Part 9 - Contractor Qualifications

9.000 Scope of part.

Subpart 9.1 - Responsible Prospective Contractors

9.100 Scope of subpart.

9.101 Definitions.

9.102 Applicability.

9.103 Policy.

9.104 Standards.

9.104-1 General standards.

9.104-2 Special standards.

9.104-3 Application of standards.

9.104-4 Subcontractor responsibility.

9.104-5 Representation and certifications regarding responsibility matters.

9.104-6 Federal Awardee Performance and Integrity Information System.

9.104-7 Solicitation provisions and contract clauses.

9.105 Procedures.

9.105-1 Obtaining information.

9.105-2 Determinations and documentation.

9.105-3 Disclosure of preaward information.

9.106 Preaward surveys.

9.106-1 Conditions for preaward surveys.

9.106-2 Requests for preaward surveys.

9.106-3 Interagency preaward surveys.

9.106-4 Reports.

9.107 Surveys of nonprofit agencies participating in the AbilityOne Program.

9.108 Prohibition on contracting with inverted domestic corporations.

9.108-1 Definitions.
9.108-2 Prohibition.

9.108-3 Representation by the offeror.

9.108-4 Waiver.

9.108-5 Solicitation provision and contract clause.

9.109 Prohibition on contracting with an entity involved in activities that violate arms control

treaties or agreements with the United States.

9.109-1 Authority.

9.109-2 Prohibition.

9.109-3 Exception.

9.109-4 Certification by the offeror.

9.109-5 Solicitation provision.

9.110 Reserve Officer Training Corps and military recruiting on campus.

9.110-1 Definitions.

9.110-2 Authority

9.110-3 Policy.

9.110-4 Procedures.

9.110-5 Contract clause.

Subpart 9.2 - Qualifications Requirements

9.200 Scope of subpart.

9.201 Definitions.

9.202 Policy.

9.203 QPL’s, QML’s, and QBL’s.

9.204 Responsibilities for establishment of a qualification requirement.

9.205 Opportunity for qualification before award.

9.206 Acquisitions subject to qualification requirements.

9.206-1 General.

9.206-2 Contract clause.

9.206-3 Competition.
9.207 Changes in status regarding qualification requirements.

Subpart 9.3 - First Article Testing and Approval

9.301 Definition.

9.302 General.

9.303 Use.

9.304 Exceptions.

9.305 Risk.

9.306 Solicitation requirements.

9.307 Government administration procedures.

9.308 Contract clauses.

9.308-1 Testing performed by the contractor.

9.308-2 Testing performed by the Government.

Subpart 9.4 - Debarment, Suspension, and Ineligibility

9.400 Scope of subpart.

9.401 Applicability.

9.402 Policy.

9.403 Definitions.

9.404 Exclusions in the System for Award Management.

9.405 Effect of listing.

9.405-1 Continuation of current contracts.

9.405-2 Restrictions on subcontracting.

9.406 Debarment.

9.406-1 General.

9.406-2 Causes for debarment.

9.406-3 Procedures.

9.406-4 Period of debarment.

9.406-5 Scope of debarment.

9.407 Suspension.
9.407-1 General.

9.407-2 Causes for suspension.

9.407-3 Procedures.

9.407-4 Period of suspension.

9.407-5 Scope of suspension.

9.408 [Reserved]

9.409 Contract clause.

Subpart 9.5 - Organizational and Consultant Conflicts of Interest

9.500 Scope of subpart.

9.501 Definition.

9.502 Applicability.

9.503 Waiver.

9.504 Contracting officer responsibilities.

9.505 General rules.

9.505-1 Providing systems engineering and technical direction.

9.505-2 Preparing specifications or work statements.

9.505-3 Providing evaluation services.

9.505-4 Obtaining access to proprietary information.

9.506 Procedures.

9.507 Solicitation provisions and contract clause.

9.507-1 Solicitation provisions.

9.507-2 Contract clause.

9.508 Examples.

Subpart 9.6 - Contractor Team Arrangements

9.601 Definition.

9.602 General.

9.603 Policy.

9.604 Limitations.
Subpart 9.7 - Defense Production Pools and Research and Development Pools

9.701 Definition.

9.702 Contracting with pools.

9.703 Contracting with individual pool members.

Parent topic: Federal Acquisition Regulation

9.000 Scope of part.

This part prescribes policies, standards, and procedures pertaining to prospective contractors’

responsibility; debarment, suspension, and ineligibility; qualified products; first article testing and

approval; contractor team arrangements; defense production pools and research and development

pools; and organizational conflicts of interest.

Subpart 9.1 - Responsible Prospective Contractors

9.100 Scope of subpart.

This subpart prescribes policies, standards, and procedures for determining whether prospective

contractors and subcontractors are responsible.

9.101 Definitions.

Administrative proceeding means a non-judicial process that is adjudicatory in nature in order to

make a determination of fault or liability (e.g., Securities and Exchange Commission Administrative

Proceedings, Civilian Board of Contract Appeals Proceedings, and Armed Services Board of Contract

Appeals Proceedings). This includes administrative proceedings at the Federal and state level but

only in connections with performance of a Federal contract or grant. It does not include agency

actions such as contract audits, site visits, corrective plans, or inspection of deliverables.

Surveying activity, as used in this subpart, means the cognizant contract administration office or, if

there is no such office, another organization designated by the agency to conduct preaward surveys.

9.102 Applicability.

(a) This subpart applies to all proposed contracts with any prospective contractor that is located-

(1) In the United States or its outlying areas; or

(2) Elsewhere, unless application of the subpart would be inconsistent with the laws or customs

where the contractor is located.

(b) This subpart does not apply to proposed contracts with-
(1) Foreign, State, or local governments;

(2) Other U.S. Government agencies or their instrumentalities; or

(3) Agencies for people who are blind or severely disabled (see subpart 8.7).

9.103 Policy.

(a) Purchases shall be made from, and contracts shall be awarded to, responsible prospective

contractors only.

(b) No purchase or award shall be made unless the contracting officer makes an affirmative

determination of responsibility. In the absence of information clearly indicating that the prospective

contractor is responsible, the contracting officer shall make a determination of nonresponsibility. If

the prospective contractor is a small business concern, the contracting officer shall comply with

subpart 19.6, Certificates of Competency and Determinations of Responsibility. (If Section 8(a) of

the Small Business Act (15 U.S.C.637) applies, see subpart 19.8.)

(c) The award of a contract to a supplier based on lowest evaluated price alone can be false economy

if there is subsequent default, late deliveries, or other unsatisfactory performance resulting in

additional contractual or administrative costs. While it is important that Government purchases be

made at the lowest price, this does not require an award to a supplier solely because that supplier

submits the lowest offer. A prospective contractor must affirmatively demonstrate its responsibility,

including, when necessary, the responsibility of its proposed subcontractors.

9.104 Standards.

9.104-1 General standards.

To be determined responsible, a prospective contractor must-

(a) Have adequate financial resources to perform the contract, or the ability to obtain them (see

9.104-3(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;

(c) Have a satisfactory performance record (see 9.104-3 (b) and subpart 42.15). A prospective

contractor shall not be determined responsible or nonresponsible solely on the basis of a lack of

relevant performance history, except as provided in 9.104-2;

(d) Have a satisfactory record of integrity and business ethics (for example, see subpart 42.15);

(e) Have the necessary organization, experience, accounting and operational controls, and technical

skills, or the ability to obtain them (including, as appropriate, such elements as production control

procedures, property control systems, quality assurance measures, and safety programs applicable

to materials to be produced or services to be performed by the prospective contractor and

subcontractors). (See 9.104-3(a).)
(f) Have the necessary production, construction, and technical equipment and facilities, or the ability

to obtain them (see 9.104-3(a)); and

(g) Be otherwise qualified and eligible to receive an award under applicable laws and regulations

(see also inverted domestic corporation prohibition at 9.108).

9.104-2 Special standards.

(a) When it is necessary for a particular acquisition or class of acquisitions, the contracting officer

shall develop, with the assistance of appropriate specialists, special standards of responsibility.

Special standards may be particularly desirable when experience has demonstrated that unusual

expertise or specialized facilities are needed for adequate contract performance. The special

standards shall be set forth in the solicitation (and so identified) and shall apply to all offerors.

(b) Contracting officers shall award contracts for subsistence only to those prospective contractors

that meet the general standards in 9.104-1 and are approved in accordance with agency sanitation

standards and procedures.

9.104-3 Application of standards.

(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 SoleSource 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 SetAside 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.

9.104-4 Subcontractor responsibility.

(a) Generally, prospective prime contractors are responsible for determining the responsibility of

their prospective subcontractors (but see 9.405 and 9.405-2 regarding debarred, ineligible, or

suspended firms). Determinations of prospective subcontractor responsibility may affect the

Government's determination of the prospective prime contractor's responsibility. A prospective

contractor may be required to provide written evidence of a proposed subcontractor's responsibility.

(b) When it is in the Government’s interest to do so, the contracting officer may directly determine a

prospective subcontractor’s responsibility (e.g., when the prospective contract involves medical

supplies, urgent requirements, or substantial subcontracting). In this case, the same standards used

to determine a prime contractor’s responsibility shall be used by the Government to determine

subcontractor responsibility.

9.104-5 Representation and certifications regarding responsibility matters.

(a) When an offeror provides an affirmative response in paragraph (a)(1) of the provision at

52.209-5, Certification Regarding Responsibility Matters, or paragraph (h) of provision 52.212-3, the

contracting officer shall-

(1) Promptly, upon receipt of offers, request such additional information from the offeror as the

offeror deems necessary in order to demonstrate the offeror’s responsibility to the contracting

officer (but see 9.405); and
(2) Notify, prior to proceeding with award, in accordance with agency procedures (see 9.406-3(a)

and 9.407-3(a)), the agency official responsible for initiating debarment or suspension action, where

an offeror indicates the existence of an indictment, charge, conviction, or civil judgment, or Federal

tax delinquency in an amount that exceeds $10,000.

(b) The provision at 52.209-11, Representation by Corporations Regarding Delinquent Tax Liability

or a Felony Conviction under any Federal Law, implements sections 744 and 745 of Division E of the

Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235) (and similar

provisions in subsequent appropriations acts). When an offeror provides an affirmative response in

paragraph (b)(1) or (2) of the provision at 52.209-11 or paragraph (q)(2)(i) or (ii) of provision

52.212-3, the contracting officer shall–

(1) Promptly, upon receipt of offers, request such additional information from the offeror as the

offeror deems necessary in order to demonstrate the offeror's responsibility to the contracting

officer (but see 9.405);

(2) Notify, in accordance with agency procedures (see 9.406-3(a) and 9.407-3(a)), the agency official

responsible for initiating debarment or suspension action; and

(3) Not award to the corporation unless an agency suspending or debarring official has considered

suspension or debarment of the corporation and made a determination that suspension or

debarment is not necessary to protect the interests of the Government.

(c) If the provision at 52.209-12, Certification Regarding Tax Matters, is applicable (see 9.104-7(e)),

then the contracting officer shall not award any contract in an amount greater than $5.5 million,

unless the offeror affirmatively certified in its offer, as required by paragraph (b)(1), (2), and (3) of

the provision.

(d) Offerors who do not furnish the representation or certifications or such information as may be

requested by the contracting officer shall be given an opportunity to remedy the deficiency. Failure

to furnish the representation or certifications or such information may render the offeror

nonresponsible.

9.104-6 Federal Awardee Performance and Integrity Information System.

(a)

(1) Before awarding a contract in excess of the simplified acquisition threshold, the contracting

officer shall review the performance and integrity information available in the Federal Awardee

Performance and Integrity Information System (FAPIIS), (available at https://www.cpars.gov),

including FAPIIS information from the System for Award Management (SAM) Exclusions and the

Contractor Performance Assessment Reporting System (CPARS).

(2) In accordance with 41 U.S.C. 2313(d)(3), FAPIIS also identifies–

(i) An affiliate that is an immediate owner or subsidiary of the offeror, if any (see 52.204-17,

Ownership or Control of Offeror); and

(ii) All predecessors of the offeror that held a Federal contract or grant within the last three years

(see 52.204-20, Predecessor of Offeror).
(b)

(1) When making a responsibility determination, the contracting officer shall consider all the

information available through FAPIIS with regard to the offeror and any immediate owner,

predecessor, or subsidiary identified for that offeror in FAPIIS, as well as other past performance

information on the offeror (see subpart 42.15).

(2) For evaluation of information available through FAPIIS relating to an affiliate of the offeror, see

9.104-3(c).

(3) For source selection evaluations of past performance, see 15.305(a)(2). Contracting officers shall

use sound judgment in determining the weight and relevance of the information contained in FAPIIS

and how it relates to the present acquisition.

(4) Since FAPIIS may contain information on any of the offeror's previous contracts and information

covering a five-year period, some of that information may not be relevant to a determination of

present responsibility, e.g., a prior administrative action such as debarment or suspension that has

expired or otherwise been resolved, or information relating to contracts for completely different

products or services..

