Subpart 209.1 - RESPONSIBLE

PROSPECTIVE CONTRACTORS

Parent topic: Part 209 - CONTRACTOR QUALIFICATIONS

209.101 Definitions.

“Entity controlled by a foreign government,” “foreign government,” and “proscribed information”

are defined in the provision at 252.209-7002 , Disclosure of Ownership or Control by a Foreign

Government.

209.104 Standards.

209.104-1 General standards.

(e) For cost-reimbursement or incentive type contracts, or contracts which provide for progress

payments based on costs or on a percentage or stage of completion, the prospective contractor’s

accounting system and related internal controls must provide reasonable assurance that—

(i) Applicable laws and regulations are complied with;

(ii) The accounting system and cost data are reliable;

(iii) Risk of misallocations and mischarges are minimized; and

(iv) Contract allocations and charges are consistent with invoice procedures.

(g)(i) Ownership or control by the government of a country that is a state sponsor of terrorism. See

225.771 .

(ii) Ownership or control by a foreign government when access to proscribed information is required

to perform the contract.

(A) Under 10 U.S.C. 4874(a), no DoD contract under a national security program may be awarded to

an entity controlled by a foreign government if that entity requires access to proscribed information

to perform the contract.

(B) Whenever the contracting officer has a question about application of the provision at

252.209-7002 , the contracting officer may seek advice from the Security Directorate, Office of the

Deputy Under Secretary of Defense, Human Intelligence, Counterintelligence, and Security.

(C) In accordance with 10 U.S.C. 4874(b)(1)(A), the Secretary of Defense may waive the prohibition

in paragraph (g)(ii)(A) of this subsection upon determining that the waiver is essential to the

national security interests of the United States. The Secretary has delegated authority to grant this

waiver to the Under Secretary of Defense for Intelligence. Waiver requests, prepared by the

requiring activity in coordination with the contracting officer, shall be processed through the

Principal Director, Defense Pricing and Contracting, Office of the Under Secretary of Defense
(Acquisition and Sustainment), and shall include a proposed national interest determination. The

proposed national interest determination, prepared by the requiring activity in coordination with the

contracting officer, shall include—

(1) Identification of the proposed awardee, with a synopsis of its foreign ownership (include

solicitation and other reference numbers to identify the action);

(2) General description of the acquisition and performance requirements;

(3) Identification of the national security interests involved and the ways in which award of the

contract helps advance those interests;

(4) A statement as to availability of another entity with the capacity, capability and technical

expertise to satisfy defense acquisition, technology base, or industrial base requirements; and

(5) A description of any alternate means available to satisfy the requirement, e.g., use of substitute

products or technology or alternate approaches to accomplish the program objectives.

(D) In accordance with 10 U.S.C. 2536(b)(1)(B), the Secretary of Defense may, in the case of a

contract awarded for environmental restoration, remediation, or waste management at a DoD

facility, waive the prohibition in paragraph (g)(ii)(A) of this subsection upon—

(1) Determining that—

(i) The waiver will advance the environmental restoration, remediation, or waste management

objectives of DoD and will not harm the national security interests of the United States; and

(ii) The entity to which the contract is awarded is controlled by a foreign government with which the

Secretary is authorized to exchange Restricted Data under section 144 c. of the Atomic Energy Act

of 1954 (42 U.S.C. 2164(c)); and

(2) Notifying Congress of the decision to grant the waiver. The contract may be awarded only after

the end of the 45-day period beginning on the date the notification is received by the appropriate

Congressional committees.

209.104-4 Subcontractor responsibility.

Generally, the Canadian Commercial Corporation's (CCC) proposal of a firm as its subcontractor is

sufficient basis for an affirmative determination of responsibility. However, when the CCC

determination of responsibility is not consistent with other information available to the contracting

officer, the contracting officer shall request from CCC and any other sources whatever additional

information is necessary to make the responsibility determination.

209.104-70 Solicitation provision.

Use the provision at 252.209-7002 , Disclosure of Ownership or Control by a Foreign Government, in

all solicitations, including those subject to the procedures in FAR part 13, when access to proscribed

information is necessary for contract performance. If the solicitation includes the provision at FAR

52.204-7, do not separately list the provision 252.209-7002 in the solicitation.
209.105 Procedures.

209.105-1 Obtaining information.

(1) For guidance on using the Exclusion section of the System for Award Management, see PGI

209.105-1 .

(2) A satisfactory performance record is a factor in determining contractor responsibility (see FAR

9.104-1(c)).

(i) One source of information relating to contractor performance is Contractor Performance

Assessment Reporting System (CPARS), available at https://ww.cpars.gov/.

(ii) Information relating to contract terminations for cause and for default is also available through

the Federal Awardee Performance and Integrity Information System (FAPIIS) module of CPARS,

available at https://sam.gov. (see FAR subpart 42.15). This termination information is just one

consideration in determining contractor responsibility.

(iii) Contracting officers shall consider the supplier risk assessment available in the Supplier

Performance Risk System at https://piee.eb.mil/ when determining responsibility. See 204.7603(c).

209.105-2 Determinations and documentation.

(a) The contracting officer shall submit a copy of a determination of nonresponsibility to the

appropriate debarring and suspending official listed in 209.403 .

209.105-2-70 Inclusion of determination of contractor fault in Federal Awardee

Performance and Integrity Information System (FAPIIS).

If the contractor or a subcontractor at any tier is not subject to the jurisdiction of the U.S. courts and

the DoD appointing official that requested a DoD investigation makes a final determination that a

contractor’s or subcontractor’s gross negligence or reckless disregard for the safety of civilian or

military personnel of the Government caused serious bodily injury or death of such personnel, the

contracting officer shall enter in FAPIIS the appropriate information regarding such determination

within three days of receiving notice of the determination, pursuant to section 834 of the National

Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383). Information posted in FAPIIS

regarding such determinations will be publicly available.

209.106 Preaward surveys.

When requesting a preaward survey, follow the procedures at PGI 209.106 .
209.170 Scope.

This section implements section 1062 of the National Defense Authorization Act for Fiscal Year 2021

(Pub. L. 116-283).

209.170-1 Definitions.

As used in this section—

‘‘Confucius Institute’’ means a cultural institute directly or indirectly funded by the government of

the People’s Republic of China.

‘‘Institution of higher education’’ has the meaning given in 20 U.S.C. 1002.

209.170-2 Restriction.

None of the funds authorized to be appropriated or otherwise made available for any fiscal year for

DoD may be used to contract with an institution of higher education that hosts a Confucius Institute,

other than amounts provided directly to students as educational assistance. Contracting officers

shall not enter into a contract with any institution of higher education that hosts a Confucius

Institute, unless a waiver has been granted.

209.170-3 Waiver of restriction.

The restriction in 209.170-2 can be waived by the Office of the Under Secretary of Defense

(Research and Engineering), without power of delegation, in accordance with the Confucius Institute

Waiver Program guidance. See PGI 209.170-4.

209.170-4 Solicitation provision.

Use the provision at 252.209-7011, Representation for Restriction on the Use of Certain Institutions

of Higher Education, in solicitations, including solicitations using FAR part 12 procedures for the

acquisition of commercial products and commercial services, for acquisitions to an institution of

higher education.