9.103 Policy
Source: FAR 9.103 on acquisition.gov
Contracts must only be awarded to responsible contractors, with an affirmative determination of responsibility required before any award.
Overview
FAR 9.103 establishes the fundamental policy that government contracts and purchases must only be made with responsible prospective contractors. It requires contracting officers to make an affirmative determination of responsibility before awarding any contract. If there is any doubt about a contractor's responsibility, the officer must determine nonresponsibility. Special procedures apply for small businesses, including reference to the Certificate of Competency process. The section also cautions against awarding contracts solely on the basis of lowest price, emphasizing that responsibility and performance history are critical to avoid costly issues such as defaults or late deliveries. Contractors must be able to demonstrate their responsibility, including that of their proposed subcontractors when necessary.
Key Rules
- Award to Responsible Contractors Only
- Contracts may only be awarded to contractors who are affirmatively determined to be responsible.
- Affirmative Determination Required
- Contracting officers must make a positive responsibility determination; absence of clear evidence requires a finding of nonresponsibility.
- Small Business Considerations
- For small businesses, contracting officers must follow Subpart 19.6 regarding Certificates of Competency and determinations of responsibility.
- Lowest Price Not Sole Criterion
- Awards should not be made solely on lowest price if responsibility is lacking; contractors must demonstrate responsibility, including for key subcontractors.
Responsibilities
- Contracting Officers: Must affirmatively determine contractor responsibility, follow special procedures for small businesses, and avoid lowest-price-only awards if responsibility is in question.
- Contractors: Must be prepared to demonstrate responsibility and, when required, the responsibility of their subcontractors.
- Agencies: Ensure oversight of responsibility determinations and compliance with small business procedures.
Practical Implications
- This section exists to protect the government from poor performance, defaults, and additional costs by ensuring only responsible contractors are awarded contracts.
- It impacts daily contracting by requiring thorough vetting of contractors and documentation of responsibility determinations.
- Common pitfalls include failing to document responsibility, overlooking small business procedures, or awarding contracts solely on price without considering performance risk.
(a) Purchases shall be made from, and contracts shall be awarded to, responsible prospective contractors only.
(b) No purchase or award shall be made unless the contracting officer makes an affirmative determination of responsibility. In the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of nonresponsibility. If the prospective contractor is a small business concern, the contracting officer shall comply with subpart 19.6, Certificates of Competency and Determinations of Responsibility. (If Section 8(a) of the Small Business Act (http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title15-section637&num=0&edition=prelim" target="_blank">15 U.S.C. 637) applies, see subpart 19.8.)
(c) The award of a contract to a supplier based on lowest evaluated price alone can be false economy if there is 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. A prospective contractor must affirmatively demonstrate its responsibility, including, when necessary, the responsibility of its proposed subcontractors.