, late deliveries, or other unsatisfactory performance
resulting in additional contractual or administrative costs. While it is important that
Government purchases be made at the lowest price, this does not require an award to a
supplier solely because that supplier submits the lowest offer.4
Currently, the Federal Acquisition Regulation (FAR) specifies that “[n]o purchase or award shall
be made unless the contracting officer makes an affirmative determination of responsibility.”5
Contracting officers make responsibility determinations after considering whether prospective
contractors meet certain legal standards specified in the FAR. They make these determinations
using procedures also specified in the FAR.
The legal standards and procedures used in making responsibility determinations have recently
received increased attention from some Members of Congress and the general public, in part
because of reports that certain federal contractors have engaged in allegedly “irresponsible”
conduct that negatively affects the U.S. government or its citizens.6 The 111th Congress has
enacted or proposed legislation that augments the responsibility standards, particularly the
collateral requirements (e.g. P.L. 111-68, P.L. 111-117, P.L. 111-118, P.L. 111-212, H.R. 1555,
H.R. 3221, H.R. 4444, H.R. 4983, H.R. 5136, H.R. 5726, S. 3323).

1 Perkins v. Lukens Steel Co., 310 U.S. 113, 127 (1940).
2 This has been the federal government’s policy since its earliest days. See, e.g., James F. Nagle, History of Government
Contracting
50 (2d ed. 1999) (describing how Robert Morris used awards to the lowest qualified responsible bidder in
contracting for the U.S. Army during the Revolutionary War).
3 Under the Competition in Contracting Act (CICA), federal agencies may award procurement contracts only to
“responsible bidders” or “responsible sources.” 10 U.S.C. § 2305(b)(3) & 41 U.S.C. § 253b(4) (“responsible bidders”
in sealed bidding); 10 U.S.C. § 2305(b)(4)(C) & 41 U.S.C. § 253b(d)(2) (“responsible sources” in negotiated
procurements). Citations to CICA’s codification generally reference two titles of the United States Code: Title 10
governing procurements by defense agencies, NASA, and the Coast Guard, and Title 41 governing procurements by
civilian agencies. When the lowest priced bid or best-value offer is from a nonresponsible contractor, the award is made
to the next lowest bidder, or the next best-value offeror, who is responsible.
4 48 C.F.R. § 9.103(c).
5 48 C.F.R. § 9.103(b).
6 See, e.g., S. 526, § 2 (finding that a foreign contractor’s failure to appear to defend against litigation in U.S. federal
court was not the action of a “responsible party”); H.R. 2349, § 2 (same). S. 526 has been reintroduced as S. 2782
without this language.
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This report provides an overview of the legal standards and procedures currently used in making
responsibility determinations. It discusses (1) how responsibility determinations relate to other
mechanisms that the government relies upon to ensure that contractors are responsible and
otherwise eligible for federal contracts; (2) the performance-related and collateral standards used
in making responsibility determinations; (3) the procedures for making responsibility
determinations; and (4) recently enacted or proposed amendments to the standards or procedures
for responsibility determinations.
Mechanisms for Ensuring Contractors Are
Responsible

In considering whether contractors are sufficiently “responsible” to perform federal contracts,
agencies consider whether prospective contractors (1) can be expected to complete contract work
on time and in a satisfactory manner; (2) are organized in such a way that doing business with
them promotes socioeconomic goals; and (3) meet statutory or regulatory requirements for
eligibility.7 Currently, under the FAR, the government relies upon two primary mechanisms for
avoiding nonresponsible contractors: responsibility determinations and exclusion (i.e., debarment
and suspension).8 This section provides a basic overview of the differences between responsibility
determinations and exclusion. The remainder of the report then explores how responsibility
determinations help ensure that federal contractors are responsible. A separate report, CRS Report
RL34753, Debarment and Suspension of Government Contractors: An Overview of the Law
Including Recently Enacted and Proposed Amendments
, by Kate M. Manuel, describes the role of
debarment and suspension in excluding nonresponsible contractors.
Responsibility determinations are sometimes confused with responsiveness determinations;9
evaluation of past performance in negotiated procurements;10 and qualification requirements.11

7 The government had a practice of avoiding awards to nonresponsible contractors prior to CICA. See, e.g., O’Brien v.
Carney, 6 F. Supp. 761 (D.C. Mass. 1934); 7 Comp. Gen. 547 (1928). However, the concept of responsibility was not
included in federal procurement statutes until 1948-1950, when the Armed Services Procurement Act and the Federal
Property and Administrative Services Act were amended to require awards to responsible bidders. See 10 U.S.C. §
2305(c) (1948) & 41 U.S.C. § 253 (1950).
8 See 48 C.F.R. §§ 9.000-9.107 (nonresponsibility determinations); 48 C.F.R. §§ 9.400-9.409 (exclusion).
9 Responsiveness determinations focus upon whether bids conform in all material respects to agencies’ invitations for
bids. 48 C.F.R. § 14.404-2(a) (“Any bid that fails to conform to the essential requirements of the invitation for bids
shall be rejected.”). While responsibility is determined when the contract is awarded, responsiveness is determined
when the bid is opened. This difference in timing means that a contractor that was not responsible at the time of bid
opening could become so prior to the time of contract award. See, e.g., LORS Med. Corp., Comp. Gen. B-259829.2
(Apr. 25, 1995) (contractor responsible by the time of award because it had adequate financial resources after forming a
joint venture subsequent to bid opening). The same is not true with responsiveness: a bid that is not responsive at the
time when bids are opened cannot later become so.
10 Responsibility determinations are themselves based, in part, on consideration of contractors’ past performance, or
factual information and qualitative judgments about contractors’ performance history. See 48 C.F.R. § 9.105-1(c)
(stating that when evaluating whether contractors have a satisfactory performance record, contracting officers must
consider relevant past performance information). Past performance is, however, also an evaluation factor used in
determining to whom to award contracts in negotiated procurements above the simplified acquisition threshold
($100,000). 48 C.F.R. § 15.304(c)(2). There are, however, certain situations in which past performance need not be
considered in negotiated procurements above the simplified acquisition threshold. See 48 C.F.R. § 15.304(c)(3)(i).
11 Qualification requirements are “requirement[s] for testing or other quality assurance demonstration that must be
completed by an offeror before award of a contract.” 41 U.S.C. § 253c(a). CICA allows federal agencies to consider
(continued...)
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However, all of these focus upon contractors’ bids, not the contractors themselves, and are thus
beyond the scope of this report.
Responsibility Determinations
Contracting officers make responsibility determinations after considering seven factors, discussed
in more detail below, related to contractors’ resources and conduct.12 Because no purchase or
award may be made “unless the contracting officer makes an affirmative determination of
responsibility,” a nonresponsible contractor is ineligible for the proposed contract.13
Determinations of nonresponsibility are, however, award-specific, and contractors who are
determined nonresponsible for the award of one contract could become responsible prior to the
award of another contract.14 New, current, and former government contractors are equally subject
to the requirement for responsibility determinations. Contractors are generally not guaranteed due
process when contracting officers make responsibility determinations.15 These determinations are
largely committed to the contracting officer’s discretion.16 Protesters have standing to challenge
responsibility determinations before the Government Accountability Office (GAO) or the federal
courts only in limited circumstances.17 Even when protesters can demonstrate standing, judicial
and administrative tribunals generally decline to overturn contracting officers’ responsibility
determinations unless the protester can show that the determination was clearly unreasonable
given the record before the contracting officer.18

