9.202 Policy
Source: FAR 9.202 on acquisition.gov
FAR 9.202 ensures qualification requirements are justified, transparent, and not unduly restrictive, promoting fair competition and clear opportunities for offerors to qualify.
Overview
FAR 9.202 establishes the policy for setting and managing qualification requirements in federal contracting. It mandates that agencies justify and document the need for qualification requirements, provide clear criteria and opportunities for potential offerors to qualify, and ensure transparency and fairness in the process. The regulation also outlines procedures for waivers, revalidation of requirements, and the handling of challenges or delays related to qualification standards.
Key Rules
- Written Justification for Qualification Requirements
- Agencies must prepare a written justification explaining the necessity, estimated costs, and specific (least restrictive) requirements for qualification before establishing such requirements.
- Disclosure and Opportunity to Qualify
- Potential offerors must be provided with all qualification requirements and a prompt, fair opportunity to demonstrate their ability to meet them, typically at their own expense.
- Testing and Evaluation Services
- If third-party contractors provide testing, they must not have a conflict of interest and must protect offerors’ technical data.
- Notification of Qualification Status
- Agencies must promptly inform offerors of their qualification status and provide specific reasons if not qualified.
- Waivers and Exceptions
- Under certain circumstances, agencies may waive some requirements for up to two years, but not for QPL, QML, or QBL items.
- Offeror Rights
- Offerors who can meet qualification standards before award cannot be excluded solely for not being on a QPL/QML/QBL or not previously identified as qualified.
- No Mandatory SBA Referral
- Contracting officers are not required to refer disputes over qualification requirements to the SBA.
- No Delay Required
- Agencies are not obligated to delay awards to allow offerors time to qualify.
- Periodic Review
- Qualification requirements must be reviewed and revalidated at least every 7 years, excluding waiver periods.
Responsibilities
- Contracting Officers: Ensure proper justification, disclosure, prompt notification, and compliance with review timelines; do not delay awards unnecessarily.
- Contractors: Request qualification requirements, demonstrate compliance, and respond promptly to agency communications.
- Agencies: Oversee justification, waiver, and revalidation processes; ensure fair and transparent qualification procedures.
Practical Implications
This section ensures that qualification requirements are justified, transparent, and not unduly restrictive, promoting competition and fairness. Contractors must be proactive in seeking qualification information and demonstrating compliance. Agencies must balance the need for qualified sources with the obligation to avoid unnecessary barriers to competition. Common pitfalls include inadequate justification, failure to notify offerors, or not adhering to review timelines.
(a)
(1) The head of the agency or designee shall, before establishing a qualification requirement, prepare a written justification-
(i) Stating the necessity for establishing the qualification requirement and specifying why the qualification requirement must be demonstrated before contract award;
(ii) Estimating the likely costs for testing and evaluation which will be incurred by the potential offeror to become qualified; and
(iii) Specifying all requirements that a potential offeror (or its product) must satisfy in order to become qualified. Only those requirements which are the least restrictive to meet the purposes necessitating the establishment of the qualification requirements shall be specified.
(2) Upon request to the contracting activity, potential offerors shall be provided-
(i) All requirements that they or their products must satisfy to become qualified; and
(ii) At their expense (but see 9.204(a)(2) with regard to small businesses), a prompt opportunity to demonstrate their abilities to meet the standards specified for qualification using qualified personnel and facilities of the agency concerned, or of another agency obtained through interagency agreements or under contract, or other methods approved by the agency (including use of approved testing and evaluation services not provided under contract to the agency).
(3) If the services in paragraph (a)(2)(ii) of this section are provided by contract, the contractors selected to provide testing and evaluation services shall be-
(i) Those that are not expected to benefit from an absence of additional qualified sources; and
(ii) Required by their contracts to adhere to any restriction on technical data asserted by the potential offeror seeking qualification.
(4) A potential offeror seeking qualification shall be promptly informed as to whether qualification is attained and, in the event it is not, promptly furnished specific reasons why qualification was not attained.
(b) When justified under the circumstances, the agency activity responsible for establishing a qualification requirement shall submit to the advocate for competition for the procuring activity responsible for purchasing the item subject to the qualification requirement, a determination that it is unreasonable to specify the standards for qualification which a prospective offeror (or its product) must satisfy. After considering any comments of the advocate for competition reviewing the determination, the head of the procuring activity may waive the requirements of paragraph (a)(1)(ii) through (a)(4) of this section for up to 2 years with respect to the item subject to the qualification requirement. A copy of the waiver shall be furnished to the head of the agency or other official responsible for actions under paragraph (a)(1) of this section. The waiver authority provided in this paragraph does not apply with respect to qualification requirements contained in a QPL, QML, or QBL.
(c) If a potential offeror can demonstrate to the satisfaction of the contracting officer that the potential offeror (or its product) meets the standards established for qualification or can meet them before the date specified for award of the contract, a potential offeror may not be denied the opportunity to submit and have considered an offer for a contract solely because the potential offeror-
(1) Is not on a QPL, QML, or QBL maintained by the Department of Defense (DoD) or the National Aeronautics and Space Administration (NASA); or
(2) Has not been identified as meeting a qualification requirement established after October 19,1984, by DoD or NASA; or
(3) Has not been identified as meeting a qualification requirement established by a civilian agency (not including NASA).
(d) The procedures in subpart 19.6 for referring matters to the Small Business Administration are not mandatory on the contracting officer when the basis for a referral would involve a challenge by the offeror to either the validity of the qualification requirement or the offeror’s compliance with such requirement.
(e) The contracting officer need not delay a proposed award in order to provide a potential offeror with an opportunity to demonstrate its ability to meet the standards specified for qualification. In addition, when approved by the head of an agency or designee, a procurement need not be delayed in order to comply with paragraph (a) of this section.
(f) Within 7 years following enforcement of a QPL, QML, or QBL by DoD or NASA, or within 7 years after any qualification requirement was originally established by a civilian agency other than NASA, the qualification requirement shall be examined and revalidated in accordance with the requirements of paragraph (a) of this section. For DoD and NASA, qualification requirements other than QPL’s, QML’s and QBL’s shall be examined and revalidated within 7 years after establishment of the requirement under paragraph (a) of this section. Any periods for which a waiver under paragraph (b) of this section is in effect shall be excluded in computing the 7 years within which review and revalidation must occur.