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Home Source documents 48 CFR Ch. 1 (10-1-25 Edition) — Part 9 — Contractor Qualifications

48 CFR Ch. 1 (10-1-25 Edition) — Part 9 — Contractor Qualifications

Summary

This is Part 9 of the Federal Acquisition Regulation, 48 CFR Ch. 1 in the 10-1-25 Edition, which sets the rules on contractor qualifications. Subpart 9.1 covers responsible prospective contractors and sets general standards of responsibility, under which a prospective contractor must, among other things, have adequate financial resources to perform the contract or the ability to obtain them. Subpart 9.2 covers qualification requirements, and Subpart 9.3 covers first article testing and approval. Subpart 9.4 covers debarment, suspension and ineligibility, Subpart 9.5 covers organizational and consultant conflicts of interest, Subpart 9.6 covers contractor team arrangements, and Subpart 9.7 covers defense production pools and research and development pools.

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Full text

                                                                     Pt. 9                                                                  48 CFR Ch. 1 (10–1–25 Edition)

                                                                     a fixed-price contract is contemplated,                    9.109–2 Prohibition.
                                                                     but excluding—                                             9.109–3 Exception.
                                                                       (1) The clause at 52.211–16, Variation                   9.109–4 Certification by the offeror.
                                                                                                                                9.109–5 Solicitation provision.
                                                                     in Quantity;                                               9.110 Reserve Officer Training Corps and
                                                                       (2) The clause at 52.232–1, Payments;                        military recruiting on campus.
                                                                       (3) The clause at 52.222–20, Contracts                   9.110–1 Definitions.
                                                                     for Materials, Supplies, Articles, and                     9.110–2 Authority.
                                                                     Equipment; and                                             9.110–3 Policy.
                                                                       (4) The clause at 52.246–16, Responsi-                   9.110–4 Procedures.
                                                                     bility for Supplies.                                       9.110–5 Contract clause.

                                                                     [48 FR 42129, Sept. 19, 1983, as amended at 51              Subpart 9.2—Qualifications Requirements
                                                                     FR 19714, May 30, 1986; 60 FR 48237, Sept. 18,
                                                                     1995; 68 FR 28080, May 22, 2003; 79 FR 24199,              9.200 Scope of subpart.
                                                                     Apr. 29, 2014; 84 FR 19844, May 6, 2019; 85 FR             9.201 Definitions.
                                                                     27090, May 6, 2020]                                        9.202 Policy.
                                                                                                                                9.203 QPL’s, QML’s, and QBL’s.
                                                                                                                                9.204 Responsibilities for establishment of a
                                                                                 PART 9—CONTRACTOR                                  qualification requirement.
                                                                                   QUALIFICATIONS                               9.205 Opportunity for qualification before
                                                                                                                                    award.
                                                                     Sec.                                                       9.206 Acquisitions subject to qualification
                                                                     9.000   Scope of part.                                         requirements.
                                                                                                                                9.206–1 General.
                                                                         Subpart 9.1—Responsible Prospective                    9.206–2 Contract clause.
                                                                                     Contractors                                9.206–3 Competition.
                                                                                                                                9.207 Changes in status regarding qualifica-
                                                                     9.100 Scope of subpart.                                        tion requirements.
                                                                     9.101 Definitions.
                                                                     9.102 Applicability.                                          Subpart 9.3—First Article Testing and
                                                                     9.103 Policy.                                                              Approval
                                                                     9.104 Standards.
                                                                     9.104–1 General standards.                                 9.301 Definition.
                                                                     9.104–2 Special standards.                                 9.302 General.
                                                                     9.104–3 Application of standards.                          9.303 Use.
                                                                     9.104–4 Subcontractor responsibility.                      9.304 Exceptions.
                                                                     9.104–5 Representation and certifications re-              9.305 Risk.
                                                                         garding responsibility matters.                        9.306 Solicitation requirements.
                                                                     9.104–6 Federal Awardee Performance and                    9.307 Government administration proce-
                                                                         Integrity Information System.                              dures.
                                                                     9.104–7 Solicitation provisions and contract               9.308 Contract clauses.
                                                                         clauses.                                               9.308–1 Testing performed by the con-
                                                                     9.105 Procedures.                                              tractor.
                                                                     9.105–1 Obtaining information.                             9.308–2 Testing performed by the Govern-
                                                                     9.105–2 Determinations and documentation.                      ment.
                                                                     9.105–3 Disclosure of preaward information.
                                                                     9.106 Preaward surveys.                                    Subpart 9.4—Debarment, Suspension, and
                                                                     9.106–1 Conditions for preaward surveys.                                 Ineligibility
                                                                     9.106–2 Requests for preaward surveys.
                                                                     9.106–3 Interagency preaward surveys.                      9.400 Scope of subpart.
                                                                     9.106–4 Reports.                                           9.401 Applicability.
                                                                     9.107 Surveys of nonprofit agencies partici-               9.402 Policy.
                                                                         pating in the AbilityOne Program.                      9.403 Definitions.
                                                                     9.108 Prohibition on contracting with in-                  9.404 Exclusions in the System for Award
                                                                         verted domestic corporations.                              Management.
                                                                     9.108–1 Definitions.                                       9.405 Effect of listing.
                                                                     9.108–2 Prohibition.                                       9.405–1 Continuation of current contracts.
                                                                     9.108–3 Representation by the offeror.                     9.405–2 Restrictions on subcontracting.
                                                                     9.108–4 Waiver.                                            9.406 Debarment.
                                                                     9.108–5 Solicitation provision and contract                9.406–1 General.
                                                                         clause.                                                9.406–2 Causes for debarment.
                                                                     9.109 Prohibition on contracting with an en-               9.406–3 Procedures.




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                                                                         tity involved in activities that violate               9.406–4 Period of debarment.
                                                                         arms control treaties or agreements with               9.406–5 Scope of debarment.
                                                                         the United States.                                     9.407 Suspension.
                                                                     9.109–1 Authority.                                         9.407–1 General.