(5) Because FAPIIS is a database that provides information about prime contractors, the contracting

officer posts information required to be posted about a subcontractor, such as trafficking in persons

violations, to the record of the prime contractor (see 42.1503(h)(1)(v)). The prime contractor has the

opportunity to post in FAPIIS any mitigating factors. The contracting officer shall consider any

mitigating factors posted in FAPIIS by the prime contractor, such as degree of compliance by the

prime contractor with the terms of FAR clause 52.222-50.

(c) If the contracting officer obtains relevant information from FAPIIS regarding criminal, civil, or

administrative proceedings in connection with the award or performance of a Government contract;

terminations for default or cause; determinations of nonresponsibility because the contractor does

not have a satisfactory performance record or a satisfactory record of integrity and business ethics;

or comparable information relating to a grant, the contracting officer shall, unless the contractor has

already been debarred or suspended-

(1) Promptly request such additional information from the offeror as the offeror deems necessary in

order to demonstrate the offeror’s responsibility to the contracting officer (but see 9.405); and

(2) Notify, prior to proceeding with award, in accordance with agency procedures (see 9.406-3(a)

and 9.407-3(a)), the agency official responsible for initiating debarment or suspension action, if the

information appears appropriate for the official’s consideration.

(d) The contracting officer shall document the contract file for each contract in excess of the

simplified acquisition threshold to indicate how the information in FAPIIS was considered in any

responsibility determination, as well as the action that was taken as a result of the information. A

contracting officer who makes a nonresponsibility determination is required to document that

information in FAPIIS in accordance with 9.105-2(b)(2).

9.104-7 Solicitation provisions and contract clauses.

(a) The contracting officer shall insert the provision at 52.209-5, Certification Regarding

Responsibility Matters, in solicitations where the contract value is expected to exceed the simplified
acquisition threshold.

(b) The contracting officer shall insert the provision at 52.209-7, Information Regarding

Responsibility Matters, in solicitations where the resultant contract value is expected to exceed

$600,000.

(c) The contracting officer shall insert the clause at 52.209-9, Updates of Publicly Available

Information Regarding Responsibility Matters-

(1) In solicitations where the resultant contract value is expected to exceed $600,000; and

(2) In contracts in which the offeror checked "has" in paragraph (b) of the provision at 52.209-7.

(d) The contracting officer shall insert the provision 52.209-11, Representation by Corporations

Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law, in all

solicitations.

(e) For agencies receiving funds subject to section 523 of Division B of the Consolidated and Further

Continuing Appropriations Act, 2015 (Pub. L. 113-235) and similar provisions in subsequent

appropriations acts, the contracting officer shall insert the provision 52.209-12, Certification

Regarding Tax Matters, in solicitations for which the resultant contract (including options) may have

a value greater than $5.5 million. Division B of the Consolidated and Continuing Further

Appropriations Act, 2015 appropriates funds for the following agencies: the Department of

Commerce, the Department of Justice, the National Aeronautics and Space Administration, the

Office of Science and Technology Policy, the National Science Foundation, the Commission on Civil

Rights, the Equal Employment Opportunity Commission, the U.S. International Trade Commission,

the Legal Services Corporation, the Marine Mammal Commission, the Office of the United States

Trade Representative, and the State Justice Institute.

9.105 Procedures.

9.105-1 Obtaining information.

(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.

9.105-2 Determinations and documentation.

(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

(C) The Small Business Administration does not issue a Certificate of Competency.

(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.

9.105-3 Disclosure of preaward information.

(a) Except as provided in subpart 24.2, Freedom of Information Act, information (including the

preaward survey report) accumulated for purposes of determining the responsibility of a prospective

contractor shall not be released or disclosed outside the Government.

(b) The contracting officer may discuss preaward survey information with the prospective contractor

before determining responsibility. After award, the contracting officer or, if it is appropriate, the

head of the surveying activity or a designee may discuss the findings of the preaward survey with

the company surveyed.

(c) Preaward survey information may contain proprietary or source selection information and should

be marked with the appropriate legend and protected accordingly (see 3.104-4).

9.106 Preaward surveys.

9.106-1 Conditions for preaward surveys.

(a) A preaward survey is normally required only when the information on hand or readily available to

the contracting officer, including information from commercial sources, is not sufficient to make a

determination regarding responsibility. In addition, if the contemplated contract will have a fixed

price at or below the simplified acquisition threshold or will involve the acquisition of commercial

products or commercial services (see part 12), the contracting officer should not request a

preaward survey unless circumstances justify its cost.

(b) When a cognizant contract administration office becomes aware of a prospective award to a

contractor about which unfavorable information exists and no preaward survey has been requested,

it shall promptly obtain and transmit details to the contracting officer.

(c) Before beginning a preaward survey, the surveying activity shall ascertain whether the

prospective contractor is debarred, suspended, or ineligible (see subpart 9.4). If the prospective

contractor is debarred, suspended, or ineligible, the surveying activity shall advise the contracting

officer promptly and not proceed with the preaward survey unless specifically requested to do so by

the contracting officer.

9.106-2 Requests for preaward surveys.

The contracting officer’s request to the surveying activity (Preaward Survey of Prospective
Contractor (General),SF 1403) shall-

(a) Identify additional factors about which information is needed;

(b) Include the complete solicitation package (unless it has previously been furnished), and any

information indicating prior unsatisfactory performance by the prospective contractor;

(c) State whether the contracting office will participate in the survey;

(d) Specify the date by which the report is required. This date should be consistent with the scope of

the survey requested and normally shall allow at least 7 working days to conduct the survey; and

(e) When appropriate, limit the scope of the survey.

9.106-3 Interagency preaward surveys.

When the contracting office and the surveying activity are in different agencies, the procedures of

this section 9.106 and subpart 42.1 shall be followed along with the regulations of the agency in

which the surveying activity is located, except that reasonable special requests by the contracting

office shall be accommodated (also see subpart 17.5).

9.106-4 Reports.

(a) The surveying activity shall complete the applicable parts of SF 1403, Preaward Survey of

Prospective Contractor (General); SF 1404, Preaward Survey of Prospective Contractor-Technical;

SF 1405, Preaward Survey of Prospective Contractor-Production; SF 1406, Preaward Survey of

Prospective Contractor-Quality Assurance; SF 1407, Preaward Survey of Prospective ContractorFinancial Capability; and SF 1408, Preaward Survey of Prospective Contractor-Accounting System;

and provide a narrative discussion sufficient to support both the evaluation ratings and the

recommendations.

(b) When the contractor surveyed is a small business that has received preferential treatment on an

ongoing contract under Section 8(a) of the Small Business Act (15 U.S.C. 637) or has received a

Certificate of Competency during the last 12 months, the surveying activity shall consult the

appropriate Small Business Administration field office before making an affirmative recommendation

regarding the contractor’s responsibility or nonresponsibility.

(c) When a preaward survey discloses previous unsatisfactory performance, the surveying activity

shall specify the extent to which the prospective contractor plans, or has taken, corrective action.

Lack of evidence that past failure to meet contractual requirements was the prospective contractor’s

fault does not necessarily indicate satisfactory performance. The narrative shall report any

persistent pattern of need for costly and burdensome Government assistance (e.g., engineering,

inspection, or testing) provided in the Government’s interest but not contractually required.

(d) When the surveying activity possesses information that supports a recommendation of complete

award without an on-site survey and no special areas for investigation have been requested, the

surveying activity may provide a short-form preaward survey report. The short-form report shall

consist solely of the Preaward Survey of Prospective Contractor (General), SF 1403. Sections III and

IV of this form shall be completed and block21 shall be checked to show that the report is a short-
form preaward report.

9.107 Surveys of nonprofit agencies participating in the AbilityOne Program.

(a) The Committee for Purchase From People Who Are Blind or Severely Disabled (Committee), as

authorized by 41 U.S.C. chapter 85, determines what supplies and services Federal agencies are

required to purchase from AbilityOne participating nonprofit agencies serving people who are blind

or have other severe disabilities (see subpart 8.7). The Committee is required to find an AbilityOne

participating nonprofit agency capable of furnishing the supplies or services before the nonprofit

agency can be designated as a mandatory source under the AbilityOne Program. The Committee may

request a contracting office to assist in assessing the capabilities of a nonprofit agency.

(b) The contracting office, upon request from the Committee, shall request a capability survey from

the activity responsible for performing preaward surveys, or notify the Committee that the

AbilityOne participating nonprofit agency is capable, with supporting rationale, and that the survey

is waived. The capability survey will focus on the technical and production capabilities and

applicable preaward survey elements to furnish specific supplies or services being considered for

addition to the Procurement List.

(c) The contracting office shall use the Standard Form 1403 to request a capability survey of

organizations employing people who are blind or have other severe disabilities.

(d) The contracting office shall furnish a copy of the completed survey, or notice that the AbilityOne

participating nonprofit agency is capable and the survey is waived, to the Executive Director,

Committee for Purchase From People Who Are Blind or Severely Disabled.

9.108 Prohibition on contracting with inverted domestic corporations.

9.108-1 Definitions.

As used in this sectionInverted domestic corporation means a foreign incorporated entity that meets the definition of an

inverted domestic corporation under 6 U.S.C. 395(b), applied in accordance with the rules and

definitions of 6 U.S.C. 395(c).

Subsidiary means an entity in which more than 50 percent of the entity is owned-

(1) Directly by a parent corporation; or

(2) Through another subsidiary of a parent corporation.

9.108-2 Prohibition.

(a) Section 745 of Division D of the Consolidated Appropriations Act, 2008 (Pub. L. 110-161) and its

successor provisions in subsequent appropriations acts (and as extended in continuing resolutions)

prohibit, on a Governmentwide basis, the use of appropriated (or otherwise made available) funds
for contracts with either an inverted domestic corporation, or a subsidiary of such a corporation,

except as provided in paragraph (b) of this section and in 9.108-4 Waiver.

(b)

(1) Section 745 and its successor provisions include the following exception: This section shall not

apply to any Federal Government contract entered into before the date of the enactment of this Act,

or to any task order issued pursuant to such contract.

(2) To ensure appropriate application of the prohibition and this exception, contracting officers

should consult with legal counsel if, during the performance of a contract, a contractor becomes an

inverted domestic corporation or a subsidiary of one.

9.108-3 Representation by the offeror.

(a) In order to be eligible for contract award, an offeror must represent that it is neither an inverted

domestic corporation, nor a subsidiary of an inverted domestic corporation. Any offeror that cannot

so represent is ineligible for award of a contract, unless waived in accordance with the procedures

at 9.108-4.

(b) The contracting officer may rely on an offeror’s representation that it is not an inverted domestic

corporation unless the contracting officer has reason to question the representation.

9.108-4 Waiver.

Any agency head may waive the prohibition in subsection 9.108-2 and the requirement of subsection

9.108-3 for a specific contract if the agency head determines in writing that the waiver is required in

the interest of national security, documents the determination, and reports it to the Congress.

9.108-5 Solicitation provision and contract clause.

The contracting officer shall-

(a) Include the provision at 52.209-2, Prohibition on Contracting with Inverted Domestic

Corporations-Representation, in each solicitation for the acquisition of products or services

(including construction); and

(b) Include the clause at 52.209-10, Prohibition on Contracting with Inverted Domestic Corporations,

in each solicitation and contract for the acquisition of products or services (including construction).

9.109 Prohibition on contracting with an entity involved in activities that

violate arms control treaties or agreements with the United States.

9.109-1 Authority.
This section implements 22 U.S.C. 2593e.

9.109-2 Prohibition.

Contracting officers shall not award, renew, or extend a contract for the procurement of products or

services with an entity identified as excluded in the System for Award Management, specifically for

this subpart, on the basis of involvement in activities that violate arms control treaties or

agreements with the United States.

9.109-3 Exception.

The prohibition in 9.109-2 does not apply to contracts for the procurement of products or services

along a major route of supply to a zone of active combat or major contingency operation, as specified

in statute or by the cognizant Combatant Commander, in consultation with the Chief of Mission. As

of May 10, 2018, countries along the major route of supply to support operations in Afghanistan are

Afghanistan, Georgia, the Kyrgyz Republic, Pakistan, the Republic of Armenia, the Republic of

Azerbaijan, the Republic of Kazakhstan, the Republic of Tajikistan, the Republic of Uzbekistan, and

Turkmenistan.

9.109-4 Certification by the offeror.

(a) In order to be eligible for contract award, an offeror is required to—

(1)

(i) Certify that it does not engage and has not engaged in any activity that contributed to or was a

significant factor in the President's or Secretary of State's determination that a foreign country is in

violation of its obligations undertaken in any arms control, nonproliferation, or disarmament

agreement to which the United States is a party, or is not adhering to its arms control,

nonproliferation, or disarmament commitments in which the United States is a participating state.

The determinations are described in the most recent unclassified annual report provided to

Congress pursuant to section 403 of the Arms Control and Disarmament Act (22 U.S.C. 2593a). The

report is available at

https://www.state.gov/bureaus-offices/under-secretary-for-arms-control-and-international-security-aff

airs/bureau-of-arms-control-verification-and-compliance/; and

(ii) Similarly certify with regard to any entity owned or controlled by the offeror; or

(2) Provide with its offer information that the President of the United States has–

(i) Waived application under 22 U.S.C. 2593e(d) or (e); or

(ii) Determined under 22 U.S.C. 2593e(g)(2) that the entity has ceased all activities for which

measures were imposed under 22 U.S.C. 2593e(b).