(...continued)
only contractors that have already met testing or quality-assurance requirements when certain conditions are satisfied.
See 10 U.S.C. § 2319 & 41 U.S.C. § 253c. Chief among these conditions is that the agency head prepares a written
justification (1) stating the need for the qualification requirement, as well as why the requirement must be demonstrated
before contract award; (2) estimating contractors’ likely costs for testing and evaluation; and (3) specifying all
requirements a potential offeror or product must satisfy to become qualified. 48 C.F.R. § 9.202(a)(1)(i)-(iii).
Qualification requirements increase the likelihood that government contractors will perform successfully by limiting
the pool of eligible contractors to those that have already demonstrated specific capabilities.
12 48 C.F.R. § 9.104-1.
13 48 C.F.R. § 9.103(b).
14 See, e.g., LORS Med. Corp., Comp. Gen. B-259829.2 (Apr. 25, 1995) (contractor responsible by the time of award
because it had adequate financial resources after forming a joint venture subsequent to bid opening).
15 But see Old Dominion Dairy Prods., Inc. v. Sec’y of Def., 631 F.2d 953 (D.C. Cir. 1980) (holding that contractors
must receive due process when nonresponsibility determinations are based on alleged lack of integrity because of
contractors’ liberty interest in being able to challenge allegations about their integrity that could deprive them of their
livelihood).
16 See, e.g., Molded Insulation Co., Comp. Gen. B-151834 (Nov. 29, 1963) (“In view of the discretion vested in the
contracting agency with respect to such matters we must conclude that there is no basis upon which we may question
the legality of the award made pursuant to the invitation.”).
17 See, e.g., GAO, Office of General Counsel, Bid Protests at GAO: A Descriptive Guide 51 (8th ed. 2006), available at
http://www.gao.gov/decisions/bidpro/bid/d06797sp.pdf (granting the protester standing only when the protest alleges
that definitive responsibility criteria were not met or “identif[ies] evidence raising serious concerns that ... the
contracting officer unreasonably failed to consider available relevant information or otherwise violated statute or
regulation.”).
18 See, e.g., Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324, 1334-35 (2001). Because
the record upon which contracting officers made their determinations is not part of the file when contractors are
determined to be responsible, courts may permit limited depositions of contracting officers in order “to plac[e] on the
record the basis for [their] responsibility determination.” Id. at 1339. There is generally no parallel need to depose
contracting officers when they determine a contractor is nonresponsible because their files must contain documents
stating the basis for the nonresponsibility determination, among other things. See 48 C.F.R. § 9.105-2(a)(1).
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Exclusion Determinations
Agencies also use exclusion—as debarment and suspension are collectively known—to avoid
dealing with nonresponsible contractors.19 Decisions to exclude are made by agency heads or
their designees (above the contracting officer’s level) based upon evidence that contractors have
committed certain integrity offenses, including any “offenses indicating a lack of business
integrity or honesty that seriously affect the present responsibility of a contractor.”20 Contractors
are considered for exclusion only when specific conduct occurs, not as a routine matter. Exclusion
is government-wide and not contract-specific.21 Excluded contractors are barred from receiving
future government contracts, among other things, for as long as the exclusion lasts.22 Debarment
lasts for a “period commensurate with the seriousness of the cause(s),” generally not exceeding
three years, while suspension lasts as long as any agency investigation of the underlying conduct
or ensuing legal proceeding.23 Only current government contractors are typically debarred or
suspended, although contracting officers may refer prospective contractors to agency debarring or
suspending officials for consideration for exclusion based upon information submitted in bids or
offers.24 Contractors proposed for debarment or suspension are guaranteed due process, and
decisions to exclude are not committed to debarring or suspending officials’ discretion in the
same way that responsibility determinations are.25 While exclusion determinations are not
generally protestable, at least not with the GAO,26 they may be reversed on appeal to the federal
courts when they are improperly punitive, or arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.27

19 See 48 C.F.R. § 9.406 (debarment) & 48 C.F.R. § 9.407 (suspension).
20 See 48 C.F.R. § 9.406-1 (debarring official); 48 C.F.R. § 9.407-1 (suspending official); 48 C.F.R. § 9.403 (definitions
of debarring official and suspending official). Grounds for debarment include, among other things, convictions or civil
judgments involving fraud or criminal offenses in connection with obtaining or performing a government contract;
violations of federal or state antitrust laws relating to the submission of offers; embezzlement, theft, forgery, or similar
offenses; and intentional misuse of the “Made in America” designation. 48 C.F.R. § 9.406-2(a)(1)-(5).
21 48 C.F.R. § 9.405(a) (“[A]gencies shall not solicit offers from, award contracts to, or consent to subcontracts with
[debarred] contractors.”).
22 Id. Debarred contractors are also generally precluded from (1) receiving new work or an option under an existing
contract; (2) receiving orders in excess of the guaranteed minimum under an indefinite-delivery/indefinite-quantity
contract; (3) serving as a subcontractor on certain contracts with executive branch agencies; or (4) serving as an
individual surety. See 48 C.F.R. § 9.405(a)-(c); 48 C.F.R. § 9.405-1(b)(1); § 9.405-2(a)-(b). However, any current
contracts or subcontracts of debarred or suspended contractors continue unless the agency head directs otherwise. 48
C.F.R. § 9.405-1(a).
23 48 C.F.R. § 9.406-4(a)(1) (debarment) & 48 C.F.R. § 9.407-4(a) (suspension). Debarments are limited to one year for
violations of the Immigration and Nationality Act, but can last up to five years for violations of the Drug-Free
Workplace Act. 48 C.F.R. § 9.406-4(a)(1)(i)-(ii). Suspensions may not exceed 18 months unless legal proceedings are
initiated within that period. 48 C.F.R. § 9.407-4(a).
24 48 C.F.R. § 9.104-5(a)(2).
25 48 C.F.R. § 9.406-3. When debarment is based on a conviction, the hearing that the contractor received prior to the
conviction suffices for due process in the debarment proceeding. The due process protections with suspension are not
as extensive as those with debarment because suspension is “less serious” than debarment. 48 C.F.R. § 9.407-3(a)-(d).
26 4 C.F.R. § 21.59(i).
27 See, e.g., Frequency Elecs., Inc. v. U.S. Dep’t of the Air Force, 1998 U.S. App. LEXIS 14888 (4th Cir. 1998) (noting
that, unless an agency’s exclusion determination is punitive, a court cannot disturb it unless it is arbitrary, capricious,
an abuse of discretion or otherwise not in accordance with the law); IMCO, Inc. v. United States, 97 F.3d 1422, 1427
(Fed. Cir. 1996) (upholding an agency’s debarment determination but noting that the outcome would have been
different had the debarment been imposed for purposes of punishment).
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Table 1. Comparison of Nonresponsibility Determinations and Debarment
Nonresponsibility
Debarment
Decision maker
Contracting officer
Debarring official (not the contracting officer)
Criteria
Adequate financial resources
Fraud or criminal offenses in obtaining or
performing a public contract or subcontract
Ability to comply with delivery and
performance schedule
Violations of federal or state antitrust laws
Satisfactory performance record
Embezzlement, theft, forgery, bribery, etc.
Satisfactory record of integrity and business
Intentionally misusing “Made in America"
ethics
designation
Necessary organization and experience
Other offenses indicating a lack of business
integrity or honesty that seriously affect the
Necessary equipment and facilities
present responsibility of a contractor
Otherwise qualified and eligible
Duration
Single contract award
Fixed time proportionate to the offense
(generally not more than 3 years)
Application
Applies to companies that have not previously
General y applied to current government
had government contracts, as wel as current
contractors, although potentially applicable to
and prior government contractors
prospective or prior contractors
Due Process
General y not
Yes
Review of
Contracting officers have substantial discretion;
Debarring officials do not have substantial
Agency
protesters have standing to chal enge the
discretion; their decisions are generally not
Determinations
determinations only under limited
protestable, at least not with GAO
circumstances (e.g., definitive criteria allegedly
not met)
Source: Congressional Research Service
Performance Standards & Collateral Requirements
When determining whether prospective contractors are responsible, agencies consider both
general standards that apply to all contracts, regardless of whether they are incorporated into the
solicitation, and special standards, also known as “definitive criteria,” that apply only if included
in the solicitation. These standards—whether general or special—are largely performance
standards. They assess whether prospective contractors can be expected to complete the contract
work on time and in a satisfactory manner. One of the general standards introduces so-called
“collateral requirements,” however, by specifying that contractors must be “otherwise qualified
and eligible” in order to be found responsible.28 Collateral requirements are other provisions of
law disqualifying some prospective contractors or declaring them ineligible for awards. Collateral
requirements are not performance standards. Rather, they ensure that the government’s dealings
with contractors promote socioeconomic goals such as equal employment opportunity (EEO) or
subcontracting with small businesses.29

