48 C.F.R. § 9.105-1

9.105-1 Obtaining information.

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(a) Before making a determination of responsibility, the contracting officer shall possess or obtain information sufficient to be satisfied that a prospective contractor currently meets the applicable standards in 9.104.

(b)(1) Generally, the contracting officer shall obtain information regarding the responsibility of prospective contractors, including requesting preaward surveys when necessary (see 9.106), promptly after a bid opening or receipt of offers. However, in negotiated contracting, especially when research and development is involved, the contracting officer may obtain this information before issuing the request for proposals. Requests for information shall ordinarily be limited to information concerning—

(i) The low bidder; or

(ii) Those offerors in range for award.

(2) Preaward surveys shall be managed and conducted by the surveying activity.

(i) If the surveying activity is a contract administration office—

(A) That office shall advise the contracting officer on prospective contractors' financial competence and credit needs; and

(B) The administrative contracting officer shall obtain from the auditor any information required concerning the adequacy of prospective contractors' accounting systems and these systems' suitability for use in administering the proposed type of contract.

(ii) If the surveying activity is not a contract administration office, the contracting officer shall obtain from the auditor any information required concerning prospective contractors' financial competence and credit needs, the adequacy of their accounting systems, and these systems' suitability for use in administering the proposed type of contract.

(3) Information on financial resources and performance capability shall be obtained or updated on as current a basis as is feasible up to the date of award.

(c) In making the determination of responsibility, the contracting officer shall consider information available through FAPIIS (see 9.104-6) with regard to the offeror and any immediate owner, predecessor, or subsidiary identified for that offeror in FAPIIS, including information that is linked to FAPIIS such as from SAM, and CPARS, as well as any other relevant past performance information on the offeror (see 9.104-1(c) and subpart 42.15). In addition, the contracting officer should use the following sources of information to support such determinations:

(1) Records and experience data, including verifiable knowledge of personnel within the contracting office, audit offices, contract administration offices, and other contracting offices.

(2) The prospective contractor—including bid or proposal information (including the certification at 52.209-5 or 52.212-3(h) (see 9.104-5)), questionnaire replies, financial data, information on production equipment, and personnel information.

(3) Commercial sources of supplier information of a type offered to buyers in the private sector.

(4) Preaward survey reports (see 9.106).

(5) Other sources such as publications; suppliers, subcontractors, and customers of the prospective contractor; financial institutions; Government agencies; and business and trade associations.

(d) Contracting offices and cognizant contract administration offices that become aware of circumstances casting doubt on a contractor's ability to perform contracts successfully shall promptly exchange relevant information.

[48 FR 42142, Sept. 19, 1983, as amended at 51 FR 27119, July 29, 1986; 52 FR 9038, Mar. 20, 1987; 54 FR 19813, May 8, 1989; 60 FR 16718, Mar. 31, 1995; 60 FR 33065, June 26, 1995; 61 FR 39201, July 26, 1996; 69 FR 76349, Dec. 20, 2004; 73 FR 21798, Apr. 22, 2008; 74 FR 31560, July 1, 2009; 75 FR 14066, Mar. 23, 2010; 78 FR 37678, June 21, 2013; 81 FR 11991, Mar. 7, 2016; 81 FR 58638, Aug. 25, 2016; 81 FR 91638, Dec. 16, 2016; 82 FR 51530, Nov. 6, 2017; 84 FR 19844, May 6, 2019; 84 FR 47866, Sept. 10, 2019]

Notes of Decisions

Cited in 12 cases (1 in the last 5 years), 1994–2023 · leading case: Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009).

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Weeks Marine, Inc. v. United States, 575 F.3d 1352 (Fed. Cir. 2009). · cites it 2× “105-1, 48 C.F.R. § 9.105-1 , an agency can obtain significant information about a contractor who is “the low bidder” or “in range for [the] award.”

Centech Grp., Inc. v. United States, 554 F.3d 1029 (Fed. Cir. 2009). “See 48 C.F.R. § 9.105-1 (2008) (providing details as to the information considered in a responsibility determination).”

Enhanced Vets. Solutions, Inc. v. United States, 131 Fed. Cl. 565 (Fed. Cl. 2017). “1999) (citing 48 C.F.R. § 9.105-1 (a)). While the Federal Circuit has noted that “this discretion is.”

John C. Grimberg Co., Inc. v. United States, 185 F.3d 1297 (Fed. Cir. 1999). “” 48 C.F.R. § 9.105-1 (a) (1998) (emphasis added).”

Supreme Foodservice Gmbh v. United States, 112 Fed. Cl. 402 (Fed. Cl. 2013). “48 C.F.R. § 9.105-1 (a) provides that ”[b]efore making a determination of responsibility, the contracting officer shall possess or obtain information sufficient to be satisfied that a prospective contractor currently meets the applicable [responsibility] standards [of Section] 9.”

VMS Hotel Partners v. United States, 30 Fed. Cl. 512 (Fed. Cl. 1994). · cites it 2× “See 48 C.F.R. § 9.105-1 . IV. Plaintiff acknowledges that if CMS’s designation of the place of performance in its bid raises exclusively an issue of “responsibility,” then the contracting officer properly allowed CMS to change its place of performance from the Concord Holiday to…”

Ryan Co. v. United States, 43 Fed. Cl. 646 (Fed. Cl. 1999). “48 C.F.R. § 9.105-1 (1998). In identifying whether a particular requirement is related to responsiveness or responsibility, the distinction then “is whether the bidder will conform to the IFB, as opposed to how the bidder will accomplish conformance.”

Anthem Builders, Inc. v. United States, 121 Fed. Cl. 15 (Fed. Cl. 2015). · cites it 2× “101 (Definitions), 48 C.F.R. § 9.105-1 (Obtaining information), 48 C.”

Hickey v. Chadick, 649 F. Supp. 2d 770 (S.D. Ohio 2009). “” 48 C.F.R. § 9.105-1 (c). This regulation is extremely broad, referring to government agencies in general as a source of information when determining a contractor’s responsibility.”

Precision Stand., Inc. v. United States, 71 Fed. Cl. 216 (Fed. Cl. 2006). “48 C.F.R. § 9.105-1 (2005). The regulation does not require the contracting officer personally to conduct the search for relevant information.”

Liff v. Off. of Inspector Gen. for the U.S. Dep't of Labor (D.D.C. 2016). · cites it 2× “at 15-16 (citing 48 C.F.R. § 9.105-1 (c)(5)). 4 As to Liff’s Bivens claim that the individual Defendants should be liable for violating his procedural-due-process rights, the Court addressed a number of defenses.”

J.E. McAmis, Inc. v. United States (Fed. Cl. 2023). “In short, an important distinction between responsiveness and responsibility is the CO is confined to reviewing materials submitted with the bid, as well as available facts at bid opening, in determining responsiveness, but the Agency may request additional information from…”

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