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

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

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Responsibility Determinations Under
the Federal Acquisition Regulation:
Legal Standards and Procedures
Kate M. Manuel
Legislative Attorney
December 1, 2014
Congressional Research Service
7-5700
www.crs.gov
R40633

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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-priced (or best-value) 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 first six of
these criteria are “performance standards,” and assess whether prospective contractors can be
expected to complete the contract work in a timely and satisfactory manner. In contrast, the
seventh criterion—“otherwise qualified and eligible”—encompasses so-called “collateral
requirements,” or other provisions of law specifying when contractors are disqualified from or
ineligible for awards. Such collateral requirements ensure that the government’s dealings with
contractors promote various socioeconomic goals incorporated into the procurement process.
Currently, there are five collateral requirements of permanent, government-wide applicability.
They exclude contractors who (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. Other collateral requirements apply to
specific funds or agencies (e.g., prohibitions on contracting with inverted domestic corporations).
In addition, 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, and judicial or other
tribunals will generally hear protests regarding responsibility determinations only in limited
circumstances. The Government Accountability Office (GAO), in particular, will only hear
protests which allege that special standards (i.e., definitive criteria) were not met, or that identify
evidence raising “serious concerns” that the contracting officer unreasonably failed to consider
available relevant information or otherwise violated statute or regulation.
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Contents
Mechanisms for Ensuring Contractor Responsibility ...................................................................... 2
Responsibility Determinations .................................................................................................. 3
Exclusion Determinations ......................................................................................................... 3
Performance Standards and Collateral Requirements ...................................................................... 5
General Standards ...................................................................................................................... 6
Special Standards ..................................................................................................................... 10
Procedures: Making and Protesting Determinations ...................................................................... 10

Tables
Table 1. Comparison of Nonresponsibility Determinations and Debarment ................................... 4
Table 2. Permanent Collateral Requirements of Government-Wide Applicability .......................... 9

Contacts
Author Contact Information........................................................................................................... 13

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ike 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
Lupon which it will make needed purchases.”1 In exercising this power, the government
typically awards contracts to the lowest-priced (or best-value) 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:
[t]he 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.
This report provides an overview of the legal standards and procedures currently used in making
responsibility determinations. Specifically, 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; and (3) the procedures for making
responsibility determinations.

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-priced 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) and 41 U.S.C. §3702(b) (“responsible bidders”
in sealed bidding); 10 U.S.C. §2305(b)(4)(C) and 41 U.S.C. §3703(c) (“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). Federal statutes provide a definition of “responsible source,” and generally require that contracts
be awarded to responsible sources. See, e.g., 41 U.S.C. §113 (defining “responsible source”); 41 U.S.C. §3702(b) (“The
executive agency shall evaluate the bids in accordance with section 3701(a) of this title without discussions with the
bidders and … shall award a contract with reasonable promptness to the responsible source whose bid conforms to the
solicitation and is most advantageous to the Federal Government, considering only price and the other price-related
factors included in the solicitation.”). However, most of the requirements pertaining to responsibility determinations
discussed herein derive from regulations (i.e., the FAR), not statute.
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Mechanisms for Ensuring Contractor Responsibility
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.6 Currently, under the FAR, the government relies upon two primary mechanisms for
avoiding nonresponsible contractors: responsibility determinations and exclusion (i.e., debarment
and suspension).7 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: A Legal Overview, by Kate
M. Manuel, describes the role of debarment and suspension in excluding nonresponsible
contractors.
Responsibility determinations are sometimes also confused with responsiveness determinations;8
evaluation of past performance in negotiated procurements;9 and qualification requirements.10
However, all of these focus upon contractors’ bids—not the contractors themselves—and are thus
beyond the scope of this report.

