48 C.F.R. § 9.104-3

9.104-3 Application of standards.

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(a) Ability to obtain resources. Except to the extent that a prospective contractor has sufficient resources or proposes to perform the contract by subcontracting, the contracting officer shall require acceptable evidence of the prospective contractor's ability to obtain required resources (see 9.104-1(a), (e), and (f)). Acceptable evidence normally consists of a commitment or explicit arrangement, that will be in existence at the time of contract award, to rent, purchase, or otherwise acquire the needed facilities, equipment, other resources, or personnel. Consideration of a prime contractor's compliance with limitations on subcontracting shall take into account the time period covered by the contract base period or quantities plus option periods or quantities, if such options are considered when evaluating offers for award.

(b) Satisfactory performance record. A prospective contractor that is or recently has been seriously deficient in contract performance shall be presumed to be nonresponsible, unless the contracting officer determines that the circumstances were properly beyond the contractor's control, or that the contractor has taken appropriate corrective action. Past failure to apply sufficient tenacity and perseverance to perform acceptably is strong evidence of nonresponsibility. Failure to meet the quality requirements of the contract is a significant factor to consider in determining satisfactory performance. The contracting officer shall consider the number of contracts involved and the extent of deficient performance in each contract when making this determination. If the pending contract requires a subcontracting plan pursuant to Subpart 19.7, The Small Business Subcontracting Program, the contracting officer shall also consider the prospective contractor's compliance with subcontracting plans under recent contracts.

(c)(1) Affiliated concerns. Affiliated concerns (see Concern in 19.001 and Small business concern in 2.101) are normally considered separate entities in determining whether the concern that is to perform the contract meets the applicable standards for responsibility. However, the contracting officer shall consider the affiliate's past performance and integrity when they may adversely affect the prospective contractor's responsibility.

(2) Joint ventures. For a prospective contractor that is a joint venture, the contracting officer shall consider the past performance of the joint venture. If the joint venture does not demonstrate past performance for award, the contracting officer shall consider the past performance of each party to the joint venture.

(d)(1) Small business concerns. Upon making a determination of nonresponsibility with regard to a small business concern, the contracting officer shall refer the matter to the Small Business Administration, which will decide whether to issue a Certificate of Competency (see subpart 19.6).

(2) Limitations on subcontracting. A small business that is unable to comply with the limitations on subcontracting may be considered nonresponsible (see 52.219-3, Notice of HUBZone Set-Aside or Sole-Source Award; 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns; 52.219-14, Limitations on Subcontracting; 52.219-27, Notice of Set-Aside for, or Sole-Source Award to, Service-Disabled Veteran-Owned Small Business (SDVOSB) Concerns Eligible Under the SDVOSB Program; 52.219-29, Notice of Set-Aside for, or Sole-Source Award to, Economically Disadvantaged Women-Owned Small Business Concerns; and 52.219-30, Notice of Set-Aside for, or Sole-Source Award to, Women-Owned Small Business Concerns Eligible Under the Women-Owned Small Business Program). A small business that has not agreed to comply with the limitations on subcontracting may be considered nonresponsive.

[48 FR 42142, Sept. 19, 1983, as amended at 53 FR 27463, July 20, 1988; 53 FR 34226, Sept. 2, 1988; 56 FR 55378, Oct. 25, 1991; 60 FR 48260, Sept. 18, 1995; 61 FR 67410, Dec. 20, 1996; 62 FR 44820, Aug. 22, 1997; 63 FR 70267, Dec. 18, 1998; 65 FR 80264, Dec. 20, 2000; 66 FR 66989, Dec. 27, 2001; 67 FR 13068, Mar. 20, 2002; 75 FR 14065, Mar. 23, 2010; 85 FR 11756, Feb. 27, 2020; 85 FR 67616, Oct. 23, 2020; 87 FR 58223, Sept. 23, 2022; 89 FR 13956, Feb. 23, 2024]

Notes of Decisions

Cited in 21 cases, 1987–2017 · leading case: CSE Constr. Co. v. United States, 58 Fed. Cl. 230 (Fed. Cl. 2003).