28 48 C.F.R. § 9.104-1(g).
29 See, e.g., 48 C.F.R. § 22.802(b) (compliance with EEO requirements); 15 USC § 637(d)(4)(C) (subcontracting with
small businesses); 15 USC § 637(d)(5)(B) (same).
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General standards, as well as any special standards, apply to all prospective contractors located in
the United States and its outlying areas or elsewhere, unless application of the standards “would
be inconsistent with the laws or customs where the contractor is located.”30 However, the
standards do not apply to contracts with foreign, state, or local governments; other U.S.
government agencies or their instrumentalities; or “agencies for the blind or other severely
handicapped.”31 While responsibility determinations generally focus upon agencies’ prospective
prime contractors, contracting officers may inquire into the responsibility of prospective
subcontractors in making their determinations.32 However, contracting officers are not required to
independently investigate the responsibility of each proposed subcontractor.33 Rather, once they
determine that a contractor is responsible, they may generally presume that the contractor has
ascertained that its subcontractors are responsible.34
General Standards
For prospective contractors to be determined responsible, they must satisfy seven criteria, each of
which is discussed in more detail below.35 These criteria require contractors to:
1. Have adequate financial resources to perform the contract, or the ability to
obtain them.36 In assessing this criterion, contracting officers consider the factors
generally used to assess businesses’ financial health: ratio of assets to liabilities,
working capital, cash flow projections, credit ratings, profitability, and liquidity
of assets.37 A contractor’s filing for bankruptcy does not, in itself, mean that the
contractor lacks adequate financial resources.38 Contractors may demonstrate
their financial capacity by offering performance bonds.39
2. Be able to comply with the required or proposed delivery or performance
schedule. Any circumstances suggesting that a contractor might not comply with
the contract’s schedule for delivery or performance could form the basis for an
unfavorable finding on this criterion. Such circumstances may include recent
relocation; labor disputes; delivery problems under prior contracts; and inability
to demonstrate that suppliers or subcontractors are committed to delivering
necessary items or equipment.40

30 48 C.F.R. § 9.102(a)(1)-(2).
31 48 C.F.R. § 9.102(b)(1)-(3). When nonprofit agencies serving the blind or persons with severe disabilities are
involved, the focus is on capability, not responsibility. See 48 C.F.R. § 9.107.
32 See, e.g., Linde Construction, Comp. Gen. B-206442 (Mar. 17, 1983).
33 Id.
34 See, e.g., FHC Options, Inc., Comp. Gen. B-246793.3 (Apr. 14, 1992).
35 48 C.F.R. § 9.104-1(a)-(g).
36 When contractors are required to have certain resources or the ability to obtain them (e.g., adequate financial
resources), contractors may demonstrate responsibility by showing a commitment or explicit agreement to rent,
purchase, or otherwise acquire the resources. 48 C.F.R. § 9.104-3(a).
37 See, e.g., Costec Assocs., Comp. Gen. B-215827 (Dec. 5, 1984) (working capital); Tomco, Inc., Comp. Gen. B-
210023.2 (Feb. 15, 1984) (type of credit obtained by the contractor); Lear & Scout, Comp. Gen. B-143208 (June 29,
1960) (net worth, operating losses, cash flow).
38 See, e.g., Hunter Outdoor Prods., Inc., Comp. Gen. B-179922 (Oct. 16, 1974).
39 33 Comp. Gen. Dec. 549 (May 12, 1954).
40 See, e.g., Sys. Dev. Corp., Comp. Gen. B-212624 (Dec. 5, 1983) (inability to demonstrate that suppliers or
subcontractors are committed to delivering necessary items or equipment); X-tyal Int’l Corp., Comp. Gen. B-190101
(continued...)
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3. Have a satisfactory performance record. Under the FAR, “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.”41 Serious deficiencies in
performance may include delinquent performance; delivery of nonconforming
items; failure to adhere to contract specifications; late deliveries; poor
management or technical judgment; failure to correct production problems;
failure to perform safely; and inadequate supervision of subcontractors.42
Contracting officers must consider the circumstances surrounding any deficient
performance when making determinations,43 and poor performance or default on
one or several prior contracts is not, per se, sufficient ground for
disqualification.44
4. Have a satisfactory record of integrity and business ethics. In evaluating this
criterion, contracting officers may consider convictions or indictments of
corporate officers; integrity offenses constituting grounds for suspension under
the FAR; repeated violations of state law; or pending debarments.45 A lack of
integrity on the part of entities with which the contractor has close relationships
may also be considered.46 Due process is required when a nonresponsibility
determination is based on concerns about the contractor’s integrity because
contractors have a liberty interest in being able to challenge allegations about
their integrity that could deprive them of their livelihood, as discussed below.47
5. Have the necessary organization, experience, accounting and operational
controls, and technical skills, or the ability to obtain them. Contracting officers
considering this criterion focus on prior work experiences, as well as the present
organization of corporations.48 Inability to implement necessary programs or
procedures (e.g., for quality assurance), unsatisfactory experience, or lack of