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                                                                     Federal Acquisition Regulation                                                                        9.102
                                                                     9.407–2 Causes for suspension.                                    Subpart 9.1—Responsible
                                                                     9.407–3 Procedures.
                                                                     9.407–4 Period of suspension.
                                                                                                                                        Prospective Contractors
                                                                     9.407–5 Scope of suspension.
                                                                                                                                 9.100 Scope of subpart.
                                                                     9.408 [Reserved]
                                                                     9.409 Contract clause.                                        This subpart prescribes policies,
                                                                                                                                 standards, and procedures for deter-
                                                                             Subpart 9.5—Organizational and                      mining whether prospective contrac-
                                                                              Consultant Conflicts of Interest                   tors and subcontractors are respon-
                                                                                                                                 sible.
                                                                     9.500 Scope of subpart.
                                                                     9.501 Definition.                                           9.101 Definitions.
                                                                     9.502 Applicability.
                                                                     9.503 Waiver.                                                 Administrative proceeding means a
                                                                     9.504 Contracting officer responsibilities.                 non-judicial process that is adjudica-
                                                                     9.505 General rules.                                        tory in nature in order to make a de-
                                                                     9.505–1 Providing systems engineering and                   termination of fault or liability (e.g.,
                                                                         technical direction.                                    Securities and Exchange Commission
                                                                     9.505–2 Preparing specifications or work                    Administrative Proceedings, Civilian
                                                                         statements.                                             Board of Contract Appeals Proceedings,
                                                                     9.505–3 Providing evaluation services.
                                                                                                                                 and Armed Services Board of Contract
                                                                     9.505–4 Obtaining access to proprietary in-
                                                                         formation.                                              Appeals Proceedings). This includes ad-
                                                                     9.506 Procedures.                                           ministrative proceedings at the Fed-
                                                                     9.507 Solicitation provisions and contract                  eral and state level but only in connec-
                                                                         clause.                                                 tions with performance of a Federal
                                                                     9.507–1 Solicitation provisions.                            contract or grant. It does not include
                                                                     9.507–2 Contract clause.                                    agency actions such as contract audits,
                                                                     9.508 Examples.                                             site visits, corrective plans, or inspec-
                                                                                                                                 tion of deliverables.
                                                                             Subpart 9.6—Contractor Team                           Surveying activity, as used in this sub-
                                                                                     Arrangements                                part, means the cognizant contract ad-
                                                                     9.601   Definition.                                         ministration office or, if there is no
                                                                     9.602   General.                                            such office, another organization des-
                                                                     9.603   Policy.                                             ignated by the agency to conduct
                                                                     9.604   Limitations.                                        preaward surveys.

                                                                        Subpart 9.7—Defense Production Pools                     [48 FR 42142, Sept. 19, 1983, as amended at 66
                                                                                                                                 FR 2128, Jan. 10, 2001; 75 FR 14065, Mar. 23,
                                                                        and Research and Development Pools                       2010]
                                                                     9.701 Definition.
                                                                     9.702 Contracting with pools.                               9.102 Applicability.
                                                                     9.703 Contracting with individual pool mem-                   (a) This subpart applies to all pro-
                                                                         bers.                                                   posed contracts with any prospective
                                                                       AUTHORITY: 41 U.S.C. 1121(b); 40 U.S.C.                   contractor that is located—
                                                                     121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chap-               (1) In the United States or its out-
                                                                     ter 137 legacy provisions (see 10 U.S.C. 3016);             lying areas; or
                                                                     and 51 U.S.C. 20113.                                          (2) Elsewhere, unless application of
                                                                       SOURCE: 48 FR 42142, Sept. 19, 1983, unless               the subpart would be inconsistent with
                                                                     otherwise noted.                                            the laws or customs where the con-
                                                                                                                                 tractor is located.
                                                                     9.000       Scope of part.                                    (b) This subpart does not apply to
                                                                       This part prescribes policies, stand-                     proposed contracts with—
                                                                     ards, and procedures pertaining to pro-                       (1) Foreign, State, or local govern-
                                                                     spective contractors’ responsibility;                       ments;
                                                                     debarment, suspension, and ineligi-                           (2) Other U.S. Government agencies
                                                                     bility; qualified products; first article                   or their instrumentalities; or
                                                                     testing and approval; contractor team                         (3) Agencies for people who are blind




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                                                                     arrangements; defense production pools                      or severely disabled (see subpart 8.7).
                                                                     and research and development pools;                         [48 FR 42142, Sept. 19, 1983, as amended at 68
                                                                     and organizational conflicts of inter-                      FR 28080, May 22, 2003; 79 FR 24199, Apr. 29,
                                                                     est.                                                        2014; 84 FR 19844, May 6, 2019]

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                                                                     9.103                                                                  48 CFR Ch. 1 (10–1–25 Edition)

                                                                     9.103 Policy.                                              evant performance history, except as
                                                                       (a) Purchases shall be made from,                        provided in 9.104–2;
                                                                     and contracts shall be awarded to, re-                       (d) Have a satisfactory record of in-
                                                                     sponsible prospective contractors only.                    tegrity and business ethics (for exam-
                                                                       (b) No purchase or award shall be                        ple, see subpart 42.15);
                                                                     made unless the contracting officer                          (e) Have the necessary organization,
                                                                     makes an affirmative determination of                      experience, accounting and operational
                                                                     responsibility. In the absence of infor-                   controls, and technical skills, or the
                                                                     mation clearly indicating that the pro-                    ability to obtain them (including, as
                                                                     spective contractor is responsible, the                    appropriate, such elements as produc-
                                                                     contracting officer shall make a deter-                    tion control procedures, property con-
                                                                     mination of nonresponsibility. If the                      trol systems, quality assurance meas-
                                                                     prospective contractor is a small busi-                    ures, and safety programs applicable to
                                                                     ness concern, the contracting officer                      materials to be produced or services to
                                                                     shall comply with subpart 19.6, Certifi-                   be performed by the prospective con-
                                                                     cates of Competency and Determina-
                                                                                                                                tractor and subcontractors) (see 9.104–
                                                                     tions of Responsibility. (If Section 8(a)
                                                                                                                                3(a));
                                                                     of the Small Business Act (15 U.S.C.
                                                                     637) applies, see subpart 19.8.)                             (f) Have the necessary production,
                                                                       (c) The award of a contract to a sup-                    construction, and technical equipment
                                                                     plier based on lowest evaluated price                      and facilities, or the ability to obtain
                                                                     alone can be false economy if there is                     them (see 9.104–3(a)); and
                                                                     subsequent default, late deliveries, or                      (g) Be otherwise qualified and eligi-
                                                                     other unsatisfactory performance re-                       ble to receive an award under applica-
                                                                     sulting in additional contractual or ad-                   ble laws and regulations (see also in-
                                                                     ministrative costs. While it is impor-                     verted domestic corporation prohibi-
                                                                     tant that Government purchases be                          tion at 9.108).
                                                                     made at the lowest price, this does not
                                                                                                                                [48 FR 42142, Sept. 19, 1983, as amended at 51
                                                                     require an award to a supplier solely
                                                                                                                                FR 27119, July 29, 1986; 56 FR 55374, Oct. 25,
                                                                     because that supplier submits the low-                     1991; 60 FR 16718, Mar. 31, 1995; 61 FR 67410,
                                                                     est offer. A prospective contractor                        Dec. 20, 1996; 65 FR 80264, Dec. 20, 2000; 66 FR
                                                                     must affirmatively demonstrate its re-                     17756, Apr. 3, 2001; 66 FR 66986, 66989, Dec. 27,
                                                                     sponsibility, including, when nec-                         2001; 73 FR 67091, Nov. 12, 2008; 74 FR 31563,
                                                                     essary, the responsibility of its pro-                     July 1, 2009; 76 FR 31413, May 31, 2011; 84 FR
                                                                     posed subcontractors.                                      19844, May 6, 2019]
                                                                     [48 FR 42142, Sept. 19, 1983, as amended at 61
                                                                     FR 67410, Dec. 20, 1996; 62 FR 44819, Aug. 22,             9.104–2     Special standards.
                                                                     1997; 62 FR 48921, Sept. 17, 1997; 65 FR 80264,              (a) When it is necessary for a par-
                                                                     Dec. 20, 2000; 66 FR 17755, Apr. 3, 2001; 66 FR            ticular acquisition or class of acquisi-
                                                                     66986, 66989, Dec. 27, 2001]
                                                                                                                                tions, the contracting officer shall de-
                                                                     9.104       Standards.                                     velop, with the assistance of appro-
                                                                                                                                priate specialists, special standards of
                                                                     9.104–1 General standards.                                 responsibility. Special standards may
                                                                       To be determined responsible, a pro-                     be particularly desirable when experi-
                                                                     spective contractor must—                                  ence has demonstrated that unusual
                                                                       (a) Have adequate financial resources                    expertise or specialized facilities are
                                                                     to perform the contract, or the ability                    needed for adequate contract perform-
                                                                     to obtain them (see 9.104–3(a));                           ance. The special standards shall be set
                                                                       (b) Be able to comply with the re-                       forth in the solicitation (and so identi-
                                                                     quired or proposed delivery or perform-                    fied) and shall apply to all offerors.
                                                                     ance schedule, taking into consider-                         (b) Contracting officers shall award
                                                                     ation all existing commercial and gov-                     contracts for subsistence only to those
                                                                     ernmental business commitments;                            prospective contractors that meet the
                                                                       (c) Have a satisfactory performance                      general standards in 9.104–1 and are ap-




