9.105-2 Determinations and documentation
Source: FAR 9.105-2 on acquisition.gov
Contracting officers must thoroughly document and timely report responsibility determinations, especially nonresponsibility findings, in accordance with FAPIIS and SBA procedures to ensure transparency and compliance.
Overview
FAR 9.105-2 outlines the requirements for contracting officers to make, document, and support determinations of contractor responsibility or nonresponsibility. It details the procedures for documenting these determinations, especially when rejecting an offer due to nonresponsibility, and specifies the use of the Federal Awardee Performance and Integrity Information System (FAPIIS) for certain nonresponsibility determinations. The section also addresses special procedures for small businesses, including the role of the Small Business Administration (SBA) and Certificates of Competency, and provides guidance on the public availability and handling of sensitive information in FAPIIS.
Key Rules
- Determination of Responsibility/Nonresponsibility
- The contracting officer’s signature on a contract is a determination of responsibility. If a contractor is found nonresponsible, a signed, written determination stating the basis must be placed in the contract file.
- Small Business Concerns
- If a small business is found lacking responsibility, the contracting officer must follow subpart 19.6 procedures. If the SBA issues a Certificate of Competency, the contract must be awarded to the small business.
- Supporting Documentation
- All supporting documents, including preaward surveys, FAPIIS information, and Certificates of Competency, must be included in the contract file.
- FAPIIS Reporting
- For contracts above the simplified acquisition threshold, nonresponsibility determinations based on performance or integrity (without an SBA Certificate of Competency) must be documented in FAPIIS within 3 working days.
- Public Disclosure and FOIA
- Most FAPIIS information becomes public after 14 days, except for certain exemptions. Information covered by FOIA exemptions must not be posted or must be removed if challenged.
Responsibilities
- Contracting Officers: Must make, document, and file determinations; report certain nonresponsibility findings in FAPIIS; ensure accuracy and timeliness; follow SBA procedures for small businesses; and handle FOIA-exempt information properly.
- Contractors: May challenge FAPIIS postings under FOIA; small businesses may seek SBA Certificates of Competency.
- Agencies: Oversee compliance with documentation, reporting, and FOIA procedures.
Practical Implications
This section ensures transparency and accountability in contractor responsibility determinations, especially for small businesses and contracts above the simplified acquisition threshold. Proper documentation and timely FAPIIS reporting are critical, and mishandling FOIA-exempt information or failing to follow SBA procedures can lead to compliance issues or protests.
(a) Determinations.
(1) 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, which shall state the basis for the determination.
(2) If the contracting officer determines that a responsive small business lacks certain elements of responsibility, the contracting officer shall comply with the procedures in subpart 19.6. When a Certificate of Competency is issued for a small business concern (see subpart 19.6), the contracting officer shall accept the Small Business Administration’s decision to issue a Certificate of Competency and award the contract to the concern.
(b) Support documentation.
(1) Documents and reports supporting a determination of responsibility or nonresponsibility, including any preaward survey reports, the use of FAPIIS information (see 9.104-6), and any applicable Certificate of Competency, must be included in the contract file.
(2)
(i) The contracting officer shall document the determination of nonresponsibility in FAPIIS (available at https://www.cpars.gov" target="_blank">https://www.cpars.gov) if-
(A) The contract is valued at more than the simplified acquisition threshold;
(B) The determination of nonresponsibility is based on lack of satisfactory performance record or satisfactory record of integrity and business ethics; and
(C) The Small Business Administration does not issue a Certificate of Competency.
(ii) The contracting officer is responsible for the timely submission, within 3 working days, and sufficiency, and accuracy of the documentation regarding the nonresponsibility determination.
(iii) As required by section 3010 of the Supplemental Appropriations Act, 2010 (Pub. L. 111-212), all information posted in FAPIIS on or after April 15, 2011, except past performance reviews, will be publicly available. FAPIIS consists of two segments-
(A) The non-public segment, into which Government officials and contractors post information, which can only be viewed by-
(1) Government personnel and authorized users performing business on behalf of the Government; or
(2) An offeror or contractor, when viewing data on itself; and
(B) The publicly-available segment, to which all data in the non-public segment of FAPIIS is automatically transferred after a waiting period of 14 calendar days, except for-
(1) Past performance reviews required by subpart 42.15;
(2) Information that was entered prior to April 15,2011; or
(3) Information that is withdrawn during the 14-calendar-day waiting period by the Government official who posted it in accordance with paragraph (b)(2)(iv) of this section.
(iv) The contracting officer, or any other Government official, shall not post any information in the non-public segment of FAPIIS that is covered by a disclosure exemption under the Freedom of Information Act. If the contractor asserts within 7 calendar days, to the Government official who posted the information, that some of the information posted to the non-public segment of FAPIIS is covered by a disclosure exemption under the Freedom of Information Act, the Government official who posted the information must within 7 calendar days remove the posting from FAPIIS and resolve the issue in accordance with agency Freedom of Information Act procedures, prior to reposting the releasable information.