(b) If certifying in accordance with 52.209-13(b)(1), the Offeror is required to submit the

certification with the offer. It is not included in the annual representations and certifications in the
System for Award Management.

(c) The contracting officer may rely on an offeror's certification unless the contracting officer has

reason to question the certification.

(d) Upon the determination of a false certification under 52.209-13, an offeror will be subject to such

remedies as suspension or debarment under subpart 9.4 shall be for a period of not less than 2

years, inclusive of any suspension period, if suspension precedes a debarment (see 9.406-4(a)(1)(iii)

and (a)(2)).

9.109-5 Solicitation provision.

Unless the exception at 9.109-3 applies, the contracting officer shall include the provision at

52.209-13, Violation of Arms Control Treaties or Agreements-Certification, in each solicitation for

the acquisition of products or services (including construction) that exceeds the simplified

acquisition threshold, other than solicitations for the acquisition of commercial products or

commercial services.

9.110 Reserve Officer Training Corps and military recruiting on campus.

9.110-1 Definitions.

As used in this section—

Covered agency means–

(1)The Department of Defense;

(2)Any department or agency for which regular appropriations are made in a Department of Labor,

Health and Human Services, and Education, and Related Agencies Appropriations Act;

(3)The Department of Homeland Security;

(4)The National Nuclear Security Administration of the Department of Energy;

(5)The Department of Transportation; or

(6)The Central Intelligence Agency.

Institution of higher education means an institution that meets the requirements of 20 U.S.C. 1001

and includes all sub-elements of such an institution.

9.110-2 Authority

This section implements 10 U.S.C. 983.
9.110-3 Policy.

(a) Except as provided in paragraph (b) of this section, 10 U.S.C. 983 prohibits the covered agency

from providing funds by contract to an institution of higher education if the Secretary of Defense

determines that the institution has a policy or practice that prohibits or in effect prevents—

(1) The Secretary of a military department from maintaining, establishing, or operating a unit of the

Senior Reserve Officer Training Corps (ROTC) at that institution;

(2) A student at that institution from enrolling in a unit of the Senior ROTC at another institution of

higher education;

(3) The Secretary of a military department or the Secretary of Homeland Security from gaining

access to campuses, or access to students (who are 17 years of age or older) on campuses, for

purposes of military recruiting in a manner that is at least equal in quality and scope to the access to

campuses and to students that is provided to any other employer; or

(4) Military recruiters from accessing certain information pertaining to students (who are 17 years

of age or older) enrolled at that institution:

(i) Name, address, and telephone listings.

(ii) Date and place of birth, educational level, academic majors, degrees received, and the most

recent educational institution enrolled in by the student.

(b) The prohibition in paragraph (a) of this section does not apply to an institution of higher

education if the Secretary of Defense determines that—

(1) The institution has ceased the policy or practice described in paragraph (a) of this section; or

(2) The institution has a long-standing policy of pacifism based on historical religious affiliation.

9.110-4 Procedures.

If the Secretary of Defense determines, pursuant to the procedures at 32 CFR part 216, that an

institution of higher education is ineligible to receive funds from a covered agency because of a

policy or practice described in 9.110-3—

(a)The Secretary of Defense will create an active exclusion record for the institution in the System

for Award Management; and

(b)A covered agency shall not solicit offers from, award contracts to, or consent to subcontracts with

the institution. The prohibition in this paragraph (b) does not apply to acquisitions at or below the

simplified acquisition threshold or to acquisitions of commercial products and commercial services,

including commercially available off-the-shelf items.

9.110-5 Contract clause.

The contracting officer shall insert the clause at 52.209-14, Reserve Officer Training Corps and
Military Recruiting on Campus, in solicitations and contracts that are expected to exceed the

simplified acquisition threshold, with institutions of higher education, when using funds from a

covered agency. The clause is not prescribed for solicitations and contracts using part 12 for the

acquisition of commercial products and commercial services.

Subpart 9.2 - Qualifications Requirements

9.200 Scope of subpart.

This subpart implements 10 U.S.C. 3243 and 41 U.S.C.3311 and prescribes policies and procedures

regarding qualification requirements and the acquisitions that are subject to such requirements.

9.201 Definitions.

As used in this subpartQualified bidders list (QBL) means a list of bidders who have had their products examined and tested

and who have satisfied all applicable qualification requirements for that product or have otherwise

satisfied all applicable qualification requirements.

Qualified manufacturers list (QML) means a list of manufacturers who have had their products

examined and tested and who have satisfied all applicable qualification requirements for that

product.

9.202 Policy.

(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.

9.203 QPL’s, QML’s, and QBL’s.

(a) Qualification and listing in a QPL, QML, or QBL is the process by which products are obtained

from manufacturers or distributors, examined and tested for compliance with specification

requirements, or manufacturers or potential offerors, are provided an opportunity to demonstrate

their abilities to meet the standards specified for qualification. The names of successful products,

manufacturers, or potential offerors are included on lists evidencing their status. Generally,

qualification is performed in advance and independently of any specific acquisition action. After

qualification, the products, manufacturers, or potential offerors are included in a Federal or Military

QPL, QML, or QBL. (See 9.202(a)(2) with regard to any product, manufacturer, or potential offeror

not yet included on an applicable list.)

(b) Specifications requiring a qualified product are included-

(1) In the GSA Index of Federal Specifications, Standards and Commercial Item Descriptions; and

(2) On the Department of Defense Acquisition Streamlining and Standardization Information System

(ASSIST) website at https://assist.dla.mil.

(c) Instructions concerning qualification procedures are included in the following publications:

(1) Federal Standardization Manual, FSPM-0001.

(2) Department of Defense Manual 4120.24, Defense Standardization Program (DSP) Procedures, (

www.esd.whs.mil/Directives/Issuances/dodm ) as amended by Military Standards 961 and 962 (

https://assist.dla.mil ).

(d) The publications in paragraphs (b)(1) and (c)(1) of this section may be obtained from the address

in 11.201(d)(1).

9.204 Responsibilities for establishment of a qualification requirement.

The responsibilities of agency activities that establish qualification requirements include the

following:

(a) Arranging publicity for the qualification requirements. If active competition on anticipated future

qualification requirements is likely to be fewer than two manufacturers or the products of two

manufacturers, the activity responsible for establishment of the qualification requirements must-

(1) Periodically furnish through the Governmentwide point of entry (GPE) a notice seeking additional

sources or products for qualification unless the contracting officer determines that such publication
would compromise the national security.

(2) Bear the cost of conducting the specified testing and evaluation (excluding the costs associated

with producing the item or establishing the production, quality control, or other system to be tested

and evaluated) for a small business concern or a product manufactured by a small business concern

which has met the standards specified for qualification and which could reasonably be expected to

compete for a contract for that requirement. However, such costs may be borne only if it is

determined in accordance with agency procedures that such additional qualified sources or products

are likely to result in cost savings from increased competition for future requirements sufficient to

amortize the costs incurred by the agency within a reasonable period of time, considering the

duration and dollar value of anticipated future requirements. A prospective contractor requesting

the United States to bear testing and evaluation costs must certify as to its status as a small business

concern under Section 3 of the Small Business Act in order to receive further consideration.

(b) Qualifying products that meet specification requirements.

(c) Listing manufacturers and suppliers whose products are qualified in accordance with agency

procedures.

(d) Furnishing QPL’s, QML’s, or QBL’s or the qualification requirements themselves to prospective

offerors and the public upon request (see 9.202(a)(2)(i)).

(e) Clarifying, as necessary, qualification requirements.

(f) In appropriate cases, when requested by the contracting officer, providing concurrence in a

decision not to enforce a qualification requirement for a solicitation.

(g) Withdrawing or omitting qualification of a listed product, manufacturer or offeror, as necessary.

(h) Advising persons furnished any list of products, manufacturers or offerors meeting a qualification

requirement and suppliers whose products are on any such list that-

(1) The list does not constitute endorsement of the product, manufacturer, or other source by the

Government;

(2) The products or sources listed have been qualified under the latest applicable specification;

(3) The list may be amended without notice;

(4) The listing of a product or source does not release the supplier from compliance with the

specification; and

(5) Use of the list for advertising or publicity is permitted. However, it must not be stated or implied

that a particular product or source is the only product or source of that type qualified, or that the

Government in any way recommends or endorses the products or the sources listed.

(i) Reexamining a qualified product or manufacturer when-

(1) The manufacturer has modified its product, or changed the material or the processing sufficiently

so that the validity of previous qualification is questionable;

(2) The requirements in the specification have been amended or revised sufficiently to affect the

character of the product; or
(3) It is otherwise necessary to determine that the quality of the product is maintained in

conformance with the specification.

9.205 Opportunity for qualification before award.

(a) If an agency determines that a qualification requirement is necessary, the agency activity

responsible for establishing the requirement must urge manufacturers and other potential sources

to demonstrate their ability to meet the standards specified for qualification and, when possible, give

sufficient time to arrange for qualification before award. The responsible agency activity must,

before establishing any qualification requirement, furnish notice through the GPE. The notice must

include-

(1) Intent to establish a qualification requirement;

(2) The specification number and name of the product;

(3) The name and address of the activity to which a request for the information and opportunity

described in 9.202(a)(2) should be submitted;

(4) The anticipated date that the agency will begin awarding contracts subject to the qualification

requirement;

(5) A precautionary notice that when a product is submitted for qualification testing, the applicant

must furnish any specific information that may be requested of the manufacturer before testing will

begin; and

(6) The approximate time period following submission of a product for qualification testing within

which the applicant will be notified whether the product passed or failed the qualification testing

(see 9.202(a)(4)).

(b) The activity responsible for establishing a qualification requirement must keep any list

maintained of those already qualified open for inclusion of additional products, manufacturers, or

other potential sources.

9.206 Acquisitions subject to qualification requirements.

9.206-1 General.

(a) Agencies may not enforce any QPL, QML, or QBL without first complying with the requirements

of 9.202(a). However, qualification requirements themselves, whether or not previously embodied in

a in a QPL, QML, or QBL, may be enforced without regard to 9.202(a) if they are in either of the

following categories:

(1) Any qualification requirement established by statute prior to October 30,1984, for civilian

agencies (not including NASA); or

(2) Any qualification requirement established by statute or administrative action prior to October

19,1984, for DoD or NASA. Qualification requirements established after the above dates must

comply with 9.202(a) to be enforceable.
(b) Except when the agency head or designee determines that an emergency exists, whenever an

agency elects, whether before or after award, not to enforce a qualification requirement which it

established, the requirement may not thereafter be enforced unless the agency complies with

9.202(a).

(c) If a qualification requirement applies, the contracting officer need consider only those offers

identified as meeting the requirement or included on the applicable QPL, QML, or QBL, unless an

offeror can satisfactorily demonstrate to the contracting officer that it or its product or its

subcontractor or its product can meet the standards established for qualification before the date

specified for award.

(d) If a product subject to a qualification requirement is to be acquired as a component of an end

item, the contracting officer must ensure that all such components and their qualification

requirements are properly identified in the solicitation since the product or source must meet the

standards specified for qualification before award.

(e) In acquisitions subject to qualification requirements, the contracting officer shall take the

following steps:

(1) Use presolicitation notices in appropriate cases to advise potential suppliers before issuing

solicitations involving qualification requirements. The notices shall identify the specification

containing the qualification requirement and establish an allowable time period, consistent with

delivery requirements, for prospective offerors to demonstrate their abilities to meet the standards

specified for qualification. The notice shall be publicized in accordance with 5.204. Whether or not a

presolicitation notice is used, the general synopsizing requirements of subpart 5.2 apply.

(2) Distribute solicitations to prospective contractors whether or not they have been identified as

meeting applicable qualification requirements.

(3) When appropriate, request in accordance with agency procedures that a qualification

requirement not be enforced in a particular acquisition and, if granted, so specify in the solicitation

(see 9.206-1(b)).

(4) Forward requests from potential suppliers for information on a qualification requirement to the

agency activity responsible for establishing the requirement.

(5) Allow the maximum time, consistent with delivery requirements, between issuing the solicitation

and the contract award. As a minimum, contracting officers shall comply with the time frames

specified in 5.203 when applicable.

9.206-2 Contract clause.

The contracting officer shall insert the clause at 52.209-1, Qualification Requirements, in

solicitations and contracts when the acquisition is subject to a qualification requirement.

9.206-3 Competition.

(a) Presolicitation. If a qualification requirement applies to an acquisition, the contracting officer

shall review the applicable QPL, QML, or QBL or other identification of those sources which have
met the requirement before issuing a solicitation to ascertain whether the number of sources is

adequate for competition. (See 9.204(a) for duties of the agency activity responsible for

establishment of the qualification requirement.) If the number of sources is inadequate, the

contracting officer shall request the agency activity which established the requirement to-

(1) Indicate the anticipated date on which any sources presently undergoing evaluation will have

demonstrated their abilities to meet the qualification requirement so that the solicitation could be

rescheduled to allow as many additional sources as possible to qualify; or

(2) Indicate whether a means other than the qualification requirement is feasible for testing or

demonstrating quality assurance.

