19.602-1 Referral
Source: FAR 19.602-1 on acquisition.gov
Contracting officers must refer nonresponsibility determinations for small business offerors to the SBA and withhold award for at least 15 business days, ensuring due process and documentation.
Overview
FAR 19.602-1 outlines the procedures contracting officers must follow when an apparent successful small business offeror is found lacking in responsibility elements (such as capability, competency, or integrity). The regulation requires the contracting officer to withhold contract award and refer the matter to the appropriate SBA Government Contracting Area Office, unless the offeror is ineligible under specific circumstances (e.g., not meeting certain standards, suspension, or debarment). The referral must include detailed documentation supporting the nonresponsibility determination. In cases of partial set-asides, the entire quantity the concern may be entitled to must be referred if the business is responsible. Only one referral per acquisition is allowed, and contract award must be withheld for at least 15 business days after SBA receipt of a complete referral package, unless otherwise agreed.
Key Rules
- Referral Requirement
- If a small business is found nonresponsible, the contracting officer must withhold award and refer the case to the SBA Area Office, unless exceptions apply.
- Referral Documentation
- The referral must include a notice of nonresponsibility and all supporting documentation, such as the solicitation, offer, preaward survey, and technical data.
- Partial Set-Aside
- For partial set-asides, the full quantity the concern may be entitled to is referred if the business is responsible.
- Single Referral Rule
- Only one referral per acquisition is permitted at a time.
- Award Withholding Period
- Contract award must be withheld for 15 business days (or longer if agreed) after SBA receives a complete referral.
Responsibilities
- Contracting Officers: Must document nonresponsibility, withhold award, prepare and submit a complete referral package to the SBA, and observe the award withholding period.
- Contractors: Should ensure they meet all responsibility criteria and be prepared to respond if referred to the SBA.
- Agencies: Must follow internal procedures for referrals and ensure compliance with SBA coordination.
Practical Implications
- This section ensures small businesses have an opportunity for SBA review before being denied contracts for nonresponsibility.
- Delays in award can occur if documentation is incomplete or if the process is not followed precisely.
- Proper documentation and timely communication with the SBA are critical to avoid protest or process delays.
(a) Upon determining and documenting that an apparent successful small business offeror lacks certain elements of responsibility (including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting, but for sureties see 28.101-3(f) and 28.203-1(e)), the contracting officer shall-
(1) Withhold contract award (see 19.602-3); and
(2) Refer the matter to the cognizant SBA Government Contracting Area Office (Area Office) serving the area in which the headquarters of the offeror is located, in accordance with agency procedures, except that referral is not necessary if the small business concern-
(i) Is determined to be unqualified and ineligible because it does not meet the standard in 9.104-1(g), provided, that the determination is approved by the chief of the contracting office; or
(ii) Is suspended or debarred under Executive Order 11246 or subpart 9.4.
(b) If a partial set-aside is involved, the contracting officer shall refer to the SBA the entire quantity to which the concern may be entitled, if responsible.
(c) The referral shall include-
(1) A notice that a small business concern has been determined to be nonresponsible, specifying the elements of responsibility the contracting officer found lacking; and
(2) If applicable, a copy of the following:
(i) Solicitation.
(ii) Final offer submitted by the concern whose responsibility is at issue for the procurement.
(iii) Abstract of bids or the contracting officer’s price negotiation memorandum.
(iv) Preaward survey.
(v) Technical data package (including drawings, specifications and statement of work).
(vi) Any other justification and documentation used to arrive at the nonresponsibility determination.
(d) For any single acquisition, the contracting officer shall make only one referral at a time regarding a determination of nonresponsibility.
(e) Contract award shall be withheld by the contracting officer for a period of 15 business days (or longer if agreed to by the SBA and the contracting officer) following receipt by the appropriate SBA Area Office of a referral that includes all required documentation.