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                                                                     record (see 9.104-3(b) and subpart 42.15).                 proved in accordance with agency sani-
                                                                     A prospective contractor shall not be
                                                                                                                                tation standards and procedures.
                                                                     determined responsible or nonrespon-
                                                                     sible solely on the basis of a lack of rel-

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                                                                     Federal Acquisition Regulation                                                                       9.104–3

                                                                     9.104–3 Application of standards.                          consider the affiliate’s past perform-
                                                                       (a) Ability to obtain resources. Except                  ance and integrity when they may ad-
                                                                     to the extent that a prospective con-                      versely affect the prospective contrac-
                                                                     tractor has sufficient resources or pro-                   tor’s responsibility.
                                                                     poses to perform the contract by sub-                        (2) Joint ventures. For a prospective
                                                                     contracting, the contracting officer                       contractor that is a joint venture, the
                                                                     shall require acceptable evidence of the                   contracting officer shall consider the
                                                                     prospective contractor’s ability to ob-                    past performance of the joint venture.
                                                                     tain required resources (see 9.104–1(a),                   If the joint venture does not dem-
                                                                     (e), and (f)). Acceptable evidence nor-                    onstrate past performance for award,
                                                                     mally consists of a commitment or ex-                      the contracting officer shall consider
                                                                     plicit arrangement, that will be in ex-                    the past performance of each party to
                                                                     istence at the time of contract award,                     the joint venture.
                                                                     to rent, purchase, or otherwise acquire                      (d)(1) Small business concerns. Upon
                                                                     the needed facilities, equipment, other                    making a determination of nonrespon-
                                                                     resources, or personnel. Consideration
                                                                                                                                sibility with regard to a small business
                                                                     of a prime contractor’s compliance
                                                                                                                                concern, the contracting officer shall
                                                                     with limitations on subcontracting
                                                                     shall take into account the time period                    refer the matter to the Small Business
                                                                     covered by the contract base period or                     Administration, which will decide
                                                                     quantities plus option periods or quan-                    whether to issue a Certificate of Com-
                                                                     tities, if such options are considered                     petency (see subpart 19.6).
                                                                     when evaluating offers for award.                            (2) Limitations on subcontracting. A
                                                                       (b) Satisfactory performance record. A                   small business that is unable to comply
                                                                     prospective contractor that is or re-                      with the limitations on subcontracting
                                                                     cently has been seriously deficient in                     may be considered nonresponsible (see
                                                                     contract performance shall be pre-                         52.219–3, Notice of HUBZone Set-Aside
                                                                     sumed to be nonresponsible, unless the                     or Sole-Source Award; 52.219–4, Notice
                                                                     contracting officer determines that the                    of Price Evaluation Preference for
                                                                     circumstances were properly beyond                         HUBZone Small Business Concerns;
                                                                     the contractor’s control, or that the                      52.219–14, Limitations on Subcon-
                                                                     contractor has taken appropriate cor-                      tracting; 52.219–27, Notice of Set-Aside
                                                                     rective action. Past failure to apply                      for, or Sole-Source Award to, Service-
                                                                     sufficient tenacity and perseverance to
                                                                                                                                Disabled Veteran-Owned Small Busi-
                                                                     perform acceptably is strong evidence
                                                                     of nonresponsibility. Failure to meet                      ness (SDVOSB) Concerns Eligible
                                                                     the quality requirements of the con-                       Under the SDVOSB Program; 52.219–29,
                                                                     tract is a significant factor to consider                  Notice of Set-Aside for, or Sole-Source
                                                                     in determining satisfactory perform-                       Award to, Economically Disadvantaged
                                                                     ance. The contracting officer shall con-                   Women-Owned Small Business Con-
                                                                     sider the number of contracts involved                     cerns; and 52.219–30, Notice of Set-Aside
                                                                     and the extent of deficient performance                    for, or Sole-Source Award to, Women-
                                                                     in each contract when making this de-                      Owned Small Business Concerns Eligi-
                                                                     termination. If the pending contract                       ble Under the Women-Owned Small
                                                                     requires a subcontracting plan pursu-                      Business Program). A small business
                                                                     ant to Subpart 19.7, The Small Busi-                       that has not agreed to comply with the
                                                                     ness Subcontracting Program, the con-                      limitations on subcontracting may be
                                                                     tracting officer shall also consider the                   considered nonresponsive.
                                                                     prospective contractor’s compliance
                                                                     with subcontracting plans under recent                     [48 FR 42142, Sept. 19, 1983, as amended at 53
                                                                                                                                FR 27463, July 20, 1988; 53 FR 34226, Sept. 2,
                                                                     contracts.
                                                                                                                                1988; 56 FR 55378, Oct. 25, 1991; 60 FR 48260,
                                                                       (c)(1) Affiliated concerns. Affiliated
                                                                                                                                Sept. 18, 1995; 61 FR 67410, Dec. 20, 1996; 62 FR
                                                                     concerns (see Concern in 19.001 and                        44820, Aug. 22, 1997; 63 FR 70267, Dec. 18, 1998;
                                                                     Small business concern in 2.101) are nor-                  65 FR 80264, Dec. 20, 2000; 66 FR 66989, Dec. 27,
                                                                     mally considered separate entities in                      2001; 67 FR 13068, Mar. 20, 2002; 75 FR 14065,