6 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
expressly included in federal procurement statutes until 1947-1949, when the Armed Services Procurement Act and the
Federal Property and Administrative Services Act were enacted, requiring awards to responsible bidders. See 10 U.S.C.
§2305(c) (1948) and 41 U.S.C. §253 (1950).
7 See 48 C.F.R. §§9.100 to 9.108-5 (nonresponsibility determinations); 48 C.F.R. §§9.400-9.409 (exclusion).
8 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 (April 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.
9 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) (“In
making the determination of responsibility, the contracting officer shall consider information in FAPIIS [the Federal
Awardee Performance Integrity Information System] ..., including information that is linked to FAPIIS such as from
the System for Award Management Exclusions and the Past Performance Information Retrieval System (PPIRS), and
any other relevant past performance information ....”). Past performance can also serve as an evaluation factor in
determining to whom to award contracts in negotiated procurements above the simplified acquisition threshold
(generally $150,000). See generally CRS Report R41562, Evaluating the “Past Performance” of Federal Contractors:
Legal Requirements and Issues, by Kate M. Manuel.
10 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. §3311(a). CICA allows federal agencies to consider
only contractors that have already met testing or quality-assurance requirements when certain conditions are satisfied.
See 10 U.S.C. §2319 and 41 U.S.C. §3311. 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 are generally thought to increase the likelihood that government contractors will perform
successfully by limiting the pool of eligible contractors to those that have already demonstrated specific capabilities.
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Responsibility Determinations
Contracting officers make responsibility determinations after considering seven factors, discussed
in more detail below, related to contractors’ resources and conduct.11 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.12
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.13 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.14 These determinations are
largely committed to the contracting officer’s discretion.15 Protesters have standing to challenge
responsibility determinations before the Government Accountability Office (GAO) or the federal
courts only in limited circumstances.16 Moreover, 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.17
Exclusion Determinations
Agencies also use exclusion—as debarment and suspension are collectively known—to avoid
dealing with nonresponsible contractors.18 Decisions to exclude are made by agency heads or
their designees (generally 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.”19

11 48 C.F.R. §9.104-1(a)-(g).
12 48 C.F.R. §9.103(b).
13 See, e.g., LORS Med. Corp., Comp. Gen. B-259829.2 (April 25, 1995) (contractor responsible by the time of award
because it had adequate financial resources after forming a joint venture subsequent to bid opening).
14 But see Old Dominion Dairy Prods., Inc. v. Sec’y of Def., 631 F.2d 953 (D.C. Cir. 1980) (holding that the
government denied a bidder found to be nonresponsible because of concerns about its integrity due process when it
failed to advise the bidder of these concerns on the grounds that notice and an opportunity to be heard are “essential”
“where a person’s good name, reputation, honor, or integrity is at stake because of what the Government is doing to
him”).
15 See, e.g., Molded Insulation Co., Comp. Gen. B-151834 (November 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.”).
16 See, e.g., GAO, Office of General Counsel, Bid Protests at GAO: A Descriptive Guide 39 (9th ed. 2009), available at
http://www.gao.gov/decisions/bidpro/bid/d09471sp.pdf (protester has 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.”).
17 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 corresponding 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).
18 See 48 C.F.R. §§9.406-1-9.406-5 (debarment) and 48 C.F.R. §§9.407-1-9.407-5 (suspension).
19 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
(continued...)
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Contractors are considered for exclusion only when specific conduct occurs, not as a routine
matter each time a contract is awarded. Exclusion is also government-wide and not contract-
specific.20 Excluded contractors are barred from receiving future government contracts, among
other things, for as long as the exclusion lasts.21 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.22 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.23 Contractors that are debarred
or suspended 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.24 While
exclusion determinations are not generally protestable, at least not with the GAO,25 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.26
Table 1. Comparison of Nonresponsibility Determinations and Debarment
Nonresponsibility
Debarment
Decision maker
Contracting officer
Debarring/suspending 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