(b) Post solicitation. The contracting officer shall submit to the agency activity which established the

qualification requirement the names and addresses of concerns which expressed interest in the

acquisition but are not included on the applicable QPL, QML, or QBL or identified as meeting the

qualification requirement. The activity will then assist interested concerns in meeting the standards

specified for qualification (see 9.202(a)(2) and (4)).

9.207 Changes in status regarding qualification requirements.

(a) The contracting officer shall promptly report to the agency activity which established the

qualification requirement any conditions which may merit removal or omission from a QPL, QML, or

QBL or affect whether a source should continue to be otherwise identified as meeting the

requirement. These conditions exist when-

(1) Products or services are submitted for inspection or acceptance that do not meet the

qualification requirement;

(2) Products or services were previously rejected and the defects were not corrected when

submitted for inspection or acceptance;

(3) A supplier fails to request reevaluation following change of location or ownership of the plant

where the product which met the qualification requirement was manufactured (see the clause at

52.209-1, Qualification Requirements);

(4) A manufacturer of a product which met the qualification requirement has discontinued

manufacture of the product;

(5) A source requests removal from a QPL, QML, or QBL;

(6) A condition of meeting the qualification requirement was violated; e.g., advertising or publicity

contrary to 9.204(h)(5);

(7) A revised specification imposes a new qualification requirement;

(8) Manufacturing or design changes have been incorporated in the qualification requirement;

(9) The source is listed in the System for Award Management Exclusions (see subpart 9.4); or

(10) Performance of a contract subject to a qualification requirement is otherwise unsatisfactory.

(b) After considering any of the above or other conditions reasonably related to whether a product or
source continues to meet the standards specified for qualification, an agency may take appropriate

action without advance notification. The agency shall, however, promptly notify the affected parties

if a product or source is removed from a QPL, QML, or QBL, or will no longer be identified as

meeting the standards specified for qualification. This notice shall contain specific information why

the product or source no longer meets the qualification requirement.

Subpart 9.3 - First Article Testing and Approval

9.301 Definition.

Approval, as used in this subpart, means the contracting officer’s written notification to the

contractor accepting the test results of the first article.

9.302 General.

First article testing and approval (hereafter referred to as testing and approval) ensures that the

contractor can furnish a product that conforms to all contract requirements for acceptance. Before

requiring testing and approval, the contracting officer shall consider the-

(a) Impact on cost or time of delivery;

(b) Risk to the Government of foregoing such test; and

(c) Availability of other, less costly, methods of ensuring the desired quality.

9.303 Use.

Testing and approval may be appropriate when-

(a) The contractor has not previously furnished the product to the Government;

(b) The contractor previously furnished the product to the Government, but-

(1) There have been subsequent changes in processes or specifications;

(2) Production has been discontinued for an extended period of time; or

(3) The product acquired under a previous contract developed a problem during its life;

(c) The product is described by a performance specification; or

(d) It is essential to have an approved first article to serve as a manufacturing standard.

9.304 Exceptions.

Normally, testing and approval is not required in contracts for-
(a) Research or development;

(b) Products requiring qualification before award (e.g., when an applicable qualified products list

exists (see subpart 9.2));

(c) Products normally sold in the commercial market; or

(d) Products covered by complete and detailed technical specifications, unless the requirements are

so novel or exacting that it is questionable whether the products would meet the requirements

without testing and approval.

9.305 Risk.

Before first article approval, the acquisition of materials or components, or commencement of

production, is normally at the sole risk of the contractor. To minimize this risk, the contracting

officer shall provide sufficient time in the delivery schedule for acquisition of materials and

components, and for production after receipt of first article approval. When Government

requirements preclude this action, the contracting officer may, before approval of the first article,

authorize the contractor to acquire specific materials or components or commence production to the

extent essential to meet the delivery schedule (see Alternate II of the clause at 52.209-3, First Article

Approval-Contractor Testing, and Alternate II of the clause at 52.209-4, First Article ApprovalGovernment Testing). Costs incurred based on this authorization are allocable to the contract for—

(a) Progress payments; and

(b) Termination settlements if the contract is terminated for the convenience of the Government.

9.306 Solicitation requirements.

Solicitations containing a testing and approval requirement shall-

(a) Provide, in the circumstance where the contractor is to be responsible for the first article

approval testing-

(1) The performance or other characteristics that the first article must meet for approval;

(2) The detailed technical requirements for the tests that must be performed for approval; and

(3) The necessary data that must be submitted to the Government in the first article approval test

report;

(b) Provide, in the circumstance where the Government is to be responsible for the first article

approval testing-

(1) The performance or other characteristics that the first article must meet for approval; and

(2) The tests to which the first article will be subjected for approval;

(c) Inform offerors that the requirement may be waived when supplies identical or similar to those

called for have previously been delivered by the offeror and accepted by the Government (see
52.209-3(h) and 52.209-4(i));

(d) Permit the submission of alternative offers, one including testing and approval and the other

excluding testing and approval (if eligible under paragraph (c) of this section);

(e) State clearly the first article’s relationship to the contract quantity (see paragraph (e) of the

clause at 52.209-3, First Article Approval-Contractor Testing, or 52.209-4, First Article ApprovalGovernment Testing);

(f) Contain a delivery schedule for the production quantity (see 11.403). The delivery schedule may-

(1) Be the same whether or not testing and approval is waived; or

(2) Provide for earlier delivery when testing and approval is waived and the Government desires

earlier delivery. In the latter case, any resulting difference in delivery schedules shall not be a factor

in evaluation for award. The clause at 52.209-4, First Article Approval-Government Testing, shall

contain the delivery schedule for the first article;

(g) Provide for the submission of contract numbers, if any, to document the offeror’s eligibility under

paragraph (c) of this section;

(h) State whether the approved first article will serve as a manufacturing standard;

(i) Include, when the Government is responsible for first article testing, the Government’s estimated

testing costs as a factor for use in evaluating offers (when appropriate); and

(j) Inform offerors that the prices for first articles and first article tests in relation to production

quantities shall not be materially unbalanced (see 15.404-1(g)) if first article test items or tests are

to be separately priced.

9.307 Government administration procedures.

(a) Before the contractor ships the first article, or the first article test report, to the Government

laboratory or other activity responsible for approval at the address specified in the contract, the

contract administration office shall provide that activity with as much advance notification as is

feasible of the forthcoming shipment, and-

(1) Advise that activity of the contractual requirements for testing and approval, or evaluation, as

appropriate;

(2) Call attention to the notice requirement in paragraph (b) of the clause at 52.209-3, First Article

Approval-Contractor Testing, or 52.209-4, First Article Approval-Government Testing; and

(3) Request that the activity inform the contract administration office of the date when testing or

evaluation will be completed.

(b) The Government laboratory or other activity responsible for first article testing or evaluation

shall inform the contracting office whether to approve, conditionally approve, or disapprove the first

article. The contracting officer shall then notify the contractor of the action taken and furnish a copy

of the notice to the contract administration office. The notice shall include the first article shipment

number, when available, and the applicable line item number. Any changes in the drawings, designs,

or specifications determined by the contracting officer to be necessary shall be made under the
Changes clause, and not by the notice of approval, conditional approval, or disapproval furnished the

contractor.

9.308 Contract clauses.

9.308-1 Testing performed by the contractor.

(a)

(1) The contracting officer shall insert the clause at 52.209-3, First Article Approval-Contractor

Testing, in solicitations and contracts when a fixed-price contract is contemplated and it is intended

that the contract require-

(i) First article approval; and

(ii) That the contractor be required to conduct the first article testing.

(2) If it is intended that the contractor be required to produce the first article and the production

quantity at the same facility, the contracting officer shall use the clause with its Alternate I.

(3) If it is necessary to authorize the contractor to purchase material or to commence production

before first article approval, the contracting officer shall use the clause with its Alternate II.

(b)

(1) The contracting officer shall insert a clause substantially the same as the clause at 52.209-3,

First Article Approval—Contractor Testing, in solicitations and contracts when a cost-reimbursement

contract is contemplated and it is intended that the contract require

(i) First article approval and

(ii) That the contractor be required to conduct the first article test.

(2) If it is intended that the contractor be required to produce the first article and the production

quantity at the same facility, the contracting officer shall use a clause substantially the same as the

clause at 52.209-3, First Article Approval—Contractor Testing, with its Alternate I.

(3) If it is necessary to authorize the contractor to purchase material or to commence production

before first article approval, the contracting officer shall use a clause substantially the same as the

clause at 52.209-3, First Article Approval—Contractor Testing, with its Alternate II.

9.308-2 Testing performed by the Government.

(a)

(1) The contracting officer shall insert the clause at 52.209-4, First Article Approval-Government

Testing, in solicitations and contracts when a fixed-price contract is contemplated and it is intended
that the contract require first article approval and that the Government will be responsible for

conducting the first article test.

(2) If it is intended that the contractor be required to produce the first article and the production

quantity at the same facility, the contracting officer shall use the basic clause with its Alternate I.

(3) If it is necessary to authorize the contractor to purchase material or to commence production

before first article approval, the contracting officer shall use the basic clause with its Alternate II.

(b)

(1) The contracting officer shall insert a clause substantially the same as the clause at 52.209-4,

First Article Approval-Government Testing, in solicitations and contracts when a cost-reimbursement

contract is contemplated and it is intended that the contract require first article approval and that

the Government be responsible for conducting the first article test.

(2) If it is intended that the contractor be required to produce the first article and the production

quantity at the same facility, the contracting officer shall use a clause substantially the same as the

clause at 52.209-4, First Article Approval-Government Testing, with its Alternate I.

(3) If it is necessary to authorize the contractor to purchase material or to commence production

before first article approval, the contracting officer shall use a clause substantially the same as the

clause at 52.209-4, First Article Approval-Government Testing, with its Alternate II.

Subpart 9.4 - Debarment, Suspension, and Ineligibility

9.400 Scope of subpart.

(a) This subpart-

(1) Prescribes policies and procedures governing the debarment and suspension of contractors by

agencies for the causes given in 9.406-2 and 9.407-2;

(2) Provides for the listing of contractors debarred, suspended, proposed for debarment, and

declared ineligible (see the definition of "ineligible" in 2.101); and

(3) Sets forth the consequences of this listing.

(b) Although this subpart does cover the listing of ineligible contractors (9.404) and the effect of this

listing (9.405), it does not prescribe policies and procedures governing declarations of ineligibility

except for contractors that have been declared ineligible pursuant to 10 U.S.C. 983 (see 9.110, and

9.405-1(b)).

(c) For Federal Acquisition Supply Chain Security Act (FASCSA) orders, see subpart 4.23.

9.401 Applicability.

In accordance with Public Law 103-355, Section 2455 (31 U.S.C.6101, note), and Executive Order
12689, any debarment, suspension or other Governmentwide exclusion initiated under the

Nonprocurement Common Rule implementing Executive Order 12549 on or after August 25, 1995,

shall be recognized by and effective for Executive Branch agencies as a debarment or suspension

under this subpart. Similarly, any debarment, suspension, proposed debarment or other

Governmentwide exclusion initiated on or after August 25, 1995, under this subpart shall also be

recognized by and effective for those agencies and participants as an exclusion under the

Nonprocurement Common Rule.

9.402 Policy.

(a) Agencies shall solicit offers from, award contracts to, and consent to subcontracts with

responsible contractors only. Debarment and suspension are discretionary actions that, taken in

accordance with this subpart, are appropriate means to effectuate this policy.

(b) The serious nature of debarment and suspension requires that these sanctions be imposed only in

the public interest for the Government’s protection and not for purposes of punishment. Agencies

shall impose debarment or suspension to protect the Government’s interest and only for the causes

and in accordance with the procedures set forth in this subpart.

(c) Agencies are encouraged to establish methods and procedures for coordinating their debarment

or suspension actions.

(d) When more than one agency has an interest in the debarment or suspension of a contractor, the

Interagency Committee on Debarment and Suspension, established under Executive Order 12549,

and authorized by Section 873 of the National Defense Authorization Act for Fiscal Year 2009 (Pub.

L. 110-417) (31 U.S.C.6101, note), shall resolve the lead agency issue and coordinate such resolution

among all interested agencies prior to the initiation of any suspension, debarment, or related

administrative action by any agency.

(e) Agencies shall establish appropriate procedures to implement the policies and procedures of this

subpart.

9.403 Definitions.

As used in this subpart—

Affiliates.–

(1) Business concerns, organizations, or individuals are affiliates of each other if, directly or

indirectly–

(i) Either one controls or has the power to control the other; or

(ii) A third party controls or has the power to control both.

(2) Indicia of control include, but are not limited to, interlocking management or ownership, identity

of interests among family members, shared facilities and equipment, common use of employees, or a

business entity organized following the debarment, suspension, or proposed debarment of a

contractor which has the same or similar management, ownership, or principal employees as the

contractor that was debarred, suspended, or proposed for debarment.
Agency means any executive department, military department or defense agency, or other agency or

independent establishment of the executive branch.