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                                                                     determining whether the concern that                       Mar. 23, 2010; 85 FR 11756, Feb. 27, 2020; 85 FR
                                                                     is to perform the contract meets the                       67616, Oct. 23, 2020; 87 FR 58223, Sept. 23, 2022;
                                                                     applicable standards for responsibility.                   89 FR 13956, Feb. 23, 2024]
                                                                     However, the contracting officer shall

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                                                                     9.104–4                                                                48 CFR Ch. 1 (10–1–25 Edition)

                                                                     9.104–4 Subcontractor responsibility.                      Conviction under any Federal Law, im-
                                                                       (a) Generally, prospective prime con-                    plements sections 744 and 745 of Divi-
                                                                     tractors are responsible for deter-                        sion E of the Consolidated and Further
                                                                     mining the responsibility of their pro-                    Continuing Appropriations Act, 2015
                                                                     spective subcontractors (but see 9.405                     (Pub. L. 113–235) (and similar provisions
                                                                     and 9.405–2 regarding debarred, ineli-                     in subsequent appropriations acts).
                                                                     gible, or suspended firms). Determina-                     When an offeror provides an affirma-
                                                                     tions of prospective subcontractor re-                     tive response in paragraph (b)(1) or (2)
                                                                     sponsibility may affect the Govern-                        of the provision at 52.209–11 or para-
                                                                     ment’s determination of the prospec-                       graph (q)(2)(i) or (ii) of provision 52.212–
                                                                     tive prime contractor’s responsibility.                    3, the contracting officer shall—
                                                                     A prospective contractor may be re-                           (1) Promptly, upon receipt of offers,
                                                                     quired to provide written evidence of a                    request such additional information
                                                                     proposed     subcontractor’s    responsi-                  from the offeror as the offeror deems
                                                                     bility.                                                    necessary in order to demonstrate the
                                                                       (b) When it is in the Government’s                       offeror’s responsibility to the con-
                                                                     interest to do so, the contracting offi-                   tracting officer (but see 9.405);
                                                                     cer may directly determine a prospec-                         (2) Notify, in accordance with agency
                                                                     tive    subcontractor’s    responsibility                  procedures (see 9.406–3(a) and 9.407–
                                                                     (e.g., when the prospective contract in-                   3(a)), the agency official responsible for
                                                                     volves medical supplies, urgent re-                        initiating debarment or suspension ac-
                                                                     quirements, or substantial subcon-                         tion; and
                                                                     tracting). In this case, the same stand-                      (3) Not award to the corporation un-
                                                                     ards used to determine a prime con-                        less an agency suspending and debar-
                                                                     tractor’s responsibility shall be used by                  ring official has considered suspension
                                                                     the Government to determine subcon-                        or debarment of the corporation and
                                                                     tractor responsibility.                                    made a determination that suspension
                                                                                                                                or debarment is not necessary to pro-
                                                                     [48 FR 42142, Sept. 19, 1983, as amended at 81
                                                                     FR 58638, Aug. 25, 2016; 81 FR 91638, Dec. 16,             tect the interests of the Government.
                                                                     2016; 82 FR 51529, Nov. 6, 2017]                              (c) If the provision at 52.209–12, Cer-
                                                                                                                                tification Regarding Tax Matters, is
                                                                     9.104–5 Representation and certifi-                        applicable (see 9.104–7(e)), then the con-
                                                                         cations regarding responsibility                       tracting officer shall not award any
                                                                         matters.                                               contract in an amount greater than $7
                                                                       (a) When an offeror provides an af-                      million, unless the offeror affirma-
                                                                     firmative response in paragraph (a)(1)                     tively certified in its offer, as required
                                                                     of the provision at 52.209–5, Certifi-                     by paragraph (b)(1), (2), and (3) of the
                                                                     cation Regarding Responsibility Mat-                       provision.
                                                                     ters, or paragraph (h) of provision                           (d) Offerors who do not furnish the
                                                                     52.212–3, the contracting officer shall—                   representation or certifications or such
                                                                       (1) Promptly, upon receipt of offers,                    information as may be requested by
                                                                     request such additional information                        the contracting officer shall be given
                                                                     from the offeror as the offeror deems                      an opportunity to remedy the defi-
                                                                     necessary in order to demonstrate the                      ciency. Failure to furnish the represen-
                                                                     offeror’s responsibility to the con-                       tation or certifications or such infor-
                                                                     tracting officer (but see 9.405); and                      mation may render the offeror non-
                                                                       (2) Notify, prior to proceeding with                     responsible.
                                                                     award, in accordance with agency pro-
                                                                                                                                [73 FR 21798, Apr. 22, 2008, as amended at 80
                                                                     cedures (see 9.406–3(a) and 9.407–3(a)),                   FR 38296, July 2, 2015; 80 FR 75906, Dec. 4,
                                                                     the agency official responsible for ini-                   2015; 81 FR 58638, Aug. 25, 2016; 81 FR 91638,
                                                                     tiating debarment or suspension ac-                        Dec. 16, 2016; 82 FR 51529, Nov. 6, 2017; 85 FR
                                                                     tion, where an offeror indicates the ex-                   40067, July 2, 2020; 85 FR 62488, Oct. 2, 2020; 90
                                                                     istence of an indictment, charge, con-                     FR 511, Jan. 3, 2025; 90 FR 41877, Aug. 27, 2025]
                                                                     viction, or civil judgment, or Federal
                                                                     tax delinquency in an amount that ex-                      9.104–6 Federal Awardee Performance
                                                                                                                                    and Integrity Information System.




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                                                                     ceeds $15,000.
                                                                       (b) The provision at 52.209–11, Rep-                       (a)(1) Before awarding a contract in
                                                                     resentation by Corporations Regarding                      excess of the simplified acquisition
                                                                     Delinquent Tax Liability or a Felony                       threshold, the contracting officer shall

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                                                                     Federal Acquisition Regulation                                                                       9.104–6