(...continued)
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).
20 48 C.F.R. §9.405(a) (“[A]gencies shall not solicit offers from, award contracts to, or consent to subcontracts with
[debarred or suspended] contractors.”).
21 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)-(3); §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).
22 48 C.F.R. §9.406-4(a)(1) (debarment) and 48 C.F.R. §9.407-4(a) (suspension). Debarments are generally 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(b). See also CRS Legal Sidebar WSLG826, 11th Circuit Finds That
Agencies Have Broad Discretion to Suspend Affiliates of Federal Contractors, But Additional Challenges Are Pending
in Other Jurisdictions, by Kate M. Manuel.
23 48 C.F.R. §9.104-5(a)(2).
24 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 commonly viewed as “less serious” than debarment since it
is temporary. 48 C.F.R. §9.407-3(a)-(d).
25 4 C.F.R. §21.5(i).
26 See, e.g., Frequency Elecs., Inc. v. U.S. Dep’t of the Air Force, 1998 U.S. App. LEXIS 14888 (4th Cir. 1998) (“[The
court] may disturb the [agency’s exclusion] determination if 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)
(suggesting that a proposed debarment that was intended as a punishment could be impermissible).
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Nonresponsibility
Debarment
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
Necessary equipment and facilities
integrity or honesty that seriously affect the
present responsibility of a contractor
Otherwise qualified and eligible
Duration
Single contract award
Fixed time proportionate to the offense
(generally not more than three years)
Application
Applies to companies that have not previously
Generally 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
Generally not
Yes
Review of
Responsibility determinations may generally be
Exclusion determinations are generally not
Agency
challenged with GAO only when any special
protestable with GAO
Determinations
standards are not met or other “serious
concerns” are raised
Source: Congressional Research Service, based on Subparts 9.1 and 9.4 of the FAR.
Performance Standards and Collateral
Requirements
When determining whether prospective contractors are responsible, agencies consider both (1)
general standards that apply to all contracts, regardless of whether they are incorporated into the
solicitation, and (2) 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.27 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.28
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.”29 They do not apply to

27 48 C.F.R. §9.104-1(g).
28 See, e.g., 48 C.F.R. §22.802(b) (compliance with EEO requirements); 15 U.S.C. §637(d)(4)(C) (subcontracting with
small businesses); 15 U.S.C. §637(d)(5)(B) (same).
29 48 C.F.R. §9.102(a)(1)-(2).
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contracts with foreign, state, or local governments; other U.S. government agencies or their
instrumentalities; or “agencies for the blind or severely disabled.”30 While responsibility
determinations generally focus upon agencies’ prospective prime contractors, contracting officers
may inquire into the responsibility of prospective subcontractors in making their determinations.31
However, contracting officers are not required to independently investigate the responsibility of
each proposed subcontractor.32 Rather, once they determine that a contractor is responsible, they
may generally presume that the contractor has ascertained that its subcontractors are
responsible.33
General Standards
For prospective contractors to be determined responsible, they must satisfy seven criteria, each of
which is discussed in more detail below.34 These criteria require contractors to:
1. Have adequate financial resources to perform the contract, or the ability to
obtain them.35 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.36 A contractor’s filing for bankruptcy does not, in itself, mean that the
contractor lacks adequate financial resources.37 Contractors may demonstrate
their financial capacity by offering performance bonds.38
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.39
3. Have a satisfactory performance record. Under the FAR, a “prospective
contractor that is or recently has been seriously deficient in contract performance

30 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.
31 See, e.g., Linde Construction, Comp. Gen. B-206442 (March 17, 1983).
32 Id.
33 See, e.g., FHC Options, Inc., Comp. Gen. B-246793.3 (April 14, 1992).
34 48 C.F.R. §9.104-1(a)-(g).
35 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).
36 See, e.g., Costec Assocs., Comp. Gen. B-215827 (December 5, 1984) (working capital); Tomco, Inc., Comp. Gen. B-
210023.2 (February 15, 1984) (type of credit obtained by the contractor); Lear & Scout, Comp. Gen. B-143208 (June
29, 1960) (net worth, operating losses, cash flow).
37 See, e.g., Hunter Outdoor Prods., Inc., Comp. Gen. B-179922 (October 16, 1974).
38 33 Comp. Gen. Dec. 549 (May 12, 1954).
39 See, e.g., Sys. Dev. Corp., Comp. Gen. B-212624 (December 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
(March 30, 1978) (relocation, labor strike, delivery problems under other government contracts).
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shall be presumed to be nonresponsible, unless the contracting officer determines
that the circumstances were ... beyond the contractor’s control, or that the
contractor has taken appropriate corrective action.”40 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.41
Contracting officers must consider the circumstances surrounding any deficient
performance when making determinations,42 and poor performance or default on
one or several prior contracts is not, per se, sufficient ground for
disqualification.43
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.44 A lack of
integrity on the part of entities with which the contractor has close relationships
may also be considered.45 Due process could potentially be required when
nonresponsibility determinations are based on concerns about the contractor’s
integrity because contractors have been found to have a protected liberty interest
in being able to challenge allegations about their integrity that could deprive
them of their livelihood, as discussed below.46
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.47 Inability to implement necessary programs or
procedures (e.g., for quality assurance), unsatisfactory experience, or lack of
experience may be grounds for nonresponsibility determinations.48 Agencies may