Civil judgment means a judgment or finding of a civil offense by any court of competent jurisdiction.

Contractor means any individual or other legal entity that–

(1) Directly or indirectly (e.g., through an affiliate), submits offers for or is awarded, or reasonably

may be expected to submit offers for or be awarded, a Government contract, including a contract for

carriage under Government or commercial bills of lading, or a subcontract under a Government

contract; or

(2) Conducts business, or reasonably may be expected to conduct business, with the Government as

an agent or representative of another contractor.

Debarring official means–

(1) An agency head; or

(2) A designee authorized by the agency head to impose debarment.

Indictment means indictment for a criminal offense. An information or other filing by competent

authority charging a criminal offense is given the same effect as an indictment.

Legal proceedings means any civil judicial proceeding to which the Government is a party or any

criminal proceeding. The term includes appeals from such proceedings.

Nonprocurement Common Rule means the procedures used by Federal Executive Agencies to

suspend, debar, or exclude individuals or entities from participation in nonprocurement transactions

under Executive Order 12549. Examples of nonprocurement transactions are grants, cooperative

agreements, scholarships, fellowships, contracts of assistance, loans, loan guarantees, subsidies,

insurance, payments for specified use, and donation agreements.

Suspending official means–

(1) An agency head; or

(2) A designee authorized by the agency head to impose debarment.

Unfair trade practices means the commission of any or the following acts by a contractor–

(1) A violation of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) as determined by the

International Trade Commission.

(2) A violation, as determined by the Secretary of Commerce, of any agreement of the group known

as the "Coordination Committee" for purposes of the Export Administration Act of 1979 (50 U.S.C.

App. 2401, et seq.) or any similar bilateral or multilateral export control agreement.

(3) A knowingly false statement regarding a material element of a certification concerning the

foreign content of an item of supply, as determined by the Secretary of the Department or the head

of the agency to which such certificate was furnished.
9.404 Exclusions in the System for Award Management.

(a) The General Services Administration (GSA)—

(1) Operates the web-based System for Award Management (SAM), which contains exclusion

records; and

(2) Provides technical assistance to Federal agencies in the use of SAM.

(b) An exclusion record in SAM contains the—

(1) Names and addresses of the entities debarred, suspended, proposed for debarment, declared

ineligible, or excluded or disqualified under the nonprocurement common rule, with cross-references

when more than one name is involved in a single action;

(2) Name of the agency or other authority taking the action;

(3) Cause for the action (see 9.406-2 and 9.407-2 for causes authorized under this subpart) or other

statutory or regulatory authority;

(4) Effect of the action;

(5) Termination date for each listing;

(6) Unique Entity Identifier;

(7) Social Security Number (SSN), Employer Identification Number (EIN), or other Taxpayer

Identification Number (TIN), if available; and

(8) Name and telephone number of the agency point of contact for the action.

(c) Each agency must—

(1) Identify the individual(s) responsible for entering and updating exclusions data in SAM and

assign the appropriate roles;

(2) Remove the exclusion roles in SAM when the individual leaves the organization or changes

functions;

(3) For each exclusion accomplished by the Agency–

(i) Enter the information required by paragraph (b) of this section within 3 working days after the

action becomes effective;

(ii) Determine whether it is legally permitted to enter the SSN, EIN, or other TIN, under agency

authority to suspend or debar; and

(iii) Update the exclusion record in SAM, generally within 5 working days after modifying or

rescinding an action;

(4) In accordance with internal retention procedures, maintain records relating to each debarment,

suspension, or proposed debarment taken by the agency;
(5) Establish procedures to ensure that the agency does not solicit offers from, award contracts to,

or consent to subcontracts with contractors who have an active exclusion record in SAM, except as

otherwise provided in this subpart;

(6) Direct inquiries concerning listed contractors and other entities to the agency or other authority

that took the action; and

(7) Contact GSA for technical assistance with SAM, via the support e-mail address or on the

technical support phone line.

(d) SAM is available via https://www.sam.gov.

9.405 Effect of listing.

(a) Contractors debarred, suspended, or proposed for debarment are excluded from receiving

contracts, and agencies shall not solicit offers from, award contracts to, or consent to subcontracts

with these contractors, unless the agency head determines that there is a compelling reason for such

action (see 9.405-1(a)(2), 9.405-2, 9.406-1(c), 9.407-1(d), and 23.506(e)). Contractors debarred,

suspended, or proposed for debarment are also excluded from conducting business with the

Government as agents or representatives of other contractors.

(b) Contractors and other entities that have an active exclusion record in SAM because they have

been declared ineligible on the basis of statutory or other regulatory procedures are excluded from

receiving contracts, and if applicable, subcontracts, under the conditions and for the period set forth

in the statute or regulation. Agencies shall not solicit offers from, award contracts to, or consent to

subcontracts with these contractors under those conditions and for that period. 

(c) Agencies shall not enter into, renew, or extend contracts with contractors that have been

declared ineligible pursuant to 22 U.S.C. 2593e.

(d) Contractors debarred, suspended, or proposed for debarment are excluded from acting as

individual sureties (see part 28).

(e)

(1) After the opening of bids or receipt of proposals or quotes, the contracting officer shall review

the exclusion records in SAM.

(2) Bids received from any listed contractor in response to an invitation for bids shall be entered on

the abstract of bids, and rejected unless the agency head determines in writing that there is a

compelling reason to consider the bid.

(3) Proposals, quotations, or offers received from any listed contractor shall not be evaluated for

award or included in the competitive range, nor shall discussions be conducted with a listed offeror

during a period of ineligibility, unless the agency head determines, in writing, that there is a

compelling reason to do so. If the period of ineligibility expires or is terminated prior to award, the

contracting officer may, but is not required to, consider such proposals, quotations, or offers.

(4) Immediately prior to award, the contracting officer shall again review the exclusion records in

SAM to ensure that no award is made to a listed contractor.
9.405-1 Continuation of current contracts.

(a) Contractors debarred, suspended, or proposed for debarment.

(1) Notwithstanding the debarment, suspension, or proposed debarment of a contractor, agencies

may continue contracts or subcontracts in existence at the time the contractor was debarred,

suspended, or proposed for debarment unless the agency head directs otherwise. A decision as to

the type of termination action, if any, to be taken should be made only after review by agency

contracting and technical personnel and by counsel to ensure the propriety of the proposed action.

(2) For contractors debarred, suspended, or proposed for debarment, unless the agency head makes

a written determination of the compelling reasons for doing so, ordering activities shall not—

(i) Place orders exceeding the guaranteed minimum under indefinite quantity contracts;

(ii) Place orders under Federal Supply Schedule contracts, blanket purchase agreements, or basic

ordering agreements; or

(iii) Add new work, exercise options, or otherwise extend the duration of current contracts or orders.

(b) Ineligible contractors. A covered agency, as defined in 9.110-1, shall terminate existing contracts

and shall not place new orders or award new contracts with contractors that have been declared

ineligible pursuant to 10 U.S.C. 983 (see 9.110), except for contracts at or below the simplified

acquisition threshold or contracts for the acquisition of commercial products and commercial

services.

9.405-2 Restrictions on subcontracting.

(a) When a contractor debarred, suspended, or proposed for debarment is proposed as a

subcontractor for any subcontract subject to Government consent (see subpart 44.2), contracting

officers shall not consent to subcontracts with such contractors unless the agency head states in

writing the compelling reasons for this approval action. (See 9.405 concerning declarations of

ineligibility affecting sub-contracting.)

(b) The Government suspends or debars contractors to protect the Government’s interests.

Contractors are prohibited from entering into any subcontract in excess of $35,000, other than a

subcontract for a commercially available off-the-shelf item, with a contractor that has been

debarred, suspended, or proposed for debarment, unless there is a compelling reason to do so. If a

contractor intends to enter into a subcontract in excess of $35,000, other than a subcontract for a

commercially available off-the-shelf item, with a party that is debarred, suspended, or proposed for

debarment as evidenced by the party's having an active exclusion record in SAM (see 9.404), a

corporate officer or designee of the contractor is required by operation of the clause at 52.209-6,

Protecting the Government’s Interests when Subcontracting with Contractors Debarred, Suspended,

or Proposed for Debarment, to notify the contracting officer, in writing, before entering into such

subcontract. For contracts for the acquisition of commercial products, the notification requirement

applies only for first-tier subcontracts. For all other contracts, the notification requirement applies

to subcontracts at any tier. The notice must provide the following:

(1) The name of the subcontractor;
(2) The contractor’s knowledge of the reasons for the subcontractor having an active exclusion

record in SAM;

(3) The compelling reason(s) for doing business with the subcontractor notwithstanding its having

an active exclusion record in SAM; and

(4) The systems and procedures the contractor has established to ensure that it is fully protecting

the Government’s interests when dealing with such subcontractor in view of the specific basis for

the party’s debarment, suspension, or proposed debarment.

(c) The contractor’s compliance with the requirements of 52.209-6 will be reviewed during

Contractor Purchasing System Reviews (see subpart 44.3).

9.406 Debarment.

9.406-1 General.

(a) It is the debarring official’s responsibility to determine whether debarment is in the

Government’s interest. The debarring official may, in the public interest, debar a contractor for any

of the causes in 9.406-2, using the procedures in 9.406-3. The existence of a cause for debarment,

however, does not necessarily require that the contractor be debarred; the seriousness of the

contractor’s acts or omissions and any remedial measures or mitigating factors should be considered

in making any debarment decision. Before arriving at any debarment decision, the debarring official

should consider factors such as the following:

(1) Whether the contractor had effective standards of conduct and internal control systems in place

at the time of the activity which constitutes cause for debarment or had adopted such procedures

prior to any Government investigation of the activity cited as a cause for debarment.

(2) Whether the contractor brought the activity cited as a cause for debarment to the attention of the

appropriate Government agency in a timely manner.

(3) Whether the contractor has fully investigated the circumstances surrounding the cause for

debarment and, if so, made the result of the investigation available to the debarring official.

(4) Whether the contractor cooperated fully with Government agencies during the investigation and

any court or administrative action.

(5) Whether the contractor has paid or has agreed to pay all criminal, civil, and administrative

liability for the improper activity, including any investigative or administrative costs incurred by the

Government, and has made or agreed to make full restitution.

(6) Whether the contractor has taken appropriate disciplinary action against the individuals

responsible for the activity which constitutes cause for debarment.

(7) Whether the contractor has implemented or agreed to implement remedial measures, including

any identified by the Government.

(8) Whether the contractor has instituted or agreed to institute new or revised review and control

procedures and ethics training programs.
(9) Whether the contractor has had adequate time to eliminate the circumstances within the

contractor’s organization that led to the cause for debarment.

(10) Whether the contractor’s management recognizes and understands the seriousness of the

misconduct giving rise to the cause for debarment and has implemented programs to prevent

recurrence.

The existence or nonexistence of any mitigating factors or remedial measures such as set forth in

this paragraph (a) is not necessarily determinative of a contractor’s present responsibility.

Accordingly, if a cause for debarment exists, the contractor has the burden of demonstrating, to the

satisfaction of the debarring official, its present responsibility and that debarment is not necessary.

(b) Debarment constitutes debarment of all divisions or other organizational elements of the

contractor, unless the debarment decision is limited by its terms to specific divisions, organizational

elements, or commodities. The debarring official may extend the debarment decision to include any

affiliates of the contractor if they are-

(1) Specifically named; and

(2) Given written notice of the proposed debarment and an opportunity to respond (see 9.406-3(c)).

(c) A contractor’s debarment, or proposed debarment, shall be effective throughout the executive

branch of the Government, unless the agency head or a designee (except see 23.506(e)) states in

writing the compelling reasons justifying continued business dealings between that agency and the

contractor.

(d)

(1) When the debarring official has authority to debar contractors from both acquisition contracts

pursuant to this regulation and contracts for the purchase of Federal personal property pursuant to

the Federal Property Management Regulations (FPMR) 101-45.6, that official shall consider

simultaneously debarring the contractor from the award of acquisition contracts and from the

purchase of Federal personal property.

(2) When debarring a contractor from the award of acquisition contracts and from the purchase of

Federal personal property, the debarment notice shall so indicate and the appropriate FAR and

FPMR citations shall be included.

9.406-2 Causes for debarment.

The debarring official may debar-

(a) A contractor for a conviction of or civil judgment for-

(1) Commission of fraud or a criminal offense in connection with-

(i) Obtaining;

(ii) Attempting to obtain; or

(iii) Performing a public contract or subcontract.
(2) Violation of Federal or State antitrust statutes relating to the submission of offers;

(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records,

making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen

property;

(4) Intentionally affixing a label bearing a "Made in America" inscription (or any inscription having

the same meaning) to a product sold in or shipped to the United States or its outlying areas, when

the product was not made in the United States or its outlying areas (see Section 202 of the Defense

Production Act (Public Law102-558)); or

(5) Commission of any other offense indicating a lack of business integrity or business honesty that

seriously and directly affects the present responsibility of a Government contractor or

subcontractor.