                                                                     review the performance and integrity                       record of the prime contractor (see
                                                                     information available in the Federal                       42.1503(h)(1)(v)). The prime contractor
                                                                     Awardee Performance and Integrity In-                      has the opportunity to post in FAPIIS
                                                                     formation System (FAPIIS), (available                      any mitigating factors. The con-
                                                                     at https://www.cpars.gov , including                       tracting officer shall consider any
                                                                     FAPIIS information from the System                         mitigating factors posted in FAPIIS by
                                                                     for Award Management (SAM) Exclu-                          the prime contractor, such as degree of
                                                                     sions and the Contractor Performance                       compliance by the prime contractor
                                                                     Assessment        Reporting        System                  with the terms of FAR clause 52.222–50.
                                                                     (CPARS)                                                      (c) If the contracting officer obtains
                                                                       (2) In accordance with 41 U.S.C.
                                                                                                                                relevant information from FAPIIS re-
                                                                     2313(d)(3), FAPIIS also identifies—
                                                                                                                                garding criminal, civil, or administra-
                                                                       (i) An affiliate that is an immediate
                                                                     owner or subsidiary of the offeror, if                     tive proceedings in connection with the
                                                                     any (see 52.204–17, Ownership or Control                   award or performance of a Government
                                                                     of Offeror); and                                           contract; terminations for default or
                                                                       (ii) All predecessors of the offeror                     cause; determinations of nonresponsi-
                                                                     that held a Federal contract or grant                      bility because the contractor does not
                                                                     within the last three years (see 52.204–                   have a satisfactory performance record
                                                                     20, Predecessor of Offeror).                               or a satisfactory record of integrity
                                                                       (b)(1) When making a responsibility                      and business ethics; or comparable in-
                                                                     determination, the contracting officer                     formation relating to a grant, the con-
                                                                     shall consider all the information                         tracting officer shall, unless the con-
                                                                     available through FAPIIS with regard                       tractor has already been debarred, sus-
                                                                     to the offeror and any immediate                           pended, or has agreed to a voluntary
                                                                     owner, predecessor, or subsidiary iden-                    exclusion—
                                                                     tified for that offeror in FAPIIS, as                        (1) Promptly request such additional
                                                                     well as other past performance infor-                      information from the offeror as the of-
                                                                     mation on the offeror (see subpart                         feror deems necessary in order to dem-
                                                                     42.15).                                                    onstrate the offeror’s responsibility to
                                                                       (2) For evaluation of information                        the contracting officer (but see 9.405);
                                                                     available through FAPIIS relating to                       and
                                                                     an affiliate of the offeror, see 9.104–3(c).
                                                                                                                                  (2) Notify, prior to proceeding with
                                                                       (3) For source selection evaluations
                                                                     of past performance, see 15.305(a)(2).                     award,in accordance with agency pro-
                                                                     Contracting officers shall use sound                       cedures (see 9.406–3(a) and 9.407–3(a)),
                                                                     judgment in determining the weight                         the agency official responsible for ini-
                                                                     and relevance of the information con-                      tiating debarment or suspension ac-
                                                                     tained in FAPIIS and how it relates to                     tion, if the information appears appro-
                                                                     the present acquisition.                                   priate for the official’s consideration.
                                                                       (4) Since FAPIIS may contain infor-                        (d) The contracting officer shall doc-
                                                                     mation on any of the offeror’s previous                    ument the contract file for each con-
                                                                     contracts and information covering a 5-                    tract in excess of the simplified acqui-
                                                                     year period, some of that information                      sition threshold to indicate how the in-
                                                                     may not be relevant to a determination                     formation in FAPIIS was considered in
                                                                     of present responsibility, e.g., a prior                   any responsibility determination, as
                                                                     administrative action such as debar-                       well as the action that was taken as a
                                                                     ment, suspension, voluntary exclusion,                     result of the information. A con-
                                                                     or administrative agreement, that has                      tracting officer who makes a non-
                                                                     expired or otherwise been resolved, or                     responsibility determination is re-
                                                                     information relating to contracts for                      quired to document that information
                                                                     completely different products or serv-                     in FAPIIS in accordance with 9.105–2
                                                                     ices.                                                      (b)(2).
                                                                       (5) Because FAPIIS is a database that
                                                                     provides information about prime con-                      [75 FR 14065, Mar. 23, 2010, as amended at 80




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     tractors, the contracting officer posts                    FR 4986, Jan. 29, 2015; 81 FR 11990, Mar. 7,
                                                                     information required to be posted                          2016; 81 FR 58638, Aug. 25, 2016; 81 FR 91638,
                                                                     about a subcontractor, such as traf-                       Dec. 16, 2016; 82 FR 51530, Nov. 6, 2017; 84 FR
                                                                     ficking in persons violations, to the                      47865, Sept. 10, 2019; 90 FR 511, Jan. 3, 2025]


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                                                                     9.104–7                                                                48 CFR Ch. 1 (10–1–25 Edition)

                                                                     9.104–7 Solicitation            provisions       and       United States Trade Representative,
                                                                         contract clauses.                                      and the State Justice Institute.
                                                                       (a) The contracting officer shall in-                    [73 FR 21798, Apr. 22, 2008. Redesignated and
                                                                     sert the provision at 52.209–5, Certifi-                   amended at 75 FR 14065, Mar. 23, 2010;77 FR
                                                                     cation Regarding Responsibility Mat-                       201, Jan. 3, 2012; 80 FR 38296, July 2, 2015; 80
                                                                     ters, in solicitations where the con-                      FR 75906, Dec. 4, 2015; 84 FR 19844, May 6,
                                                                                                                                2019; 85 FR 62488, Oct. 2, 2020; 90 FR 41877,
                                                                     tract value is expected to exceed the                      Aug. 27, 2025]
                                                                     simplified acquisition threshold.
                                                                       (b) The contracting officer shall in-                    9.105   Procedures.
                                                                     sert the provision at 52.209–7, Informa-
                                                                     tion Regarding Responsibility Matters,                     9.105–1     Obtaining information.
                                                                     in solicitations where the resultant                         (a) Before making a determination of
                                                                     contract value is expected to exceed                       responsibility, the contracting officer
                                                                     $750,000.                                                  shall possess or obtain information suf-
                                                                       (c) The contracting officer shall in-                    ficient to be satisfied that a prospec-
                                                                     sert the clause at 52.209–9, Updates of                    tive contractor currently meets the ap-
                                                                     Publicly Available Information Re-                         plicable standards in 9.104.
                                                                     garding Responsibility Matters—                              (b)(1) Generally, the contracting offi-
                                                                       (1) In solicitations where the result-                   cer shall obtain information regarding
                                                                     ant contract value is expected to ex-                      the responsibility of prospective con-
                                                                     ceed $750,000; and                                         tractors,       including     requesting
                                                                       (2) In contracts in which the offeror                    preaward surveys when necessary (see
                                                                     checked ‘‘has’’ in paragraph (b) of the                    9.106), promptly after a bid opening or
                                                                     provision at 52.209–7.                                     receipt of offers. However, in nego-
                                                                       (d) The contracting officer shall in-                    tiated contracting, especially when re-
                                                                     sert the provision 52.209–11, Represen-                    search and development is involved,
                                                                     tation by Corporations Regarding De-                       the contracting officer may obtain this
                                                                     linquent Tax Liability or a Felony                         information before issuing the request
                                                                                                                                for proposals. Requests for information
                                                                     Conviction under any Federal Law, in
                                                                                                                                shall ordinarily be limited to informa-
                                                                     all solicitations.
                                                                                                                                tion concerning—
                                                                       (e) For agencies receiving funds sub-
                                                                                                                                  (i) The low bidder; or
                                                                     ject to section 523 of Division B of the
                                                                                                                                  (ii) Those offerors in range for award.
                                                                     Consolidated and Further Continuing
                                                                                                                                  (2) Preaward surveys shall be man-
                                                                     Appropriations Act, 2015 (Pub. L. 113–
                                                                                                                                aged and conducted by the surveying
                                                                     235) and similar provisions in subse-
                                                                                                                                activity.
                                                                     quent appropriations acts, the con-
                                                                                                                                  (i) If the surveying activity is a con-
                                                                     tracting officer shall insert the provi-
                                                                                                                                tract administration office—
                                                                     sion 52.209–12, Certification Regarding
                                                                                                                                  (A) That office shall advise the con-
                                                                     Tax Matters, in solicitations for which
                                                                                                                                tracting officer on prospective contrac-
                                                                     the resultant contract (including op-
                                                                                                                                tors’ financial competence and credit
                                                                     tions) may have a value greater than $7                    needs; and
                                                                     million. Division B of the Consolidated
                                                                                                                                  (B) The administrative contracting
                                                                     and Continuing Further Appropriations                      officer shall obtain from the auditor
                                                                     Act, 2015 appropriates funds for the fol-                  any information required concerning
                                                                     lowing agencies: the Department of                         the adequacy of prospective contrac-
                                                                     Commerce, the Department of Justice,                       tors’ accounting systems and these sys-
                                                                     the National Aeronautics and Space                         tems’ suitability for use in admin-
                                                                     Administration, the Office of Science                      istering the proposed type of contract.
                                                                     and Technology Policy, the National                          (ii) If the surveying activity is not a
                                                                     Science Foundation, the Commission                         contract administration office, the
                                                                     on Civil Rights, the Equal Employment                      contracting officer shall obtain from
                                                                     Opportunity Commission, the U.S.                           the auditor any information required




