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.

Parent topic: 9.104 Standards.