(b)

(1) A contractor, based upon a preponderance of the evidence, for any of the following-

(i) Violation of the terms of a Government contract or subcontract so serious as to justify debarment,

such as-

(A) Willful failure to perform in accordance with the terms of one or more contracts; or

(B) A history of failure to perform, or of unsatisfactory performance of, one or more contracts.

(ii) Violations of 41 U.S.C. chapter 81, Drug-Free Workplace, as indicated by-

(A) Failure to comply with the requirements of the clause at 52.223-6, Drug-Free Workplace; or

(B) Such a number of contractor employees convicted of violations of criminal drug statutes

occurring in the workplace as to indicate that the contractor has failed to make a good faith effort to

provide a drug-free workplace (see 23.504).

(iii) Intentionally affixing a label bearing a "Made in America" inscription (or any inscription having

the same meaning) to a product sold in or shipped to the United States or its outlying areas, when

the product was not made in the United States or its outlying areas (see Section 202 of the Defense

Production Act (Public Law102-558)).

(iv) Commission of an unfair trade practice as defined in 9.403 (see Section 201 of the Defense

Production Act (Pub.L.102-558)).

(v) Delinquent Federal taxes in an amount that exceeds $10;000.

(A) Federal taxes are considered delinquent for purposes of this provision if both of the following

criteria apply:

(1) The tax liability is finally determined. The liability is finally determined if it has been assessed. A

liability is not finally determined if there is a pending administrative or judicial challenge. In the

case of a judicial challenge to the liability, the liability is not finally determined until all judicial

appeal rights have been exhausted.

(2) The taxpayer is delinquent in making payment. A taxpayer is delinquent if the taxpayer has failed
to pay the tax liability when full payment was due and required. A taxpayer is not delinquent in cases

where enforced collection action is precluded.

(B) Examples.

(1) The taxpayer has received a statutory notice of deficiency, under I.R.C. §6212, which entitles the

taxpayer to seek Tax Court review of a proposed tax deficiency. This is not a delinquent tax because

it is not a final tax liability. Should the taxpayer seek Tax Court review, this will not be a final tax

liability until the taxpayer has exercised all judicial appeal rights.

(2) The IRS has filed a notice of Federal tax lien with respect to an assessed tax liability, and the

taxpayer has been issued a notice under I.R.C. §6320 entitling the taxpayer to request a hearing with

the IRS Office of Appeals contesting the lien filing, and to further appeal to the Tax Court if the IRS

determines to sustain the lien filing. In the course of the hearing, the taxpayer is entitled to contest

the underlying tax liability because the taxpayer has had no prior opportunity to contest the liability.

This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek tax court

review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.

(3) The taxpayer has entered into an installment agreement pursuant to I.R.C. §6159. The taxpayer is

making timely payments and is in full compliance with the agreement terms. The taxpayer is not

delinquent because the taxpayer is not currently required to make full payment.

(4) The taxpayer has filed for bankruptcy protection. The taxpayer is not delinquent because

enforced collection action is stayed under 11 U.S.C. 362 (the Bankruptcy Code).

(vi) Knowing failure by a principal, until 3 years after final payment on any Government contract

awarded to the contractor, to timely disclose to the Government, in connection with the award,

performance, or closeout of the contract or a subcontract thereunder, credible evidence of-

(A) Violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity

violations found in Title 18 of the United States Code;

(B) Violation of the civil False Claims Act (31 U.S.C. 3729-3733); or

(C) Significant overpayment(s) on the contract, other than overpayments resulting from contract

financing payments as defined in 32.001.

(vii) Determination of a false certification under 52.209-13, Violation of Arms Control Treaties or

Agreements-Certification.

(2) A contractor, based on a determination by the Secretary of Homeland Security or the Attorney

General of the United States, that the contractor is not in compliance with Immigration and

Nationality Act employment provisions (see Executive Order12989, as amended by Executive

Order13286). Such determination is not reviewable in the debarment proceedings.

(c) A contractor or subcontractor based on any other cause of so serious or compelling a nature that

it affects the present responsibility of the contractor or subcontractor.

9.406-3 Procedures.

(a) Investigation and referral. Agencies shall establish procedures for the prompt reporting,
investigation, and referral to the debarring official of matters appropriate for that official’s

consideration.

(b) Decisionmaking process.

(1) Agencies shall establish procedures governing the debarment decisionmaking process that are as

informal as is practicable, consistent with principles of fundamental fairness. These procedures shall

afford the contractor (and any specifically named affiliates) an opportunity to submit, in person, in

writing, or through a representative, information and argument in opposition to the proposed

debarment.

(2) In actions not based upon a conviction or civil judgment, if it is found that the contractor’s

submission in opposition raises a genuine dispute over facts material to the proposed debarment,

agencies shall also-

(i) Afford the contractor an opportunity to appear with counsel, submit documentary evidence,

present witnesses, and confront any person the agency presents; and

(ii) Make a transcribed record of the proceedings and make it available at cost to the contractor

upon request, unless the contractor and the agency, by mutual agreement, waive the requirement

for a transcript.

(c) Notice of proposal to debar. A notice of proposed debarment shall be issued by the debarring

official advising the contractor and any specifically named affiliates, by certified mail, return receipt

requested-

(1) That debarment is being considered;

(2) Of the reasons for the proposed debarment in terms sufficient to put the contractor on notice of

the conduct or transaction(s) upon which it is based;

(3) Of the cause(s) relied upon under 9.406-2 for proposing debarment;

(4) That, within 30 days after receipt of the notice, the contractor may submit, in person, in writing,

or through a representative, information and argument in opposition to the proposed debarment,

including any additional specific information that raises a genuine dispute over the material facts;

(5) Of the agency’s procedures governing debarment decisionmaking;

(6) Of the effect of the issuance of the notice of proposed debarment; and

(7) Of the potential effect of an actual debarment.

(d) Debarring official’s decision.

(1) In actions based upon a conviction or civil judgment, or in which there is no genuine dispute over

material facts, the debarring official shall make a decision on the basis of all the information in the

administrative record, including any submission made by the contractor. If no suspension is in effect,

the decision shall be made within 30 working days after receipt of any information and argument

submitted by the contractor, unless the debarring official extends this period for good cause.
(2)

(i) In actions in which additional proceedings are necessary as to disputed material facts, written

findings of fact shall be prepared. The debarring official shall base the decision on the facts as

found, together with any information and argument submitted by the contractor and any other

information in the administrative record.

(ii) The debarring official may refer matters involving disputed material facts to another official for

findings of fact. The debarring official may reject any such findings, in whole or in part, only after

specifically determining them to be arbitrary and capricious or clearly erroneous.

(iii) The debarring official’s decision shall be made after the conclusion of the proceedings with

respect to disputed facts.

(3) In any action in which the proposed debarment is not based upon a conviction or civil judgment,

the cause for debarment must be established by a preponderance of the evidence.

(e) Notice of debarring official’s decision.

(1) If the debarring official decides to impose debarment, the contractor and any affiliates involved

shall be given prompt notice by certified mail, return receipt requested-

(i) Referring to the notice of proposed debarment;

(ii) Specifying the reasons for debarment;

(iii) Stating the period of debarment, including effective dates; and

(iv) Advising that the debarment is effective throughout the executive branch of the Government

unless the head of an agency or a designee makes the statement called for by 9.406-1(c).

(2) If debarment is not imposed, the debarring official shall promptly notify the contractor and any

affiliates involved, by certified mail, return receipt requested.

(f)

(1) If the contractor enters into an administrative agreement with the Government in order to

resolve a debarment proceeding, the debarring official shall access the website (available at

https://www.cpars.gov, then select FAPIIS) and enter the requested information.

(2) The debarring official is responsible for the timely submission, within 3 working days, and

accuracy of the documentation regarding the administrative agreement.

(3) With regard to information that may be covered by a disclosure exemption under the Freedom of

Information Act, the debarring official shall follow the procedures at 9.105-2(b)(2)(iv).

9.406-4 Period of debarment.

(a)
(1) Debarment shall be for a period commensurate with the seriousness of the cause(s). Generally,

debarment should not exceed 3 years, except that-

(i) Debarment for violation of the provisions of 41 U.S.C. chapter 81, Drug-Free Workplace (see

23.506) may be for a period not to exceed 5 years;

(ii) Debarments under 9.406-2(b)(2) shall be for 1 year unless extended pursuant to paragraph (b) of

this section; and

(iii) Debarments under 9.406-2(b)(1)(vii) shall be for a period of not less than 2 years, inclusive of

any suspension period, if suspension precedes a debarment (see paragraph (a)(2) of this section).

(2) If suspension precedes a debarment, the suspension period shall be considered in determining

the debarment period.

(b) The debarring official may extend the debarment for an additional period, if that official

determines that an extension is necessary to protect the Government’s interest. However, a

debarment may not be extended solely on the basis of the facts and circumstances upon which the

initial debarment action was based. Debarments under 9.406-2(b)(2) may be extended for additional

periods of one year if the Secretary of Homeland Security or the Attorney General determines that

the contractor continues to be in violation of the employment provisions of the Immigration and

Nationality Act. If debarment for an additional period is determined to be necessary, the procedures

of 9.406-3 shall be followed to extend the debarment.

(c) The debarring official may reduce the period or extent of debarment, upon the contractor’s

request, supported by documentation, for reasons such as-

(1) Newly discovered material evidence;

(2) Reversal of the conviction or civil judgment upon which the debarment was based;

(3) Bona fide change in ownership or management;

(4) Elimination of other causes for which the debarment was imposed; or

(5) Other reasons the debarring official deems appropriate.

9.406-5 Scope of debarment.

(a) The fraudulent, criminal, or other seriously improper conduct of any officer, director,

shareholder, partner, employee, or other individual associated with a contractor may be imputed to

the contractor when the conduct occurred in connection with the individual’s performance of duties

for or on behalf of the contractor, or with the contractor’s knowledge, approval, or acquiescence.

The contractor’s acceptance of the benefits derived from the conduct shall be evidence of such

knowledge, approval, or acquiescence.

(b) The fraudulent, criminal, or other seriously improper conduct of a contractor may be imputed to

any officer, director, shareholder, partner, employee, or other individual associated with the

contractor who participated in, knew of, or had reason to know of the contractor’s conduct.

(c) The fraudulent, criminal, or other seriously improper conduct of one contractor participating in a

joint venture or similar arrangement may be imputed to other participating contractors if the
conduct occurred for or on behalf of the joint venture or similar arrangement, or with the

knowledge, approval, or acquiescence of these contractors. Acceptance of the benefits derived from

the conduct shall be evidence of such knowledge, approval, or acquiescence.

9.407 Suspension.

9.407-1 General.

(a) The suspending official may, in the public interest, suspend a contractor for any of the causes in

9.407-2, using the procedures in 9.407-3.

(b)

(1) Suspension is a serious action to be imposed on the basis of adequate evidence, pending the

completion of investigation or legal proceedings, when it has been determined that immediate action

is necessary to protect the Government’s interest. In assessing the adequacy of the evidence,

agencies should consider how much information is available, how credible it is given the

circumstances, whether or not important allegations are corroborated, and what inferences can

reasonably be drawn as a result. This assessment should include an examination of basic documents

such as contracts, inspection reports, and correspondence.

(2) The existence of a cause for suspension does not necessarily require that the contractor be

suspended. The suspending official should consider the seriousness of the contractor’s acts or

omissions and may, but is not required to, consider remedial measures or mitigating factors, such as

those set forth in 9.406-1(a). A contractor has the burden of promptly presenting to the suspending

official evidence of remedial measures or mitigating factors when it has reason to know that a cause

for suspension exists. The existence or nonexistence of any remedial measures or mitigating factors

is not necessarily determinative of a contractor’s present responsibility.

(c) Suspension constitutes suspension of all divisions or other organizational elements of the

contractor, unless the suspension decision is limited by its terms to specific divisions, organizational

elements, or commodities. The suspending official may extend the suspension decision to include

any affiliates of the contractor if they are-

(1) Specifically named; and

(2) Given written notice of the suspension and an opportunity to respond (see 9.407-3(c)).

(d) A contractor’s suspension shall be effective throughout the executive branch of the Government,

unless the agency head or a designee (except see 23.506(e)) states in writing the compelling reasons

justifying continued business dealings between that agency and the contractor.

(e)

(1) When the suspending official has authority to suspend contractors from both acquisition

contracts pursuant to this regulation and contracts for the purchase of Federal personal property

pursuant to FPMR 101-45.6, that official shall consider simultaneously suspending the contractor

from the award of acquisition contracts and from the purchase of Federal personal property.
(2) When suspending a contractor from the award of acquisition contracts and from the purchase of

Federal personal property, the suspension notice shall so indicate and the appropriate FAR and

FPMR citations shall be included.

9.407-2 Causes for suspension.

(a) The suspending official may suspend a contractor suspected, upon adequate evidence, of-

(1) Commission of fraud or a criminal offense in connection with-

(i) Obtaining;

(ii) Attempting to obtain; or

(iii) Performing a public contract or subcontract.