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     International Trade Commission, the                        concerning prospective contractors’ fi-
                                                                     Legal Services Corporation, the Marine                     nancial competence and credit needs,
                                                                     Mammal Commission, the Office of the                       the adequacy of their accounting sys-
                                                                                                                                tems, and these systems’ suitability for

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                                                                     Federal Acquisition Regulation                                                                       9.105–2

                                                                     use in administering the proposed type                     promptly exchange relevant informa-
                                                                     of contract.                                               tion.
                                                                       (3) Information on financial resources                   [48 FR 42142, Sept. 19, 1983, as amended at 51
                                                                     and performance capability shall be ob-                    FR 27119, July 29, 1986; 52 FR 9038, Mar. 20,
                                                                     tained or updated on as current a basis                    1987; 54 FR 19813, May 8, 1989; 60 FR 16718,
                                                                     as is feasible up to the date of award.                    Mar. 31, 1995; 60 FR 33065, June 26, 1995; 61 FR
                                                                       (c) In making the determination of                       39201, July 26, 1996; 69 FR 76349, Dec. 20, 2004;
                                                                                                                                73 FR 21798, Apr. 22, 2008; 74 FR 31560, July 1,
                                                                     responsibility, the contracting officer
                                                                                                                                2009; 75 FR 14066, Mar. 23, 2010; 78 FR 37678,
                                                                     shall consider information available                       June 21, 2013; 81 FR 11991, Mar. 7, 2016; 81 FR
                                                                     through FAPIIS (see 9.104–6) with re-                      58638, Aug. 25, 2016; 81 FR 91638, Dec. 16, 2016;
                                                                     gard to the offeror and any immediate                      82 FR 51530, Nov. 6, 2017; 84 FR 19844, May 6,
                                                                     owner, predecessor, or subsidiary iden-                    2019; 84 FR 47866, Sept. 10, 2019]
                                                                     tified for that offeror in FAPIIS, in-
                                                                     cluding information that is linked to                      9.105–2 Determinations            and       docu-
                                                                                                                                    mentation.
                                                                     FAPIIS such as from SAM, and
                                                                     CPARS, as well as any other relevant                         (a) Determinations. (1) The con-
                                                                     past performance information on the                        tracting officer’s signing of a contract
                                                                     offeror (see 9.104–1(c) and subpart 42.15).                constitutes a determination that the
                                                                     In addition, the contracting officer                       prospective contractor is responsible
                                                                     should use the following sources of in-                    with respect to that contract. When an
                                                                     formation to support such determina-                       offer on which an award would other-
                                                                     tions:                                                     wise be made is rejected because the
                                                                                                                                prospective contractor is found to be
                                                                       (1) Records and experience data, in-
                                                                                                                                nonresponsible, the contracting officer
                                                                     cluding verifiable knowledge of per-                       shall make, sign, and place in the con-
                                                                     sonnel within the contracting office,                      tract file a determination of non-
                                                                     audit offices, contract administration                     responsibility, which shall state the
                                                                     offices, and other contracting offices.                    basis for the determination.
                                                                       (2) The prospective contractor—in-                         (2) If the contracting officer deter-
                                                                     cluding bid or proposal information                        mines that a responsive small business
                                                                     (including the certification at 52.209–5                   lacks certain elements of responsi-
                                                                     or 52.212–3(h) (see 9.104–5)), question-                   bility, the contracting officer shall
                                                                     naire replies, financial data, informa-                    comply with the procedures in subpart
                                                                     tion on production equipment, and per-                     19.6. When a Certificate of Competency
                                                                     sonnel information.                                        is issued for a small business concern
                                                                       (3) Commercial sources of supplier in-                   (see subpart 19.6), the contracting offi-
                                                                     formation of a type offered to buyers in                   cer shall accept the Small Business Ad-
                                                                     the private sector.                                        ministration’s decision to issue a Cer-
                                                                       (4) Preaward survey reports (see                         tificate of Competency and award the
                                                                     9.106).                                                    contract to the concern.
                                                                       (5) Other sources such as publica-                         (b) Support documentation. (1) Docu-
                                                                     tions; suppliers, subcontractors, and                      ments and reports supporting a deter-
                                                                     customers of the prospective con-                          mination of responsibility or non-
                                                                     tractor; financial institutions; Govern-                   responsibility, including any preaward
                                                                                                                                survey reports, the use of FAPIIS in-
                                                                     ment agencies; and business and trade
                                                                                                                                formation (see 9.104–6), and any appli-
                                                                     associations.
                                                                                                                                cable Certificate of Competency, must
                                                                       (d) Contracting offices and cognizant                    be included in the contract file.
                                                                     contract administration offices that
                                                                                                                                  (2)(i) The contracting officer shall
                                                                     become aware of circumstances casting                      document the determination of non-
                                                                     doubt on a contractor’s ability to per-                    responsibility in FAPIIS (available at
                                                                     form     contracts    successfully   shall                 https://www.cpars.gov’’ if—
                                                                                                                                  (A) The contract is valued at more
                                                                                                                                than the simplified acquisition thresh-




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                                                                                old;
                                                                                                                                  (B) The determination of nonrespon-
                                                                                                                                sibility is based on lack of satisfactory
                                                                                                                                performance record or satisfactory

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                                                                     9.105–3                                                                48 CFR Ch. 1 (10–1–25 Edition)