(...continued)
(Mar. 30, 1978) (relocation, labor strike, delivery problems under other government contracts).
41 48 C.F.R. § 9.104-3(b).
42 See, e.g., Campbell Indus., Comp. Gen. B-238871 (July 3, 1990) (poor management and technical judgment); Ford
Motor Co., Comp. Gen. B-207179 (Jan. 20, 1983) (late deliveries); United Power & Control Sys., Inc., Comp. Gen. B-
184662 (Dec. 27, 1978) (nonconforming items); Bill Ward Painting & Decorating, Comp. Gen. B-184612 (Jan. 28,
1976) (unsafe performance; inadequate supervision of subcontractors); Marine Eng’rs Beneficial Ass’n, Comp. Gen. B-
181265 (Nov. 27, 1974) (failure to take corrective action); Kennedy Van & Storage Co., Inc., Comp. Gen. B-180973
(June 19, 1974) (failure to adhere to specifications); Land-Air, Inc., Comp. Gen. B-166969 (Sept. 2, 1969) (delinquent
performance).
43 See, e.g., Marine Eng’rs Beneficial Ass’n, Comp. Gen. B-181265 (Nov. 27, 1974).
44 See, e.g., id.
45 See, e.g., Traffic Moving Sys., Comp. Gen. B-248572 (Sept. 3, 1992) (officers’ criminal convictions); Standard Tank
Cleaning Corp., Comp. Gen. B-245364 (Jan. 2, 1992) (repeated violations of state law); Drexel Indus., Inc., Comp.
Gen. B-189344 (Dec. 6, 1977) (integrity offenses that are grounds for suspension under the FAR); Greenwood’s
Transfer & Storage Co., Inc., Comp. Gen. B-186438 (Aug. 17, 1976) (pending debarment).
46 See, e.g., Speco Corp., Comp. Gen. B-211353 (Apr. 26, 1983) (upholding a nonresponsibility determination where a
contractor repeatedly allowed another business with an unsatisfactory record of integrity and business ethics to do
business under its name).
47 See Old Dominion Dairy Prods., 631 F.2d at 963.
48 See, e.g., Certified Testing Corp., Comp. Gen. B-212242 (Nov. 8, 1983) (present organization); Otis Elevator Corp.,
Comp. Gen. B-140481 (Sept. 8, 1959) (prior experience).
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experience may be grounds for nonresponsibility determinations.49 Agencies may
consider the experience of (1) predecessor firms, when the contractor retains key
personnel; (2) parent firms, when their resources would be committed to
performing the contract; and (3) principal officers or key employees.50
6. Have the necessary production, construction, and technical equipment and
facilities, or the ability to obtain them. Contractors may be found nonresponsible
based on this criterion when they do not presently possess necessary equipment
or facilities, or cannot prove ability to access them in the future.51 Contracting
officers may also evaluate the safety or capacity of equipment or facilities.52
7. Be otherwise qualified and eligible to receive an award under applicable laws
and regulations. Contracting officers evaluating this criterion consider whether
contractors are disqualified from or ineligible for a proposed award because of
collateral requirements, or other provisions of law specifying when contractors
are disqualified from or ineligible for awards. Table 2 lists major collateral
requirements presently in effect government-wide.53 Contracting officers may
also consider whether contractors have or can acquire any necessary federal
licenses or permits.54