40 48 C.F.R. §9.104-3(b).
41 See, e.g., Campbell Indus., Comp. Gen. B-238871 (July 3, 1990) (poor management and technical judgment); Ford
Motor Co., Comp. Gen. B-207179 (January 20, 1983) (late deliveries); United Power & Control Sys., Inc., Comp. Gen.
B-184662 (December 27, 1978) (nonconforming items); Bill Ward Painting & Decorating, Comp. Gen. B-184612
(January 28, 1976) (unsafe performance; inadequate supervision of subcontractors); Marine Eng’rs Beneficial Ass’n,
Comp. Gen. B-181265 (November 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
(September 2, 1969) (delinquent performance).
42 See, e.g., Marine Eng’rs Beneficial Ass’n, Comp. Gen. B-181265 (November 27, 1974).
43 See, e.g., id.
44 See, e.g., Traffic Moving Sys., Comp. Gen. B-248572 (September 3, 1992) (officers’ criminal convictions); Standard
Tank Cleaning Corp., Comp. Gen. B-245364 (January 2, 1992) (repeated violations of state law); Drexel Indus., Inc.,
Comp. Gen. B-189344 (December 6, 1977) (integrity offenses that are grounds for suspension under the FAR);
Greenwood’s Transfer & Storage Co., Inc., Comp. Gen. B-186438 (August 17, 1976) (pending debarment).
45 See, e.g., Speco Corp., Comp. Gen. B-211353 (April 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).
46 See Old Dominion Dairy Prods., 631 F.2d at 963.
47 See, e.g., Certified Testing Corp., Comp. Gen. B-212242 (November 8, 1983) (present organization); Otis Elevator
Corp., Comp. Gen. B-140481 (September 8, 1959) (prior experience).
48 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 (September 20, 1983) (unsatisfactory experience); CEA Indus., Inc.,
(continued...)
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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.49
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.50 Contracting
officers may also evaluate the safety or capacity of equipment or facilities.51
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 the collateral
requirements of permanent, government-wide applicability. Other collateral
requirements apply to procurements conducted using specific funds or by specific
agencies.52 Contracting officers may also consider whether contractors have or
can acquire any necessary federal licenses or permits.53