                                                                     record of integrity and business ethics;                   prior to reposting the releasable infor-
                                                                     and                                                        mation.
                                                                       (C) The Small Business Administra-                       [48 FR 42142, Sept. 19, 1983, as amended at 75
                                                                     tion does not issue a Certificate of                       FR 14066, Mar. 23, 2010; 77 FR 201, Jan. 3, 2012;
                                                                     Competency.                                                79 FR 24253, Apr. 29, 2014; 84 FR 47866, Sept.
                                                                       (ii) The contracting officer is respon-                  10, 2019]
                                                                     sible for the timely submission, within
                                                                     3 working days, and sufficiency, and                       9.105–3 Disclosure of preaward infor-
                                                                     accuracy of the documentation regard-                          mation.
                                                                     ing the nonresponsibility determina-                         (a) Except as provided in subpart 24.2,
                                                                     tion.                                                      Freedom of Information Act, informa-
                                                                       (iii) As required by section 3010 of the                 tion (including the preaward survey re-
                                                                     Supplemental Appropriations Act, 2010                      port) accumulated for purposes of de-
                                                                     (Pub. L. 111–212), all information posted                  termining the responsibility of a pro-
                                                                     in FAPIIS on or after April 15, 2011, ex-                  spective contractor shall not be re-
                                                                     cept past performance reviews, will be                     leased or disclosed outside the Govern-
                                                                     publicly available. FAPIIS consists of                     ment.
                                                                     two segments—                                                (b) The contracting officer may dis-
                                                                       (A) The non-public segment, into                         cuss preaward survey information with
                                                                     which Government officials and con-                        the prospective contractor before de-
                                                                     tractors post information, which can                       termining responsibility. After award,
                                                                     only be viewed by—                                         the contracting officer or, if it is ap-
                                                                       (1) Government personnel and au-                         propriate, the head of the surveying ac-
                                                                     thorized users performing business on                      tivity or a designee may discuss the
                                                                     behalf of the Government; or                               findings of the preaward survey with
                                                                       (2) An offeror or contractor, when                       the company surveyed.
                                                                     viewing data on itself; and                                  (c) Preaward survey information may
                                                                       (B) The publicly-available segment,                      contain proprietary or source selection
                                                                     to which all data in the non-public seg-                   information and should be marked with
                                                                     ment of FAPIIS is automatically                            the appropriate legend and protected
                                                                     transferred after a waiting period of 14                   accordingly (see 3.104–4).
                                                                     calendar days, except for—
                                                                                                                                [48 FR 42142, Sept. 19, 1983, as amended at 54
                                                                       (1) Past performance reviews required
                                                                                                                                FR 20496, May 11, 1989; 62 FR 232, Jan. 2, 1997;
                                                                     by subpart 42.15;                                          67 FR 13063, Mar. 20, 2002; 81 FR 58638, Aug.
                                                                       (2) Information that was entered                         25, 2016; 82 FR 51530, Nov. 6, 2017]
                                                                     prior to April 15, 2011; or
                                                                       (3) Information that is withdrawn                        9.106   Preaward surveys.
                                                                     during the 14-calendar-day waiting pe-
                                                                     riod by the Government official who                        9.106–1 Conditions for preaward sur-
                                                                     posted it in accordance with paragraph                         veys.
                                                                     (b)(2)(iv) of this section.                                  (a) A preaward survey is normally re-
                                                                       (iv) The contracting officer, or any                     quired only when the information on
                                                                     other Government official, shall not                       hand or readily available to the con-
                                                                     post any information in the non-public                     tracting officer, including information
                                                                     segment of FAPIIS that is covered by a                     from commercial sources, is not suffi-
                                                                     disclosure exemption under the Free-                       cient to make a determination regard-
                                                                     dom of Information Act. If the con-                        ing responsibility. In addition, if the
                                                                     tractor asserts within 7 calendar days,                    contemplated contract will have a
                                                                     to the Government official who posted                      fixed price at or below the simplified
                                                                     the information, that some of the in-                      acquisition threshold or will involve
                                                                     formation posted to the non-public seg-                    the acquisition of commercial products
                                                                     ment of FAPIIS is covered by a disclo-                     or commercial services (see part 12),
                                                                     sure exemption under the Freedom of                        the contracting officer should not re-
                                                                     Information Act, the Government offi-                      quest a preaward survey unless cir-
                                                                     cial who posted the information must                       cumstances justify its cost.




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     within 7 calendar days remove the                            (b) When a cognizant contract admin-
                                                                     posting from FAPIIS and resolve the                        istration office becomes aware of a pro-
                                                                     issue in accordance with agency Free-                      spective award to a contractor about
                                                                     dom of Information Act procedures,                         which unfavorable information exists

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                                                                     Federal Acquisition Regulation                                                                       9.106–4

                                                                     and no preaward survey has been re-                        be accommodated (also see subpart
                                                                     quested, it shall promptly obtain and                      17.5).
                                                                     transmit details to the contracting of-                    [48 FR 42142, Sept. 19, 1983, as amended at 54
                                                                     ficer.                                                     FR 20496, May 11, 1989; 55 FR 36795, Sept. 6,
                                                                       (c) Before beginning a preaward sur-                     1990; 62 FR 232, Jan. 2, 1997, 75 FR 77735, Dec.
                                                                     vey, the surveying activity shall ascer-                   13, 2010]
                                                                     tain whether the prospective con-
                                                                                                                                9.106–4 Reports.
                                                                     tractor is debarred, suspended, or ineli-
                                                                     gible (see subpart 9.4). If the prospec-                     (a) The surveying activity shall com-
                                                                     tive contractor is debarred, suspended,                    plete the applicable parts of SF 1403,
                                                                     or ineligible, the surveying activity                      Preaward Survey of Prospective Con-
                                                                                                                                tractor (General); SF 1404, Preaward
                                                                     shall advise the contracting officer
                                                                                                                                Survey of Prospective Contractor—
                                                                     promptly and not proceed with the
                                                                                                                                Technical; SF 1405, Preaward Survey of
                                                                     preaward survey unless specifically re-                    Prospective     Contractor—Production;
                                                                     quested to do so by the contracting of-                    SF 1406, Preaward Survey of Prospec-
                                                                     ficer.                                                     tive Contractor—Quality Assurance;
                                                                     [48 FR 42142, Sept. 19, 1983, as amended at 51             SF 1407, Preaward Survey of Prospec-
                                                                     FR 27489, July 31, 1986; 60 FR 48237, Sept. 18,            tive Contractor—Financial Capability;
                                                                     1995; 61 FR 39201, July 26, 1996; 86 FR 61021,             and SF 1408, Preaward Survey of Pro-
                                                                     Nov. 4, 2021]                                              spective Contractor—Accounting Sys-
                                                                                                                                tem; and provide a narrative discussion
                                                                     9.106–2 Requests            for     preaward     sur-      sufficient to support both the evalua-
                                                                         veys.                                                  tion ratings and the recommendations.
                                                                       The contracting officer’s request to                       (b) When the contractor surveyed is a
                                                                     the surveying activity (Preaward Sur-                      small business that has received pref-
                                                                     vey of Prospective Contractor (Gen-                        erential treatment on an ongoing con-
                                                                     eral), SF 1403) shall—                                     tract under Section 8(a) of the Small
                                                                       (a) Identify additional factors about                    Business Act (15 U.S.C. 637) or has re-
                                                                                                                                ceived a Certificate of Competency dur-
                                                                     which information is needed;
                                                                                                                                ing the last 12 months, the surveying
                                                                       (b) Include the complete solicitation                    activity shall consult the appropriate
                                                                     package (unless it has previously been                     Small Business Administration field
                                                                     furnished), and any information indi-                      office before making an affirmative
                                                                     cating prior unsatisfactory perform-                       recommendation regarding the con-
                                                                     ance by the prospective contractor;                        tractor’s responsibility or nonresponsi-
                                                                       (c) State whether the contracting of-                    bility.
                                                                     fice will participate in the survey;                         (c) When a preaward survey discloses
                                                                       (d) Specify the date by which the re-                    previous unsatisfactory performance,
                                                                     port is required. This date should be                      the surveying activity shall specify the
                                                                     consistent with the scope of the survey                    extent to which the prospective con-
                                                                     requested and normally shall allow at                      tractor plans, or has taken, corrective
                                                                     least 7 working days to conduct the                        action. Lack of evidence that past fail-
                                                                     survey; and                                                ure to meet contractual requirements
                                                                       (e) When appropriate, limit the scope                    was the prospective contractor’s fault
                                                                     of the survey.                                             does not necessarily indicate satisfac-
                                                                                                                                tory performance. The narrative shall
                                                                     9.106–3      Interagency preaward surveys.                 report any persistent pattern of need
                                                                                                                                for costly and burdensome Government
                                                                       When the contracting office and the                      assistance (e.g., engineering, inspec-
                                                                     surveying activity are in different                        tion, or testing) provided in the Gov-
                                                                     agencies, the procedures of this section                   ernment’s interest but not contrac-
                                                                     9.106 and subpart 42.1 shall be followed                   tually required.
                                                                     along with the regulations of the agen-                      (d) When the surveying activity pos-
                                                                     cy in which the surveying activity is                      sesses information that supports a rec-