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CSE Constr. Co. v. United States, 58 Fed. Cl. 230 (Fed. Cl. 2003). · cites it 6× “See 48 C.F.R. § 9.104-3 (b) (2001). 10 *249 The defendant argues that FAR 9.”

Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009). “104 — 3(b), 48 C.F.R. § 9.104-3 (b). In that regard, it observes that FAR § 9.”

United Enter. & Assocs. v. United States, 70 Fed. Cl. 1 (Fed. Cl. 2006). · cites it 2× “48 C.F.R. § 9.104-3 states, in pertinent part: "If a small business concern's offer that would otherwise be accepted is to be rejected because of a determination of nonresponsibility, the contracting officer shall refer the matter to the [SBA], which will decide whether or not…”

Evers v. Astrue, 536 F.3d 651 (7th Cir. 2008). “See 48 C.F.R. § 9.104-3 (b). Eventually, Evers and SSA agreed that SSA should have nonetheless referred his quotes to the Small Business Administration (SBA) before determining that he was not a responsible bidder; the GAO dismissed the protests based on SSA’s representation…”

OSG Prod. Tankers LLC v. United States, 82 Fed. Cl. 570 (Fed. Cl. 2008). · cites it 2× “” 48 C.F.R. § 9.104-3 (c). She investigated Product Tankers and OSG before making a responsibility determination.”

Vintage Autoworks, Inc. v. United States, 132 Fed. Cl. 143 (Fed. Cl. 2017). · cites it 2× “48 C.F.R. § 9.104-3 (a). Flynn Jensen’s offer satisfied this by evidence of a Memorandum of Understanding (“MOU”) with the subcontractor Orlando Auto, agreeing to provide *155 storage space at its facility at 4636 West Colonial Drive in Orlando, Florida.”

Ulstein Mar., Ltd. & Schottel of Am., Inc. v. United States of Am., 833 F.2d 1052 (1st Cir. 1987). “Since TMI had certified that it was a small business, the Navy referred its file on TMI to the SBA pursuant to 48 C.F.R. § 9.104-3 (e) (1985). Under 15 U.”

Ncl Logistics Co. v. United States, 109 Fed. Cl. 596 (Fed. Cl. 2013). “104-3(a)); (b) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments; *604 (c) Have a satisfactory performance record (see 48 CFR 9.104-3(b) and part 42, subpart…”

Celtech, Inc. v. United States, 24 Cl. Ct. 269 (Ct. Cl. 1991). · cites it 4× “” 48 C.F.R. § 9.104-3 (e) (emphasis added).”

Iceland S.S. Co., Ltd.-Eimskip v. United States Dep't of the Army, 201 F.3d 451 (D.C. Cir. 2000). “…bank. See JA 187. In any event, the regulations provide that affiliated entities are to be considered separately. See 48 C.F.R. § 9.104-3 (c).”

Afghan Am. Army Servs. Corp. v. United States, 106 Fed. Cl. 714 (Fed. Cl. 2012). “104 — 3(a)); (b) Be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments; (e)Have a satisfactory performance record (see 48 CFR 9.104-3(b) and part 42, subpart 42.”

Cavalier Clothes, Inc. v. The United States, 810 F.2d 1108 (Fed. Cir. 1987). “Because Cavalier is a small business, the contracting officer was required to refer the matter to the Small Business Administration (SBA) pursuant to 48 C.F.R. § 9.104-3 (e) (1985). The SBA conducted a thorough review of the matter including a plant survey and financial survey…”

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— 48 C.F.R. § 9.104-3(b) — 5 cases

CSE Constr. Co. v. United States, 58 Fed. Cl. 230 (Fed. Cl. 2003). “See 48 C.F.R. § 9.104-3 (b) (2001). 10 *249 The defendant argues that FAR 9.”

Chas. H. Tompkins Co. v. United States, 43 Fed. Cl. 716 (Fed. Cl. 1999).

Ettefaq-Meliat-Hai-Afghan Consulting, Inc. v. United States, 106 Fed. Cl. 429 (Fed. Cl. 2012).

— 48 C.F.R. § 9.104-3(c) — 1 case

Geo-Con, Inc. v. United States, 783 F. Supp. 1 (D.D.C. 1992).

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