(2) Violation of Federal or State antitrust statutes relating to the submission of offers;

(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records,

making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen

property;

(4) Violations of 41 U.S.C. chapter 81, Drug-Free Workplace, as indicated by-

(i) Failure to comply with the requirements of the clause at 52.223-6, Drug-Free Workplace; or

(ii) Such a number of contractor employees convicted of violations of criminal drug statutes

occurring in the workplace as to indicate that the contractor has failed to make a good faith effort to

provide a drug-free workplace (see 23.504);

(5) Intentionally affixing a label bearing a "Made in America" inscription (or any inscription having

the same meaning) to a product sold in or shipped to the United States or its outlying areas, when

the product was not made in the United States or its outlying areas (see Section 202 of the Defense

Production Act (Public Law102-558));

(6) Commission of an unfair trade practice as defined in 9.403 (see section 201 of the Defense

Production Act (Pub.L.102-558));

(7) Delinquent Federal taxes in an amount that exceeds $10;000. See the criteria at 9.406-2(b)(1)(v)

for determination of when taxes are delinquent;

(8) Knowing failure by a principal, until 3 years after final payment on any Government contract

awarded to the contractor, to timely disclose to the Government, in connection with the award,

performance, or closeout of the contract or a subcontract thereunder, credible evidence of-

(i) Violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity

violations found in Title 18 of the United States Code;

(ii) Violation of the civil False Claims Act (31 U.S.C. 3729-3733); or

(iii) Significant overpayment(s) on the contract, other than overpayments resulting from contract

financing payments as defined in 32.001; or
(9) Determination of a false certification under 52.209-13, Violation of Arms Control Treaties or

Agreements-Certification.

(10) Commission of any other offense indicating a lack of business integrity or business honesty that

seriously and directly affects the present responsibility of a Government contractor or

subcontractor.

(b) Indictment for any of the causes in paragraph (a) of this section constitutes adequate evidence

for suspension.

(c) The suspending official may upon adequate evidence also suspend a contractor for any other

cause of so serious or compelling a nature that it affects the present responsibility of a Government

contractor or subcontractor.

9.407-3 Procedures.

(a) Investigation and referral. Agencies shall establish procedures for the prompt reporting,

investigation, and referral to the suspending official of matters appropriate for that official’s

consideration.

(b) Decisionmaking process.

(1) Agencies shall establish procedures governing the suspension decisionmaking process that are as

informal as is practicable, consistent with principles of fundamental fairness. These procedures shall

afford the contractor (and any specifically named affiliates) an opportunity, following the imposition

of suspension, to submit, in person, in writing, or through a representative, information and

argument in opposition to the suspension.

(2) In actions not based on an indictment, if it is found that the contractor’s submission in opposition

raises a genuine dispute over facts material to the suspension and if no determination has been

made, on the basis of Department of Justice advice, that substantial interests of the Government in

pending or contemplated legal proceedings based on the same facts as the suspension would be

prejudiced, agencies shall also-

(i) Afford the contractor an opportunity to appear with counsel, submit documentary evidence,

present witnesses, and confront any person the agency presents; and

(ii) Make a transcribed record of the proceedings and make it available at cost to the contractor

upon request, unless the contractor and the agency, by mutual agreement, waive the requirement

for a transcript.

(c) Notice of suspension. When a contractor and any specifically named affiliates are suspended,

they shall be immediately advised by certified mail, return receipt requested-

(1) That they have been suspended and that the suspension is based on an indictment or other

adequate evidence that the contractor has committed irregularities–

(i) Of a serious nature in business dealings with the Government or

(ii) Seriously reflecting on the propriety of further Government dealings with the contractor-any

such irregularities shall be described in terms sufficient to place the contractor on notice without
disclosing the Government’s evidence;

(2) That the suspension is for a temporary period pending the completion of an investigation and

such legal proceedings as may ensue;

(3) Of the cause(s) relied upon under 9.407-2 for imposing suspension;

(4) Of the effect of the suspension;

(5) That, within 30 days after receipt of the notice, the contractor may submit, in person, in writing,

or through a representative, information and argument in opposition to the suspension, including

any additional specific information that raises a genuine dispute over the material facts; and

(6) That additional proceedings to determine disputed material facts will be conducted unless-

(i) The action is based on an indictment; or

(ii) A determination is made, on the basis of Department of Justice advice, that the substantial

interests of the Government in pending or contemplated legal proceedings based on the same facts

as the suspension would be prejudiced.

(d) Suspending official’s decision.

(1) In actions—

(i) Based on an indictment;

(ii) In which the contractor’s submission does not raise a genuine dispute over material facts; or

(iii) In which additional proceedings to determine disputed material facts have been denied on the

basis of Department of Justice advice, the suspending official’s decision shall be based on all the

information in the administrative record, including any submission made by the contractor.

(2)

(i) In actions in which additional proceedings are necessary as to disputed material facts, written

findings of fact shall be prepared. The suspending official shall base the decision on the facts as

found, together with any information and argument submitted by the contractor and any other

information in the administrative record.

(ii) The suspending official may refer matters involving disputed material facts to another official for

findings of fact. The suspending official may reject any such findings, in whole or in part, only after

specifically determining them to be arbitrary and capricious or clearly erroneous.

(iii) The suspending official’s decision shall be made after the conclusion of the proceedings with

respect to disputed facts.

(3) The suspending official may modify or terminate the suspension or leave it in force (for example,

see 9.406-4(c) for the reasons for reducing the period or extent of debarment). However, a decision

to modify or terminate the suspension shall be without prejudice to the subsequent imposition of-

(i) Suspension by any other agency; or
(ii) Debarment by any agency.

(4) Prompt written notice of the suspending official’s decision shall be sent to the contractor and any

affiliates involved, by certified mail, return receipt requested.

(e)

(1) If the contractor enters into an administrative agreement with the Government in order to

resolve a suspension proceeding, the suspending official shall access the website (available at

https://www.cpars.gov, then select FAPIIS) and enter the requested information.

(2) The suspending official is responsible for the timely submission, within 3 working days, and

accuracy of the documentation regarding the administrative agreement.

(3) With regard to information that may be covered by a disclosure exemption under the Freedom of

Information Act, the suspending official shall follow the procedures at 9.105-2(b)(2)(iv).

9.407-4 Period of suspension.

(a) Suspension shall be for a temporary period pending the completion of investigation and any

ensuing legal proceedings, unless sooner terminated by the suspending official or as provided in this

subsection.

(b) If legal proceedings are not initiated within 12 months after the date of the suspension notice,

the suspension shall be terminated unless an Assistant Attorney General requests its extension, in

which case it may be extended for an additional 6 months. In no event may a suspension extend

beyond 18 months, unless legal proceedings have been initiated within that period.

(c) The suspending official shall notify the Department of Justice of the proposed termination of the

suspension, at least 30 days before the 12-month period expires, to give that Department an

opportunity to request an extension.

9.407-5 Scope of suspension.

The scope of suspension shall be the same as that for debarment (see 9.406-5), except that the

procedures of 9.407-3 shall be used in imposing suspension.

9.408 [Reserved]

9.409 Contract clause.

The contracting officer shall insert the clause at 52.209-6, Protecting the Government’s Interests

when Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment, in

solicitations and contracts where the contract value exceeds $35,000.
Subpart 9.5 - Organizational and Consultant Conflicts of

Interest

9.500 Scope of subpart.

This subpart-

(a) Prescribes responsibilities, general rules, and procedures for identifying, evaluating, and

resolving organizational conflicts of interest;

(b) Provides examples to assist contracting officers in applying these rules and procedures to

individual contracting situations; and

(c) Implements section 8141 of the 1989 Department of Defense Appropriation Act, Pub.L.100-463,

102 Stat.2270-47 (1988).

9.501 Definition.

Marketing consultant, as used in this subpart, means any independent contractor who furnishes

advice, information, direction, or assistance to an offeror or any other contractor in support of the

preparation or submission of an offer for a Government contract by that offeror. An independent

contractor is not a marketing consultant when rendering-

(1) Services excluded in subpart 37.2;

(2) Routine engineering and technical services (such as installation, operation, or maintenance of

systems, equipment, software, components, or facilities);

(3) Routine legal, actuarial, auditing, and accounting services; and

(4) Training services.

9.502 Applicability.

(a) This subpart applies to contracts with either profit or nonprofit organizations, including nonprofit

organizations created largely or wholly with Government funds.

(b) The applicability of this subpart is not limited to any particular kind of acquisition. However,

organizational conflicts of interest are more likely to occur in contracts involving-

(1) Management support services;

(2) Consultant or other professional services;

(3) Contractor performance of or assistance in technical evaluations; or

(4) Systems engineering and technical direction work performed by a contractor that does not have

overall contractual responsibility for development or production.
(c) An organizational conflict of interest may result when factors create an actual or potential

conflict of interest on an instant contract, or when the nature of the work to be performed on the

instant contract creates an actual or potential conflict of interest on a future acquisition. In the latter

case, some restrictions on future activities of the contractor may be required.

(d) Acquisitions subject to unique agency organizational conflict of interest statutes are excluded

from the requirements of this subpart.

9.503 Waiver.

The agency head or a designee may waive any general rule or procedure of this subpart by

determining that its application in a particular situation would not be in the Government’s interest.

Any request for waiver must be in writing, shall set forth the extent of the conflict, and requires

approval by the agency head or a designee. Agency heads shall not delegate waiver authority below

the level of head of a contracting activity.

9.504 Contracting officer responsibilities.

(a) Using the general rules, procedures, and examples in this subpart, contracting officers shall

analyze planned acquisitions in order to-

(1) Identify and evaluate potential organizational conflicts of interest as early in the acquisition

process as possible; and

(2) Avoid, neutralize, or mitigate significant potential conflicts before contract award.

(b) Contracting officers should obtain the advice of counsel and the assistance of appropriate

technical specialists in evaluating potential conflicts and in developing any necessary solicitation

provisions and contract clauses (see 9.506).

(c) Before issuing a solicitation for a contract that may involve a significant potential conflict, the

contracting officer shall recommend to the head of the contracting activity a course of action for

resolving the conflict (see 9.506).

(d) In fulfilling their responsibilities for identifying and resolving potential conflicts, contracting

officers should avoid creating unnecessary delays, burdensome information requirements, and

excessive documentation. The contracting officer’s judgment need be formally documented only

when a substantive issue concerning potential organizational conflict of interest exists.

(e) The contracting officer shall award the contract to the apparent successful offeror unless a

conflict of interest is determined to exist that cannot be avoided or mitigated. Before determining to

withhold award based on conflict of interest considerations, the contracting officer shall notify the

contractor, provide the reasons therefor, and allow the contractor a reasonable opportunity to

respond. If the contracting officer finds that it is in the best interest of the United States to award

the contract notwithstanding a conflict of interest, a request for waiver shall be submitted in

accordance with 9.503. The waiver request and decision shall be included in the contract file.
9.505 General rules.

The general rules in 9.505-1 through 9.505-4 prescribe limitations on contracting as the means of

avoiding, neutralizing, or mitigating organizational conflicts of interest that might otherwise exist in

the stated situations. Some illustrative examples are provided in 9.508. Conflicts may arise in

situations not expressly covered in this section 9.505 or in the examples in 9.508. Each individual

contracting situation should be examined on the basis of its particular facts and the nature of the

proposed contract. The exercise of common sense, good judgment, and sound discretion is required

in both the decision on whether a significant potential conflict exists and, if it does, the development

of an appropriate means for resolving it. The two underlying principles are-

(a) Preventing the existence of conflicting roles that might bias a contractor’s judgment; and

(b) Preventing unfair competitive advantage. In addition to the other situations described in this

subpart, an unfair competitive advantage exists where a contractor competing for award of any

Federal contract possesses-

(1) Proprietary information that was obtained from a Government official without proper

authorization; or

(2) Source selection information (as defined in 2.101) that is relevant to the contract but is not

available to all competitors, and such information would assist that contractor in obtaining the

contract.

9.505-1 Providing systems engineering and technical direction.

(a) A contractor that provides systems engineering and technical direction for a system but does not

have overall contractual responsibility for its development, its integration, assembly, and checkout,

or its production shall not-

(1) Be awarded a contract to supply the system or any of its major components; or

(2) Be a subcontractor or consultant to a supplier of the system or any of its major components.

(b) Systems engineering includes a combination of substantially all of the following activities:

determining specifications, identifying and resolving interface problems, developing test

requirements, evaluating test data, and supervising design. Technical direction includes a

combination of substantially all of the following activities: developing work statements, determining

parameters, directing other contractors’ operations, and resolving technical controversies. In

performing these activities, a contractor occupies a highly influential and responsible position in

determining a system’s basic concepts and supervising their execution by other contractors.

Therefore this contractor should not be in a position to make decisions favoring its own products or

capabilities.

9.505-2 Preparing specifications or work statements.