49 See, e.g., Omneco, Inc., Comp. Gen. B-218343 (June 10, 1985) (unable to implement quality assurance program);
Columbus Jack Corp., Comp. Gen. B-211829 (Sept. 20, 1983) (unsatisfactory experience); CEA Indus., Inc., Comp.
Gen. B-169160 (May 4, 1970) (lack of experience). Lack of experience is treated differently than lack of performance
history. Lack of experience can count against prospective contractors when contracting officers consider whether
contractors have the necessary organization and experience. Lack of performance history, however, cannot count
against prospective contractors when contracting officers either (1) consider whether contractors have a satisfactory
performance record or (2) evaluate past performance. See 41 U.S.C. § 405(j)(2); 48 C.F.R. § 9.104-1(c); 48 C.F.R. §
15.305(a)(2)(iv).
50 See, e.g., Tri-Star Indus., Inc., Comp. Gen. B-254767.2 (Jan. 18, 1994) (parent corporation); J.D. Miles & Sons, Inc.,
Comp. Gen. B-251533 (Apr. 7, 1993) (key employees); Sun Elec. Corp., Comp. Gen. B-202325 (Aug. 10, 1981)
(predecessor firm); Nello T. Leer Co., Comp. Gen. B-130910 (Mar. 26, 1957) (principal officers). However,
contracting officers are not obligated to consider the experience of the parent of a newly formed subsidiary. See, e.g.,
Med. Servs. Consultants, Inc., Comp. Gen. B-203998 (May 25, 1982).
51 See, e.g., McLaughlin Res. Corp., Comp. Gen. B-247118 (May 5, 1992) (agreement showing ability to use
warehouse in the future).
52 See, e.g., GSE Dynamics, Inc., Comp. Gen. B-175545 (Aug. 17, 1972).
53 There are additional collateral requirements, often targeted or effectively applicable to specific agencies. For
example, the Federal Protective Service Guard Contracting Reform Act of 2008 prohibits businesses that are owned,
controlled, or operated by individuals convicted of “serious felonies” from participating in the contract security guard
program of the Federal Protective Service, a component of the Department of Homeland Security (DHS). See P.L. 110-
356, § 2, 122 Stat. 3996 (Oct. 8, 2008). In November 2009, DHS promulgated a final rule implementing this act,
identifying what constitutes a “serious felony,” among other things. Dep’t of Homeland Security, Prohibition on
Federal Protective Service Guard Services Contracts With Business Concerns Owned, Controlled, or Operated by an
Individual Convicted of a Felony, 74 Fed. Reg. 58851 (Nov. 16, 2009).
54 See, e.g., What-Mac Contractors, Inc., Comp. Gen. B-192188 (Sept. 6, 1979). Any requirements for state or local
licenses or permits included in a solicitation are special standards, discussed below, not general ones. See, e.g., GSE
Dynamics, Inc., Comp. Gen. B-175545 (Aug. 17, 1972).
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Table 2. Major Collateral Requirements
Requirement Application
Equal Employment
• Contractors ineligible if they do not comply with the EEO requirements in
Opportunity (EEO)
Executive Order 11246, which requires, among other things, that contractors
(48 C.F.R. § 22.802(b);
“take affirmative action to ensure that applicants are employed, and that
Exec. Order No. 11246,
employees are treated during employment, without regard to their race, color,
religion, sex or national origin.”
30 Fed. Reg. 12319 (Sept.
24, 1965))
• Contractors cannot receive an award whose expected value is $10 million or
higher (excluding construction contracts) unless the Office of Federal Contract
Compliance Programs at the Department of Labor determines in writing that the
contractor is compliant with Executive Order 11246.
Small Business
• Contractors ineligible if they fail to agree to an acceptable plan for subcontracting
Subcontracting Plans
with smal businesses under the contract. Section 637(d) of the Smal Business Act
(15 USC § 637(d)(4)(C)
requires that all contracts whose expected value is over $500,000 ($1 million, in
the case of construction contracts) include a “subcontracting plan” that provides
(plans in negotiated
procurements); 15 USC §
the “maximum practicable opportunity” for various subcategories of smal
businesses to participate in performing the contract. Plans must include percentage
637 (d)(5)(B) (plans in
sealed-bid procurements))
goals for subcontracting with smal businesses; veteran-owned and service-disabled
veteran-owned smal businesses; HUBZone smal businesses; smal disadvantaged
businesses; and women-owned smal businesses. Plans must also describe the steps
that contractors will take to ensure that small businesses have an equitable
opportunity to compete for subcontracts.
Government Employees
• Agencies may not knowingly award contracts to government employees or
(48 C.F.R. §§ 3.601-602)
entities owned, or substantial y owned or control ed, by government employees.
• Contracting with government employees is permitted under certain narrow
exceptions, such as when the government’s needs cannot otherwise be met.
• If a contracting officer unknowingly contracts with a government employee, the
award generally will not be disturbed unless there appears to have been favoritism
or other impropriety.
Quasi-military Armed
• Agencies may not contract with the Pinkerton Detective Agency or “similar
Forces
organizations.”
(5 U.S.C. § 3108; 48 C.F.R.
• Prohibition applies “only to contracts with organizations that offer quasi-military
§ 37.109)
armed forces for hire, or with their employees, regardless of the contract’s
character.” (48 C.F.R. § 37.109)
Organizational Conflicts of • Agencies may not award contracts where there are OCIs that cannot be avoided
Interest (OCIs)
or mitigated. Disqualifying OCIs could arise if a prospective contractor provided
(48 C.F.R. §§ 9.500-9.508)
systems engineering and technical direction, prepared specifications or work
statements, provided evaluation services, or obtained access to other contractors’
proprietary information while performing other government contracts.
• Possibility of an OCI is not, in itself, grounds for disqualification. Rather, when
contracting officers identify an OCI, they must notify the contractor and al ow the
contractor a reasonable opportunity to respond.
• Contracting officers have substantial discretion in determining whether OCIs exist,
and their determinations will generally be reversed, if protested, only when they
are clearly unreasonable or directly contrary to statute or regulation.
Source: Congressional Research Service
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Special Standards
In addition to the general standards (including collateral requirements), which apply to all
contracts unless waived,55 there may be special standards, also known as definitive criteria, that
contractors must meet in order to be determined responsible for specific acquisitions.56
Contracting officers may incorporate such standards into solicitations when unusual expertise,
special facilities, or specific experience or equipment are necessary to ensure that the
government’s needs are satisfied.57 Contracting officers may not waive any special standards
when making awards.58 However, they have some discretion in determining whether particular
offerors meet the special standards, provided that their determinations are based upon adequate
and objective evidence.59 Contractors may rely upon the experience or facilities of their affiliates
or subcontractors, or any fellow venturer in a joint venture.60 Where experience is involved, they
may also rely on employees’ experiences while working for other companies.61
Procedures: Making and Protesting Responsibility
Determinations

Agency contracting officers must make an affirmative determination that a prospective contractor
is responsible prior to awarding the contract.62 They do so after considering a range of
information about the contractor:
In making the determination of responsibility, the contracting officer shall consider relevant
past performance information. In addition, the contracting officer should use the following
sources of information to support such determinations: (1) The Excluded Parties List
System.... (2) Records and experience data, including verifiable knowledge of personnel
within the contracting office, audit offices, contract administration offices, and other
contracting offices. (3) The prospective contractor[,] including bid or proposal information
..., questionnaire replies, financial data, information on production equipment, and personnel
information. (4) Commercial sources of supplier information of a type offered to buyers in
the private sector. (5) Preaward survey reports.63 (6) Other sources such as publications;

55 Waiver of the general standards is possible under the authority of 48 C.F.R. § 1.403, which allows contracting
officers to deviate from the requirements of the FAR on a contract-by-contract basis with the agency head’s
authorization.
56 48 C.F.R. § 9.104-2(a).
57 See, e.g., Breland Co., Comp. Gen. B-217552 (Feb. 21, 1985) (unusual expertise); Aero Corp., Comp. Gen. B-
201581 (June 23, 1981) (special facilities).
58 See, e.g., The Mary Kathleen Collins Trust, Comp. Gen. B-261019.2 (Sept. 29, 1995).
59 See, e.g., Reliance Elec. Co., Comp. Gen. B-184865 (May 3, 1976) (determining whether the offeror has equivalent
experience). In granting a Certificate of Competence, discussed below, the Small Business Administration (SBA) must
consider, but is not bound by, definitive criteria in the solicitation. See Baxter & Sons Elevator Co., Inc., Comp. Gen.
B-197595 (Dec. 3, 1980).
60 See, e.g., Tutor Saliba Corp., Comp. Gen. B-255756 (Mar. 29, 1994).
61 See, e.g., Tucson Mobilephone, Inc., Comp. Gen. B-258408.3 (June 5, 1995).
62 48 C.F.R. § 9.103(b).
63 A preaward survey is “an evaluation of a prospective contractor’s ability to perform a proposed contract.” 48 C.F.R.
§ 2.101. Its procedures vary depending upon the size and complexity of the procurement, as well as the information
presently available to contracting officers. However, it often involve visits by government teams to bidders’ or offerors’
places of business. 48 C.F.R. § 9.104-4(d).
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suppliers, subcontractors, and customers of the prospective contractor; financial institutions;
Government agencies; and business and trade associations. (7) If the contract is for
construction, the contracting officer may consider performance evaluation reports.64
Contracting officers must obtain “information sufficient to be satisfied” that the prospective
contractor meets all performance standards and collateral requirements.65 However, until recently,
contracting officers had almost unfettered discretion as to the nature and quantity of information
considered.66 Although they were encouraged to consider other information,67 they were required
to consider only “relevant past performance information.”68 The Clean Contracting Act of 2008
(P.L. 110-417, §§ 871-873) effectively changed this by requiring contracting officers to consult a
new database, the Federal Awardee Performance and Integrity Information System (FAPIIS),
whose creation is required under the act, when making responsibility determinations for contracts
in excess of the simplified acquisition threshold ($100,000).69 FAPIIS apparently has not yet been
compiled, but will contain brief descriptions of all civil, criminal, and administrative proceedings
involving federal contracts that result in a conviction or finding of fault, as well as all
terminations for default, administrative agreements, and nonresponsibility determinations relating
to federal contracts, within the past five years for all entities holding a federal contract or grant
worth $500,000 or more.70 Contracting officers will thus be required to review this information
once FAPIIS is available. What other information, if any, contracting officers consider remains
within their discretion, and they are not bound by any recommendations contained in the
information that they consider.71
A contractor’s failure to provide necessary information could result in a nonresponsibility
determination because contracting officers must determine that contractors are nonresponsible
when they lack information “clearly indicating that the prospective contractor is responsible.”72
The only exception to this rule involves small businesses. Prior to determining that a small
business is nonresponsible due to lack of information, or upon any other basis, contracting
officers must consult the Small Business Administration (SBA), which may—but is not required
to—issue a Certificate of Competence declaring the contractor eligible for the award.73 When the
SBA issues a Certificate of Competence, contracting officers may accept the factors covered by
the certificate without further inquiry.74