(...continued)
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, generally
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. §1126; 48 C.F.R. §9.104-1(c); 48
C.F.R. §15.305(a)(2)(iv).
49 See, e.g., Tri-Star Indus., Inc., Comp. Gen. B-254767.2 (January 18, 1994) (parent corporation); J.D. Miles & Sons,
Inc., Comp. Gen. B-251533 (April 7, 1993) (key employees); Sun Elec. Corp., Comp. Gen. B-202325 (August 10,
1981) (predecessor firm); Nello T. Leer Co., Comp. Gen. B-130910 (March 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).
50 See, e.g., McLaughlin Res. Corp., Comp. Gen. B-247118 (May 5, 1992) (agreement showing ability to use
warehouse in the future).
51 See, e.g., GSE Dynamics, Inc., Comp. Gen. B-175545 (August 17, 1972).
52 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 (October 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 (November 16, 2009). See also 48 C.F.R. §§9.108-1—9.108-5
(prohibiting the use of specified funds to contract with inverted domestic corporations).
53 See, e.g., What-Mac Contractors, Inc., Comp. Gen. B-192188 (September 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 (August 17, 1972).
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Table 2. Permanent Collateral Requirements of Government-Wide Applicability
Requirement Application
Equal Employment
• Contractors ineligible if they do not comply with the EEO requirements in
Opportunity (EEO)
Executive Order 11246, which, among other things, obligates contractors to “take
affirmative action to ensure that applicants are employed, and that employees are
(48 C.F.R. §22.802(b);
treated during employment, without regard to their race, color, religion, sex or
Exec. Order No. 11246,
national origin.”
30 Fed. Reg. 12319
(September 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
requires that all contracts whose expected value is over $650,000 ($1.5 million, in
(15 U.S.C. §637(d)(4)(C)
the case of construction contracts) include a “subcontracting plan” that provides
(plans in negotiated
the “maximum practicable opportunity” for various types of smal businesses to
procurements); 15 U.S.C.
participate in performing the contract. Plans must include percentage goals for
§637(d)(5)(B) (plans in
subcontracting with smal businesses; veteran-owned and service-disabled veteran-
sealed-bid procurements))
owned small businesses; Historically Underutilized Business Zone (HUBZone)
small businesses; small disadvantaged businesses; and women-owned smal
businesses. Plans must also describe the steps that contractors will take to ensure
that smal businesses have an equitable opportunity to compete for subcontracts.
Government Employees
• Agencies may not knowingly award contracts to government employees or
entities owned, or substantial y owned or control ed, by government employees.
(48 C.F.R. §§3.601-603)
• 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
systems engineering and technical direction, prepared specifications or work
(48 C.F.R. §§9.500-9.508)
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 allow 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, based on various sources cited in Table 2.
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Special Standards
In addition to the general standards (including collateral requirements), which typically apply to
all contracts,54 there may be special standards, also known as definitive criteria, that contractors
must meet in order to be determined responsible for specific acquisitions.55 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.56 Contracting officers may not waive any special standards when making awards.57
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.58
Contractors may rely upon the experience or facilities of their affiliates or subcontractors, or any
fellow venturer in a joint venture.59 Where experience is involved, they may also rely on
employees’ experiences while working for other companies.60
Procedures: Making and Protesting Determinations
Agency contracting officers must make an affirmative determination that a prospective contractor
is responsible prior to awarding the contract.61 They do so after considering a range of
information about the contractor. Specifically, they are required to consider information that is
included in the Federal Awardee Performance and Integrity Information System (FAPIIS),
“including information that is linked to FAPIIS such as from the Excluded Parties List System
(EPLS) and the Past Performance Information Retrieval System (PPIRS),” and other relevant
“past performance” information.62 In addition, they are encouraged to consider:
(1) [r]ecords and experience data, including verifiable knowledge of personnel within the
contracting office, audit offices, contract administration offices, and other contracting
offices.
(2) [t]he prospective contractor—including bid or proposal information (including the
certification at 52.209-5 or 52.212-3(h)), questionnaire replies, financial data, information on
production equipment, and personnel information.

54 But see 48 C.F.R. Subpart 1.4 (allowing contracting officers to deviate from the requirements of the FAR in certain
circumstances). For more on deviations, see generally CRS Report R42826, The Federal Acquisition Regulation
(FAR): Answers to Frequently Asked Questions, by Kate M. Manuel et al.
55 48 C.F.R. §9.104-2(a).
56 See, e.g., Breland Co., Comp. Gen. B-217552 (February 21, 1985) (unusual expertise); Aero Corp., Comp. Gen. B-
201581 (June 23, 1981) (special facilities).
57 See, e.g., The Mary Kathleen Collins Trust, Comp. Gen. B-261019.2 (September 29, 1995).
58 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 (December 3, 1980).
59 See, e.g., Tutor Saliba Corp., Comp. Gen. B-255756 (March 29, 1994).
60 See, e.g., Tucson Mobilephone, Inc., Comp. Gen. B-258408.3 (June 5, 1995).
61 48 C.F.R. §9.103(b).
62 48 C.F.R. §9.105-1(c). “Past performance” generally refers to “an offeror’s or contractor’s performance on active
and physically completed contracts.” 48 C.F.R. §2.101.
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(3) [c]ommercial sources of supplier information of a type offered to buyers in the private
sector.
(4) [p]reaward survey reports.63
(5) [o]ther sources such as publications; suppliers, subcontractors, and customers of the
prospective contractor; financial institutions; Government agencies; and business and trade
associations.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 the
Federal Awardee Performance and Integrity Information System (FAPIIS) database—whose
establishment was required under the act—when making responsibility determinations for
contracts in excess of the simplified acquisition threshold (generally $150,000).69 FAPIIS
contains 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 are, thus, required to review this information when making
responsibility determinations. However, what other information, if any, contracting officers
consider generally remains within their discretion, and they are not bound by any
recommendations contained in the information that they consider.71