(a)
(1) If a contractor prepares and furnishes complete specifications covering nondevelopmental items,

to be used in a competitive acquisition, that contractor shall not be allowed to furnish these items,

either as a prime contractor or as a subcontractor, for a reasonable period of time including, at

least, the duration of the initial production contract. The restriction in this paragraph (a)(1) shall not

apply to-

(i) Contractors that furnish at Government request specifications or data regarding a product they

provide, even though the specifications or data may have been paid for separately or in the price of

the product; or

(ii) Situations in which contractors, acting as industry representatives, help Government agencies

prepare, refine, or coordinate specifications, regardless of source, provided this assistance is

supervised and controlled by Government representatives.

(2) If a single contractor drafts complete specifications for nondevelopmental equipment, it should

be eliminated for a reasonable time from competition for production based on the specifications.

This should be done in order to avoid a situation in which the contractor could draft specifications

favoring its own products or capabilities. In this way the Government can be assured of getting

unbiased advice as to the content of the specifications and can avoid allegations of favoritism in the

award of production contracts.

(3) In development work, it is normal to select firms that have done the most advanced work in the

field. These firms can be expected to design and develop around their own prior knowledge.

Development contractors can frequently start production earlier and more knowledgeably than firms

that did not participate in the development, and this can affect the time and quality of production,

both of which are important to the Government. In many instances the Government may have

financed the development. Thus, while the development contractor has a competitive advantage, it is

an unavoidable one that is not considered unfair; hence no prohibition should be imposed.

(b)

(1) If a contractor prepares, or assists in preparing, a work statement to be used in competitively

acquiring a system or services-or provides material leading directly, predictably, and without delay

to such a work statement-that contractor may not supply the system, major components of the

system, or the services unless-

(i) It is the sole source;

(ii) It has participated in the development and design work; or

(iii) More than one contractor has been involved in preparing the work statement.

(2) Agencies should normally prepare their own work statements. When contractor assistance is

necessary, the contractor might often be in a position to favor its own products or capabilities. To

overcome the possibility of bias, contractors are prohibited from supplying a system or services

acquired on the basis of work statements growing out of their services, unless excepted in

paragraph (b)(1) of this section.

(3) For the reasons given in paragraph (a)(3) of this section, no prohibitions are imposed on

development and design contractors.
9.505-3 Providing evaluation services.

Contracts for the evaluation of offers for products or services shall not be awarded to a contractor

that will evaluate its own offers for products or services, or those of a competitor, without proper

safeguards to ensure objectivity to protect the Government’s interests.

9.505-4 Obtaining access to proprietary information.

(a) When a contractor requires proprietary information from others to perform a Government

contract and can use the leverage of the contract to obtain it, the contractor may gain an unfair

competitive advantage unless restrictions are imposed. These restrictions protect the information

and encourage companies to provide it when necessary for contract performance. They are not

intended to protect information-

(1) Furnished voluntarily without limitations on its use; or

(2) Available to the Government or contractor from other sources without restriction.

(b) A contractor that gains access to proprietary information of other companies in performing

advisory and assistance services for the Government must agree with the other companies to protect

their information from unauthorized use or disclosure for as long as it remains proprietary and

refrain from using the information for any purpose other than that for which it was furnished. The

contracting officer shall obtain copies of these agreements and ensure that they are properly

executed.

(c) Contractors also obtain proprietary and source selection information by acquiring the services of

marketing consultants which, if used in connection with an acquisition, may give the contractor an

unfair competitive advantage. Contractors should make inquiries of marketing consultants to ensure

that the marketing consultant has provided no unfair competitive advantage.

9.506 Procedures.

(a) If information concerning prospective contractors is necessary to identify and evaluate potential

organizational conflicts of interest or to develop recommended actions, contracting officers first

should seek the information from within the Government or from other readily available sources.

Government sources include the files and the knowledge of personnel within the contracting office,

other contracting offices, the cognizant contract administration and audit activities and offices

concerned with contract financing. Non-Government sources include publications and commercial

services, such as credit rating services, trade and financial journals, and business directories and

registers.

(b) If the contracting officer decides that a particular acquisition involves a significant potential

organizational conflict of interest, the contracting officer shall, before issuing the solicitation, submit

for approval to the chief of the contracting office (unless a higher level official is designated by the

agency)-

(1) A written analysis, including a recommended course of action for avoiding, neutralizing, or

mitigating the conflict, based on the general rules in 9.505 or on another basis not expressly stated
in that section;

(2) A draft solicitation provision (see 9.507-1); and

(3) If appropriate, a proposed contract clause (see 9.507-2).

(c) The approving official shall-

(1) Review the contracting officer’s analysis and recommended course of action, including the draft

provision and any proposed clause;

(2) Consider the benefits and detriments to the Government and prospective contractors; and

(3) Approve, modify, or reject the recommendations in writing.

(d) The contracting officer shall-

(1) Include the approved provision(s) and any approved clause(s) in the solicitation or the contract,

or both;

(2) Consider additional information provided by prospective contractors in response to the

solicitation or during negotiations; and

(3) Before awarding the contract, resolve the conflict or the potential conflict in a manner consistent

with the approval or other direction by the head of the contracting activity.

(e) If, during the effective period of any restriction (see 9.507), a contracting office transfers

acquisition responsibility for the item or system involved, it shall notify the successor contracting

office of the restriction, and send a copy of the contract under which the restriction was imposed.

9.507 Solicitation provisions and contract clause.

9.507-1 Solicitation provisions.

As indicated in the general rules in 9.505, significant potential organizational conflicts of interest are

normally resolved by imposing some restraint, appropriate to the nature of the conflict, upon the

contractor’s eligibility for future contracts or subcontracts. Therefore, affected solicitations shall

contain a provision that-

(a) Invites offerors’ attention to this subpart;

(b) States the nature of the potential conflict as seen by the contracting officer;

(c) States the nature of the proposed restraint upon future contractor activities; and

(d) Depending on the nature of the acquisition, states whether or not the terms of any proposed

clause and the application of this subpart to the contract are subject to negotiation.

9.507-2 Contract clause.
(a) If, as a condition of award, the contractor’s eligibility for future prime contract or subcontract

awards will be restricted or the contractor must agree to some other restraint, the solicitation shall

contain a proposed clause that specifies both the nature and duration of the proposed restraint. The

contracting officer shall include the clause in the contract, first negotiating the clause’s final terms

with the successful offeror, if it is appropriate to do so (see 9.506(d)).

(b) The restraint imposed by a clause shall be limited to a fixed term of reasonable duration,

sufficient to avoid the circumstance of unfair competitive advantage or potential bias. This period

varies. It might end, for example, when the first production contract using the contractor’s

specifications or work statement is awarded, or it might extend through the entire life of a system

for which the contractor has performed systems engineering and technical direction. In every case,

the restriction shall specify termination by a specific date or upon the occurrence of an identifiable

event.

9.508 Examples.

The examples in paragraphs (a) through (i) of this section illustrate situations in which questions

concerning organizational conflicts of interest may arise. They are not all inclusive, but are intended

to help the contracting officer apply the general rules in 9.505 to individual contract situations.

(a) Company A agrees to provide systems engineering and technical direction for the Navy on the

powerplant for a group of submarines (i.e., turbines, drive shafts, propellers, etc.). Company A

should not be allowed to supply any powerplant components. Company A can, however, supply

components of the submarine unrelated to the powerplant (e.g., fire control, navigation, etc.). In this

example, the system is the powerplant, not the submarine, and the ban on supplying components is

limited to those for the system only.

(b) Company A is the systems engineering and technical direction contractor for system X. After

some progress, but before completion, the system is canceled. Later, system Y is developed to

achieve the same purposes as system X, but in a fundamentally different fashion. Company B is the

systems engineering and technical direction contractor for system Y. Company A may supply system

Y or its components.

(c) Company A develops new electronic equipment and, as a result of this development, prepares

specifications. Company A may supply the equipment.

(d) XYZ Tool Company and PQR Machinery Company, representing the American Tool Institute,

work under Government supervision and control to refine specifications or to clarify the

requirements of a specific acquisition. These companies may supply the item.

(e) Before an acquisition for information technology is conducted, Company A is awarded a contract

to prepare data system specifications and equipment performance criteria to be used as the basis for

the equipment competition. Since the specifications are the basis for selection of commercial

hardware, a potential conflict of interest exists. Company A should be excluded from the initial

follow-on information technology hardware acquisition.

(f) Company A receives a contract to define the detailed performance characteristics an agency will

require for purchasing rocket fuels. Company A has not developed the particular fuels. When the

definition contract is awarded, it is clear to both parties that the agency will use the performance

characteristics arrived at to choose competitively a contractor to develop or produce the fuels.

Company A may not be awarded this follow-on contract.
(g) Company A receives a contract to prepare a detailed plan for scientific and technical training of

an agency’s personnel. It suggests a curriculum that the agency endorses and incorporates in its

request for proposals to institutions to establish and conduct the training. Company A may not be

awarded a contract to conduct the training.

(h) Company A is selected to study the use of lasers in communications. The agency intends to ask

that firms doing research in the field make proprietary information available to Company A. The

contract must require Company A to-

(1) Enter into agreements with these firms to protect any proprietary information they provide; and

(2) Refrain from using the information in supplying lasers to the Government or for any purpose

other than that for which it was intended.

(i) An agency that regulates an industry wishes to develop a system for evaluating and processing

license applications. Contractor X helps develop the system and process the applications. Contractor

X should be prohibited from acting as a consultant to any of the applicants during its period of

performance and for a reasonable period thereafter.

Subpart 9.6 - Contractor Team Arrangements

9.601 Definition.

Contractor team arrangement, as used in this subpart, means an arrangement in which-

(1) Two or more companies form a partnership or joint venture to act as a potential prime

contractor; or

(2) A potential prime contractor agrees with one or more other companies to have them act as its

subcontractors under a specified Government contract or acquisition program.

9.602 General.

(a) Contractor team arrangements may be desirable from both a Government and industry

standpoint in order to enable the companies involved to-

(1) Complement each other’s unique capabilities; and

(2) Offer the Government the best combination of performance, cost, and delivery for the system or

product being acquired.

(b) Contractor team arrangements may be particularly appropriate in complex research and

development acquisitions, but may be used in other appropriate acquisitions, including production.

(c) The companies involved normally form a contractor team arrangement before submitting an

offer. However, they may enter into an arrangement later in the acquisition process, including after

contract award.
9.603 Policy.

The Government will recognize the integrity and validity of contractor team arrangements; provided,

the arrangements are identified and company relationships are fully disclosed in an offer or, for

arrangements entered into after submission of an offer, before the arrangement becomes effective.

The Government will not normally require or encourage the dissolution of contractor team

arrangements.

9.604 Limitations.

Nothing in this subpart authorizes contractor team arrangements in violation of antitrust statutes or

limits the Government’s rights to-

(a) Require consent to subcontracts (see subpart 44.2);

(b) Determine, on the basis of the stated contractor team arrangement, the responsibility of the

prime contractor (see subpart 9.1);

(c) Provide to the prime contractor data rights owned or controlled by the Government;

(d) Pursue its policies on competitive contracting, subcontracting, and component breakout after

initial production or at any other time; and

(e) Hold the prime contractor fully responsible for contract performance, regardless of any team

arrangement between the prime contractor and its subcontractors.

Subpart 9.7 - Defense Production Pools and Research and

Development Pools

9.701 Definition.

Pool, as used in this subpart, means a group of concerns (see 19.001 ) that have-

(1) Associated together in order to obtain and perform, jointly or in conjunction with each other,

defense production or research and development contracts;

(2) Entered into an agreement governing their organization, relationship, and procedures; and

(3) Obtained approval of the agreement by either-

(i) The Small Business Administration (SBA) under section 9 or 11 of the Small Business Act (15

U.S.C.638 or 640) (see 13 CFR125); or

(ii) A designated official under PartV of Executive Order10480, August 14,1953 (18 FR4939, August

20,1953) and section 708 of the Defense Production Act of1950 (50 U.S.C. App.2158).
9.702 Contracting with pools.

(a) Except as specified in this subpart, a pool shall be treated the same as any other prospective or

actual contractor.

(b) The contracting officer shall not award a contract to a pool unless the offer leading to the

contract is submitted by the pool in its own name or by an individual pool member expressly stating

that the offer is on behalf of the pool.

(c) Upon receipt of an offer submitted by a group representing that it is a pool, the contracting

officer shall verify its approved status with the SBA District Office Director or other approving

agency and document the contract file that the verification was made.

(d) Pools approved by the SBA under the Small Business Act are entitled to the preferences and

privileges accorded to small business concerns. Approval under the Defense Production Act does not

confer these preferences and privileges.

(e) Before awarding a contract to an unincorporated pool, the contracting officer shall require each

pool member participating in the contract to furnish a certified copy of a power of attorney

identifying the agent authorized to sign the offer or contract on that member’s behalf. The

contracting officer shall attach a copy of each power of attorney to each signed copy of the contract

retained by the Government.

9.703 Contracting with individual pool members.

(a) Pool members may submit individual offers, independent of the pool. However, the contracting

officer shall not consider an independent offer by a pool member if that pool member participates in

a competing offer submitted by the pool.

(b) If a pool member submits an individual offer, independent of the pool, the contracting officer

shall consider the pool agreement, along with other factors, in determining whether that pool

member is a responsible prospective contractor under subpart 9.1.