64 48 C.F.R. § 9.105-1(c) (internal citations omitted).
65 48 C.F.R. § 9.105-1(a).
66 See, e.g., John C. Grimberg Co. v. United States, 185 F.3d 1297, 1303 (Fed. Cir. 1999) (“[T]he contracting officer is
the arbiter of what, and how much, information he needs.”). An affirmative determination is improper if not based on
sufficient information. 48 C.F.R. § 9.105-1(a). However, the amount of information needed depends upon the
conclusions that can be drawn from it. See, e.g., John F. Small & Co., Inc., Comp. Gen. B-207681.2 (Dec. 6, 1982).
Determinations must also be supported by the record and based on the most current information available. See, e.g., 48
C.F.R. § 9.105-1(b)(1); Gary Aircraft Corp., Comp. Gen. B-174455 (July 6, 1972).
67 48 C.F.R. § 9.105-1(c)(1)-(7) (“In addition, the contracting officer should use the following sources of information
...”) (emphasis added).
68 48 C.F.R. § 9.105-1(c).
69 P.L. 110-417, § 872(b)(1) & (c), 122 Stat. 4356 (Oct. 14, 2008).
70 P.L. 110-417, at § 872(b)(1) & (c).
71 See, e.g., Carl Weissman & Sons, Inc., Comp. Gen. B-190304 (Feb. 17, 1978).
72 48 C.F.R. § 9.103(b); Sec. Assistance Forces & Equip. Int’l, Inc., Comp. Gen. B-194876 (Nov. 19, 1980).
73 48 C.F.R. § 9.103(b); 48 C.F.R. § 19.6.
74 48 C.F.R. § 9.105-2(a)(2).
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While the contracting officer’s signature on the contract indicates his or her determination that the
contractor is responsible for purposes of the contract, a determination that the contractor is
nonresponsible was recorded only in the contracting officer’s files until recently.75 However, the
Clean Contracting Act also requires that nonresponsibility determinations be included in
FAPIIS.76
Contractors do not routinely receive notice of nonresponsibility determinations concerning
them,77 and they are generally not entitled to due process when contracting officers make
responsibility determinations. Due process, where it applies, requires that parties get some sort of
notice and opportunity to be heard before the government takes actions involving their life,
liberty, or property.78 Because contractors do not have property interests in prospective
government contracts, they are generally not entitled to notice or a hearing before contracting
officers determine they are nonresponsible.79 However, when nonresponsibility determinations
are based upon concerns about contractors’ integrity, contractors are entitled to due process
because courts recognize contractors’ liberty interest in being able to challenge allegations about
their integrity that could deprive them of their livelihood:
[W]hen a determination is made that a contractor lacks integrity and the Government has not
acted to invoke formal suspension and debarment procedures, notice of the charges must be
given to the contractor as soon as possible so that the contractor may utilize whatever
opportunities are available to present its side of the story before adverse action is taken.80
Contractors could potentially also be entitled to due process if repeated nonresponsibility
determinations were made on the same basis—even when that basis is not integrity-related—if
the determinations constitute de facto debarment, as discussed below.81

75 See 48 C.F.R. § 9.105-2(a)(1) (2008) (“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, [stating] the basis for the
determination.”).
76 P.L. 110-417, §§ 871-73. Contracting officers could potentially engage in de facto debarment, discussed below, if
they based a nonresponsibility determination for a prospective contractor solely on the fact that a contractor had
previously been determined nonresponsible. For more on de facto debarment generally, see CRS Report RL34753,
Debarment and Suspension of Government Contractors: An Overview of the Law Including Recently Enacted and
Proposed Amendments
, by Kate M. Manuel.
77 Contractors are, however, entitled to written notice of nonresponsibility determinations, as well as the basis for such
determinations, when making bids or offers to the General Service Administration (GSA). See GSA Acquisition Manual
§ 509.105-2(a). Notice is intended to allow prospective contractors to correct problems for future solicitations.
78 See, e.g., Bd. of Regents v. Roth, 408 U.S. 64 (1972) (holding that people must have recourse to procedures for
determining the fairness of how the government has treated them when life, liberty, or property is involved).
79 See, e.g., Old Dominion Dairy Prods., 631 F.2d at 961 (contractor cannot claim a property interest in a prospective
contract).
80 Id. at 955-56. See also Conset Corp. v. Cmty. Servs. Admin., 655 F.2d 1291 (D.C. Cir. 1981) (circulation of a
memorandum alleging that a grant recipient had a conflict of interest, coupled with a subsequent refusal to approve the
firm for a grant, violated due process); Related Indus., Inc. v. United States, 2 Cl. Ct. 517 (1983) (contractor denied due
process when a contracting officer stated that “under no circumstances will he award any contract” to the contractor).
81 See, e.g., Shermco Indus., Inc. v. Sec’y of the Air Force, 584 F. Supp. 76 (N.D. Tex. 1984) (holding that when
successive determinations of nonresponsibility are made on the same basis, de facto debarment may have occurred).
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Contracting officers also have substantial discretion in their determinations,82 with administrative
or judicial tribunals hearing protests concerning responsibility determinations only under limited
circumstances. Tribunals that hear protests of contract awards do not routinely review contracting
officers’ responsibility determinations because such determinations are “practical, ... not legal
determination[s]” 83 and “are not readily susceptible to judicial review.” 84 The GAO hears
protests regarding responsibility determinations only when the protester alleges that definitive
responsibility criteria were not met or “identif[ies] evidence raising serious concerns that ... the
contracting officer unreasonably failed to consider available relevant information or otherwise
violated statute or regulation.”85 The federal courts similarly consider the merits of protested
responsibility determinations only when the protester’s allegations that the agency’s
determination was arbitrary and capricious, an abuse of discretion, or otherwise not in accordance
with the law can survive a preliminary motion to dismiss.86 Moreover, judicial and administrative
tribunals decline to overturn contracting officers’ responsibility determinations in many of the
protests that they do hear. They generally overturn a determination only when the protester can
show that the determination was clearly unreasonable given the record before the contracting
officer.87 The GAO and the courts have held that a contracting officer’s determination is not
unreasonable merely because another contracting officer made a different determination after
considering the same information.88
Recently Enacted and Proposed Amendments
The magnitude of federal spending on contracts, coupled with recent high-profile examples of
contractor misconduct, has heightened congressional interest in the legal standards and
procedures used in responsibility determinations. As the largest purchaser of goods and services
in the world, the federal government spent more than $474.6 billion on government contracts in
FY2009 alone.89 Some of this spending was with contractors who reportedly received contract