63 A preaward survey is “an evaluation of a prospective contractor’s capability to perform a proposed contract.” 48
C.F.R. §2.101.
64 48 C.F.R. §9.105-1(c)(1)-(5) (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 (December 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)-(5) (“In addition, the contracting officer should use the following sources of
information ... ”) (emphasis added).
68 48 C.F.R. §9.105-1(c) (2007).
69 P.L. 110-417, §872(b)(1) & (c), 122 Stat. 4356 (October 14, 2008).
70 P.L. 110-417, at §872(b)(1) & (c). Prior to the Clean Contracting Act, determinations that contractors were
nonresponsible were recorded only in the contract files, whose contents are not easily accessed by other agencies or the
general public. See 48 C.F.R. §9.105-2(a)(1) (2008). However, 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: A Legal Overview, by Kate M.
Manuel.
71 See, e.g., Carl Weissman & Sons, Inc., Comp. Gen. B-190304 (February 17, 1978).
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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 “shall accept [its] decision ... and
award the contract to the concern.”74
Contractors do not routinely receive notice of nonresponsibility determinations concerning
them,75 and they are generally not entitled to due process when contracting officers make
responsibility determinations. Due process, where it applies, may require that parties get some
sort of notice and opportunity to be heard before the government takes actions involving their life,
liberty, or property.76 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.77 However, when nonresponsibility determinations
are based upon concerns about contractors’ integrity, contractors are potentially entitled to due
process because courts have recognized that contractors have a protected 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.78
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.79
Contracting officers have substantial discretion in making responsibility determinations,80 and
judicial or other tribunals will generally hear protests regarding responsibility determinations only

72 48 C.F.R. §9.103(b); Sec. Assistance Forces & Equip. Int’l, Inc., Comp. Gen. B-194876 (November 19, 1980).
73 48 C.F.R. §9.103(b); 48 C.F.R. Subpart 19.6.
74 48 C.F.R. §9.105-2(a)(2).
75 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
Part 509.105-2(a); 48 C.F.R. §509.105-2(a). Notice is intended to allow prospective contractors to correct problems for
future solicitations. Id.
76 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).
77 See, e.g., Old Dominion Dairy Prods., 631 F.2d at 961 (contractor cannot claim a property interest in a prospective
contract).
78 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).
79 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).
80 Molded Insulation Co., Comp. Gen. B-151834 (November 29, 1963).
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in limited circumstances. Such tribunals do not routinely review contracting officers’
responsibility determinations because such determinations are “practical, ... not legal
determination[s]”81 and “are not readily susceptible to judicial review.”82 The GAO, in particular,
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.”83 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.84 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.85 In addition, 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.86

Author Contact Information

Kate M. Manuel

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

81 Peter Kiewit Sons’ Co. v. U.S. Army Corps of Eng’r, 714 F.2d 163, 167 n.18 (D.C. Cir. 1983).
82 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).
83 See, e.g., Bid Protests at GAO, supra note 16, at 39. 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).
84 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).
85 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).
86 See, e.g., MCI Constructors, Comp. Gen. B-240655 (November 27, 1990); S.A.F.E. Exp. Corp., Comp. Gen. B-
151834 (April 22, 1983).
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