The Federal Acquisition Regulation (FAR) requires prospective contractors to be deemed responsible before they are awarded federal contracts. FAR subpart 9.1 prescribes policies, standards, and procedures for determining whether prospective contractors and subcontractors are responsible. FAR 9.103 requires contracting officers to make an affirmative determination of responsibility before award. This affirmative determination must be reasonable and factually supported. Prime contractors may also be required to demonstrate the responsibility of their proposed subcontractors when necessary. FAR 9.104 states general and special standards that prospective contractors must meet to demonstrate responsibility to receive contracts.

General Standards

The general standards listed in FAR 9.104 require prospective contractors to:

• Either have adequate financial resources to perform the contract at issue or have the ability to obtain them.
• Have the ability to comply with the required or proposed performance or delivery schedule, taking into consideration all existing commercial and governmental commitments.
• Have a satisfactory past performance record. Notably, the responsibility determination of prospective contractors cannot solely be made based on a lack of relevant performance history, subject to exceptions of FAR 9.104–2.
• Have a satisfactory record of integrity and business ethics.
• Possess or have the ability to obtain the necessary organization, experience, accounting and operational controls, and technical skills.
• Be otherwise qualified and eligible to receive an award under applicable laws and regulations.

Companies must meet specific responsibility standards before being awarded U.S. federal contracts. The Federal Acquisition Regulation (FAR) lists prospective contractors’ general and special responsibility standards. FAR 9.103(b) requires contracting officers (CO) to make affirmative determinations of responsibility that are reasonably and factually supported. Disappointed contractors with adequate standing may challenge these determinations through post-award bid protests. Such responsibility determination challenges may be brought to the Court of Federal Claims (COFC) by alleging that the responsibility determination decision lacks a rational basis under the Administrative Procedure Act (APA) or involves a regulatory violation. Alternatively, such challenges may be brought to the Government Accountability Office (GAO) under its bid protest adjudication authority. However, both forums consider responsibility determinations firmly committed to the CO’s discretion, making such protests challenging to sustain. Nevertheless, the GAO will consider bid protests alleging that the CO’s determination of responsibility either unreasonably failed to consider relevant information or that the awardee could not meet the definitive criteria established by the solicitation.

The National Defense Authorization Act (NDAA) of 2015 requires procuring agencies to verify that all potential awardees of contracts performed in Africa and the Middle East are eligible for base access. Procuring agencies determine a contractor’s base access eligibility by checking the Joint Contingency Contracting System (JCCS) vendor vetting database. The JCCS allows contractors to view available solicitations for local work in these regions and submit proposals in response. In such solicitations, an offeror’s registration in JCCS and its ability to access the relevant bases, as reflected in the JCCS, are considered definitive responsibility criteria. Such criteria are objective RFP standards, which are included to evaluate offerors’ ability to perform the contract successfully. If an offeror fails to meet these specifically included criteria, it is deemed non-responsible and cannot be awarded the contract. Unsuccessful offerors facing such adverse determinations may file a bid protest challenging their exclusion. However, to sustain such protests, the protestors must demonstrate that the base access ineligibility decision underlying the adverse responsibility determination was made in bad faith or due to erroneous decision-making by the government under its procurement authority. Alternatively, the protestor may show a lack of reasonable basis for the determination.

The government often adds products and services to its existing contracts by executing contract modifications and amending the relevant terms. Under the General Services Administration (GSA) Federal Supply Schedule (FSS) program, a vendor’s schedule contract may be modified to add product or service offerings and revise its price list. Such modifications are generally considered matters of contract administration and therefore may not be challenged in a bid protest. However, an exception to this general rule may arise under the Competition in Contracting Act’s (CICA) full and open competition requirements, which remain applicable notwithstanding the FSS program’s streamlined acquisition procedures. Under this exception, a protester’s allegations that a contract modification changes the work beyond the scope of the original contract place the protest within the Government Accountability Office’s (GAO) bid protest jurisdiction. This is because the additional work covered by the modification is otherwise subject to CICA’s competition requirements, unless a valid determination is obtained that deems the work appropriate for procurement on a sole-source basis. However, as with any protest, the protester must satisfy the requirement of being an interested party. Notably, prospective suppliers or subcontractors who supply competing products or services to FSS vendors may not raise such protests, as their economic interests are not considered sufficiently direct to confer interested party status.