82 Molded Insulation Co., Comp. Gen. B-151834 (Nov. 29, 1963).
83 Peter Kiewit Sons’ Co. v. U.S. Army Corps of Eng’r, 714 F.2d 163, 167 n.18 (D.C. Cir. 1983).
84 YRT Servs. Corp. v. United States, 28 Fed. Cl. 366, 394 (1993). These tribunals also take the view that federal
agencies “bear the burden of difficulties experienced in obtaining the required performance.” See, e.g., News Printing
Co. v. United States, 46 Fed. Cl. 740, 746 (2000).
85 See, e.g., Bid Protests at GAO, supra note 17, at 51. Prior to 2003, the GAO exercised more limited jurisdiction over
protested responsibility determinations, hearing only protests alleging “bad faith” by agency officials or failure to meet
definitive criteria. However, the GAO changed its policy in response to the decision by the U.S. Court of Appeals for
the Federal Circuit in Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001).
86 Watts-Healy Tibbitts v. United States, 84 Fed. Cl. 253 (2008). Claims that agency actions are arbitrary and
capricious, an abuse of discretion, or otherwise not in accordance with the law derive from the Administrative
Procedure Act (APA), which allows persons “suffering legal wrong because of agency action” to seek judicial review
of that action. See 5 U.S.C. § 702 (right of review); 5 U.S.C. § 706 (2)(A) (arbitrary and capricious standard).
87 See, e.g., Impresa Construzioni, 238 F.3d at 1334-35. Because the record upon which contracting officers made their
determinations is not part of the files when they find contractors responsible, courts may permit limited depositions of
contracting officers in order “to plac[e] on the record the basis for [their] responsibility determination.” Id. at 1339.
There is usually no parallel need to depose contracting officers when they determine a contractor is nonresponsible
because their files must contain documents stating the basis of the nonresponsibility determination, among other things.
See 48 C.F.R. § 9.105-2(a)(1).
88 See, e.g., MCI Constructors, Comp. Gen. B-240655 (Nov. 27, 1990); S.A.F.E. Exp. Corp., Comp. Gen. B-151834
(Apr. 22, 1983).
89 Federal Contract Awards by Extent of Competition, USASpending.gov, available at http://www.usaspending.gov/
index.php, last accessed January 21, 2010.
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awards despite having previously engaged in serious misconduct, such as failing to pay taxes,
bribing foreign officials, falsifying records submitted to the government, and performing
contractual work so poorly that fatalities resulted.90
Given this context, Members of the 111th Congress have enacted or proposed legislation that
would augment the existing responsibility standards, particularly the collateral requirements.
Among the entities or groups that this legislation would make ineligible “to receive an award
under applicable laws and regulations” are the following:
• the Association of Community Organizations for Reform Now (ACORN) and its
affiliates, subsidiaries, and allied organizations, which would be ineligible either
for federal contracts in general (H.R. 3221, § 601), or for contracts funded under
particular appropriations acts (e.g., P.L. 111-68, § 163; P.L. 111-117, § 418);91
• corporations that, among other things, require their employees or independent
contractors, as a condition of employment, to resolve through arbitration any
claim under title VII of the Civil Rights Act of 1964 or any tort related to or
arising out of sexual assault or harassment, which are ineligible to receive any
contract in excess of $1 million and lasting more than 60 days funded under the
Department of Defense Appropriations Act, 2010 (P.L. 111-118, § 8116);
• “organizations” that (1) have been convicted of violating federal or state laws; (2)
had their corporate charter revoked by a state or other issuing authority for failure
to comply with federal or state laws; (3) filed, submitted, or transmitted a
fraudulent claim with or to any federal or state agency authorized by law to
promulgate regulations; (4) knowingly employ individuals who have been
convicted of violating federal or state laws, hire such individuals as contractors,
or extend any express, implied, or apparent authority to such individuals to act on
behalf of the organization; or (5) are parents, subsidiaries, or subsidiaries of the
parent company of, or any other company owning 50% or more of such

90 See, e.g., Alice Lipowicz, Group Updates Federal Contractor Misconduct Database, Wash. Tech., Apr. 21, 2009,
available at http://www.washingtontechnology.com/Articles/2009/04/21/Watchdog-group-updates-federal-contractor-
misconduct-database.aspx (“The top 100 federal contractors have accumulated 673 cases of admitted or alleged
misconduct and paid $26 million in penalties related to those cases since 1995.”); Kathleen Day, Medicare Contractors
Owe Taxes, GAO Says, Wash. Post, Mar. 20, 2007, at D1 (delinquent tax debts); Contract Fraud Loophole Exempts
Overseas Work, Grand Rapids Press, Mar. 2, 2008, at A9 (bribery of foreign officials); Ron Nixon & Scott Shane,
Panel to Discuss Concerns on Contractors, New York Times, July 18, 2007, at A15 (falsifying records); Terry Kivlan,
Shoddy Standards Blamed for Troop Electrocutions in Iraq, National Journal’s Congress Daily, PM Edition, July 11,
2008 (substandard performance).
91 A district court initially found that the prohibition on contracting with or otherwise providing federal funds to
ACORN and its affiliates, subsidiaries, and allied organizations contained in the Legislative Branch Appropriations
Act, 2010, (P.L. 111-68) constituted an unconstitutional bill of attainder for reasons outside the scope of this report. See
generally
CRS Report R40826, The Proposed “Defund ACORN Act,” the Continuing Resolution, and the Consolidated
Appropriations Act: Are They Bills of Attainder?
, by Kenneth R. Thomas. However, this decision was subsequently
reversed on appeal. See ACORN v. United States, 2010 U.S. App. LEXIS 16761, at *21-*42 (August 13, 2010). Even
without the Second Circuit’s decision reversing the district court, however, the non-ACORN collateral requirements
described below were unlikely to be found to constitute bills of attainder, in part, because they do not target specific
entities in the same way that the ACORN-related legislation does. The Supreme Court has held that legislation meets
the criteria of specificity, so as to potentially constitute a bill of attainder, if it either specifically identifies a person, a
group of people, or readily ascertainable members of a group, or identifies such a person or group by past conduct. See,
e.g.
, United States v. Lovett, 328 U.S. 303, 315 (1946); Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 323 (1866).
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organizations, which would be barred from all federal contracts (H.R. 4444, §
2);92 and
• “entities” that do not “elect to participate in the basic pilot program described in
section 403(a) of the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996,” which would be barred from Department of Homeland Security
Contracts (H.R. 1555, § 5).
Members have also enacted or proposed legislation regarding the FAPIIS database, which is to
include nonresponsibility determinations involving certain federal contractors. The legislation
creating FAPIIS specified that access to the database was limited to “appropriate acquisition
officials of Federal agencies, … such other government officials as the Administrator [of the
General Services Administration] determines appropriate, and, upon request, to the Chairman and
Ranking Member of the committees of Congress having jurisdiction.”93 However, the
Supplemental Appropriations Act, 2010, (P.L. 111-212) expanded access to FAPIIS’s content by
requiring that all FAPIIS information except for past performance evaluations be posted on a
“publicly available Internet website.”94 Other proposed legislation would (1) consolidate the
information contained in FAPIIS and related databases into a single database;95 (2) require the use
of unique, persistent identifiers to identify contractors across the various databases;96 (3) require
that contractors also disclose bribery of foreign officials in FAPIIS;97 (4) include administrative
judgments and civil proceedings that do not contain an explicit finding or acknowledgment of
fault in FAPIIS;98 and (5) expand FAPIIS’s coverage so that it includes information about covered
contractors from the past 10 years, instead of the past five years.99
Additional Legislative Options
Additional legislative options, which are not currently under consideration but have been
proposed in prior Congresses, could include (1) barring contractors from being found to have a
satisfactory performance record (or record of integrity and business ethics), or from being
determined responsible, if they engage in certain conduct;100 (2) adding further criteria to the
responsibility standards;101 and (3) requiring contracting officers to consider certain information

