48 C.F.R. § 9.105-2

9.105-2 Determinations and documentation.

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(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” 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

(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.

[48 FR 42142, Sept. 19, 1983, as amended at 75 FR 14066, Mar. 23, 2010; 77 FR 201, Jan. 3, 2012; 79 FR 24253, Apr. 29, 2014; 84 FR 47866, Sept. 10, 2019]

Notes of Decisions

Cited in 10 cases (1 in the last 5 years), 1993–2022 · leading case: Impresa Construzioni Geom. Domenico Garufi v. United States

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Impresa Construzioni Geom. Domenico Garufi v. United States (2001) cafc “48 C.F.R. § 9.105-2 (a). However, under the APA even where an explanation or reason is not required, a reviewing court has power to require an explanation.”

United Enterprise & Associates v. United States (2006) uscfc · cites it 3× “48 C.F.R. § 9.105-2 states, in pertinent part: "If the contracting officer determines and documents that a responsive small business lacks certain elements of responsibility, the contracting officer shall comply with the procedures [for COC review] in subpart 19.”

Beta Analytics International, Inc. v. United States (2004) uscfc “In Impresa Construzioni, a contracting officer apparently determined that a business met the responsibility standards and could be awarded a contract to perform services at a naval air station — a determination which requires no documentation under 48 C.F.R. § 9.105-2 (a). 238…”

Ravens Group, Inc. v. United States (2007) uscfc · cites it 2× “48 C.F.R. § 9.105-2 (a). Impresa Construzioni Geom.”

First Enterprise v. United States (2004) uscfc “" 48 C.F.R. § 9.105-2 (a)(1) (2004); see also Impresa Construzioni Geom.”

Impresa Construzioni Geom. Domenico Garufii v. United States (2002) uscfc “Although the contracting officer is not required to explain the basis for his responsibility determination, FAR § 9.”

YRT Services Corp. v. United States (1993) uscfc “48 C.F.R. §§ 9.105-2 (a) & 9.105-2(b) (1991).”

Southern Foods, Inc. v. United States (2007) uscfc “3d at 1337. The agency is entitled to a presumption of regularity.”

Anthem Builders, Inc. v. United States (2015) uscfc · cites it 2× “105-1 (Obtaining information), 48 C.F.R. § 9.105-2 (Determina- ■ tions and documentation), 48 C.”

The Logistics Company, Inc v. United States (2022) uscfc · cites it 2× “3d at 1337–38 (quoting 48 C.F. R. § 9.105-2(a)). The FAR does, however, require that “[d]ocuments and reports supporting a determination of responsibility or nonresponsibility .”

— 48 C.F.R. § 9.105-2(a) — 1 case

The Logistics Company, Inc v. United States (2022) uscfc “3d at 1337–38 (quoting 48 C.F. R. § 9.105-2(a)). The FAR does, however, require that “[d]ocuments and reports supporting a determination of responsibility or nonresponsibility .”

— 48 C.F.R. § 9.105-2(b) — 2 cases

Impresa Construzioni Geom. Domenico Garufii v. United States (2002) uscfc “Although the contracting officer is not required to explain the basis for his responsibility determination, FAR § 9.”

Ravens Group, Inc. v. United States (2007) uscfc “48 C.F.R. § 9.105-2 (a). Impresa Construzioni Geom.”

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