92 “Organization” is not defined for purposes of this act.
93 Duncan Hunter National Defense Authorization Act for FY2009, § 872(e)(1), 122 Stat. 4557 (Oct. 14, 2008).
Sections 871-873 of this act are commonly known as the Clean Contracting Act.
94 P.L. 111-212, § 3010,—Stat.—(July 29, 2010). The Transparency in Government Act of 2010 contains a provision
similar to that enacted. See H.R. 4983, § 504.
95 See, e.g., Federal Contracting Oversight and Reform Act of 2010, H.R. 5726, § 5 and S. 3323, § 5.
96 See, e.g., Transparency in Government Act of 2010, H.R. 4983, § 503.
97 See, e.g., National Defense Authorization Act for FY2010, H.R. 5136, § 837.
98 See, e.g., Transparency in Government Act of 2010, H.R. 4983, § 504(c).
99 See, e.g., id. at § 504(b).
100 See, e.g., H.R. 3033, § 4(a), 110th Cong. (“[A] person shall be presumed nonresponsible with respect to award of a
Federal contract or assistance if the person has rendered against the person twice within any 3-year period a judgment
or conviction for the same offense, or similar offenses, if each conviction constitutes a cause for debarment under the
Government-wide debarment system.”); H.R. 3383, § 2(a), 110th Cong. (precluding a contractor from being determined
responsible unless it has an ethics compliance program); S. 32, § 14(a), 110th Cong. (same); S. 2394, § 3, 110th Cong.
(precluding a contractor with tax debts from being determined responsible).
101 See, e.g., S. 680, § 307, 110th Cong. (authorizing contracting officers to consider whether contractors “pose a serious
(continued...)
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in making responsibility determinations, or document their rationales for finding contractors who
engage in certain conduct responsible.102 Such approaches would arguably be equally likely to
result in nonresponsibility determinations regardless of whether the proposed legislation bars
contractors who engage in certain conduct from being found to have a satisfactory performance
record or record of integrity and business ethics; bars contractors who engage in certain conduct
from being determined responsible; or adds further criteria to the responsibility standards.
However, there may be cases where legislation precluding contractors who engage in certain
conduct from being determined responsible could potentially result in an impermissible “de facto
debarment.”103 De facto debarment can occur when contractors are effectively debarred from
awards because they are repeatedly found nonresponsible on the same basis.104 Because due
process is required in debarment decisions but not in responsibility determinations, de facto
debarment can also unconstitutionally deprive contractors of due process by effectively using the
responsibility determination process to debar contractors.105
Otherwise, requiring contracting officers to consider specific information in making their
determinations, or to document why contractors who have engaged in certain conduct are
responsible, could potentially strengthen the responsibility determination process. Currently,
contracting officers have wide discretion in determining what information and how much
information they consider in making their determinations.106 Moreover, they are presently not
required to justify why any contractor is found responsible. Their signatures on a contract indicate
that the contractor was found responsible, but no documentation currently indicates why the
contractor was found responsible.107

(...continued)
threat to national security” when making responsibility determinations).
102 See, e.g., H.R. 3033, § 3(b), 110th Cong. (requiring contracting officers to document why contractors who have been
convicted or subject to civil judgments for certain offenses on multiple occasions within the past three years have been
determined responsible); S. 2904, § 3(b), 110th Cong. (same); S. 3139, § 201(b)(2), 110th Cong. (same); S. 3139, §
2305b, 110th Cong. (requiring contracting officers to consider certain information in determining whether contractors
have a satisfactory record of integrity and business ethics when making responsibility determinations).
103 This might happen if, for example, contractors were presumed nonresponsible on the basis of multiple occurrences
of certain conduct, especially if the conduct did not result in convictions or similar judgments from judicial or
administrative tribunals. When contractors are convicted, for example, they receive due process from the courts, and
this due process suffices for any subsequent debarment proceeding. The same would not necessarily be true if
contractors were presumed nonresponsible because they were the subjects of multiple reports or complaints alleging
certain conduct. If there was no due process in the reporting or complaint process, then the agency would arguably need
to provide due process when making responsibility determinations in order for the determinations to be constitutional.
104 See, e.g., Shermco Indus., Inc. v. Sec’y of the Air Force, 584 F. Supp. 76, 93-94 (N.D. Tex. 1984) (“[A] procuring
agency cannot make successive determinations of nonresponsibility on the same basis; rather it must initiate suspension
or debarment procedures at the earliest practicable moment following the first determination of nonresponsibility.”); 43
Comp. Gen. 140 (Aug. 8, 1963) (finding that multiple determinations of nonresponsibility can be tantamount to
debarment). However, multiple contemporaneous nonresponsibility determinations made on the same basis do not
constitute de facto debarment, especially when the determinations are based on the most current information available.
See, e.g., Sermor Inc., Comp. Gen. B-219132.2 (Oct. 23, 1985) (finding five consecutive nonresponsibility
determinations did not constitute de facto debarment); Mexican Intermodal Equip., S.A. de C.V., Comp. Gen. B-
270144 (Jan. 31, 1996) (two responsibility determinations were not “part of a long-term disqualification,” but were
“merely a reflection of the fact that the determinations were based on the same current information.”).
105 See, e.g., Shermco Indus., Inc., 584 F. Supp. at 89 (stating that de facto debarment unconstitutionally deprives
contractors of notice and an opportunity to be heard).
106 See supra note 66.
107 48 C.F.R. § 9.105-2(a)(1).
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Author Contact Information

Kate M. Manuel

Legislative Attorney
kmanuel@crs.loc.gov, 7-4477


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