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     located, except that reasonable special                    ommendation of complete award with-
                                                                     requests by the contracting office shall                   out an on-site survey and no special
                                                                                                                                areas for investigation have been re-
                                                                                                                                quested, the surveying activity may

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                                                                     9.107                                                                  48 CFR Ch. 1 (10–1–25 Edition)

                                                                     provide a short-form preaward survey                       From People Who Are Blind or Se-
                                                                     report. The short-form report shall                        verely Disabled.
                                                                     consist solely of the Preaward Survey
                                                                                                                                [59 FR 67029, Dec. 28, 1994, as amended at 73
                                                                     of Prospective Contractor (General),                       FR 53995, Sept. 17, 2008; 79 FR 24199, Apr. 29,
                                                                     SF 1403. Sections III and IV of this                       2014; 84 FR 19844, May 6, 2019]
                                                                     form shall be completed and block 21
                                                                     shall be checked to show that the re-                      9.108 Prohibition on contracting with
                                                                     port is a short-form preaward report.                          inverted domestic corporations.

                                                                     9.107 Surveys of nonprofit agencies                        9.108–1     Definitions.
                                                                         participating in the AbilityOne Pro-                     As used in this section—
                                                                         gram.
                                                                                                                                  Inverted domestic corporation means a
                                                                       (a) The Committee for Purchase                           foreign incorporated entity that meets
                                                                     From People Who Are Blind or Se-                           the definition of an inverted domestic
                                                                     verely Disabled (Committee), as au-                        corporation under 6 U.S.C. 395(b), ap-
                                                                     thorized by 41 U.S.C. chapter 85, deter-                   plied in accordance with the rules and
                                                                     mines what supplies and services Fed-                      definitions of 6 U.S.C. 395(c).
                                                                     eral agencies are required to purchase                       Subsidiary means an entity in which
                                                                     from AbilityOne participating non-                         more than 50 percent of the entity is
                                                                     profit agencies serving people who are                     owned—
                                                                     blind or have other severe disabilities                      (1) Directly by a parent corporation;
                                                                     (see Subpart 8.7). The Committee is re-                    or
                                                                     quired to find an AbilityOne partici-                        (2) Through another subsidiary of a
                                                                     pating nonprofit agency capable of fur-                    parent corporation.
                                                                     nishing the supplies or services before
                                                                     the nonprofit agency can be designated                     [76 FR 31413, May 31, 2011, as amended at 79
                                                                     as a mandatory source under the                            FR 74556, Dec. 15, 2014]
                                                                     AbilityOne Program. The Committee
                                                                                                                                9.108–2     Prohibition.
                                                                     may request a contracting office to as-
                                                                     sist in assessing the capabilities of a                      (a) Section 745 of Division D of the
                                                                     nonprofit agency.                                          Consolidated Appropriations Act, 2008
                                                                       (b) The contracting office, upon re-                     (Pub. L. 110–161) and its successor pro-
                                                                     quest from the Committee, shall re-                        visions in subsequent appropriations
                                                                     quest a capability survey from the ac-                     acts (and as extended in continuing
                                                                     tivity   responsible    for  performing                    resolutions) prohibit, on a Govern-
                                                                     preaward surveys, or notify the Com-                       mentwide basis, the use of appropriated
                                                                     mittee that the AbilityOne partici-                        (or otherwise made available) funds for
                                                                     pating nonprofit agency is capable,                        contracts with either an inverted do-
                                                                     with supporting rationale, and that the                    mestic corporation, or a subsidiary of
                                                                     survey is waived. The capability survey                    such a corporation, except as provided
                                                                     will focus on the technical and produc-                    in paragraph (b) of this section and in
                                                                     tion    capabilities    and   applicable                   9.108–4 Waiver.
                                                                     preaward survey elements to furnish                          (b)(1) Section 745 and its successor
                                                                     specific supplies or services being con-                   provisions include the following excep-
                                                                     sidered for addition to the Procure-                       tion: This section shall not apply to
                                                                     ment List.                                                 any Federal Government contract en-
                                                                       (c) The contracting office shall use                     tered into before the date of the enact-
                                                                     the Standard Form 1403 to request a                        ment of this Act, or to any task order
                                                                     capability survey of organizations em-                     issued pursuant to such contract.
                                                                     ploying people who are blind or have                         (2) To ensure appropriate application
                                                                     other severe disabilities.                                 of the prohibition and this exception,
                                                                                                                                contracting officers should consult
                                                                       (d) The contracting office shall fur-
                                                                                                                                with legal counsel if, during the per-
                                                                     nish a copy of the completed survey, or
                                                                                                                                formance of a contract, a contractor




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     notice that the AbilityOne partici-
                                                                                                                                becomes an inverted domestic corpora-
                                                                     pating nonprofit agency is capable and
                                                                                                                                tion or a subsidiary of one.
                                                                     the survey is waived, to the Executive
                                                                     Director, Committee for Purchase                           [79 FR 74556, Dec. 15, 2014]

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                                                                     Federal Acquisition Regulation                                                                       9.109–4

                                                                     9.108–3 Representation by the offeror.                     9.109–2 Prohibition.
                                                                       (a) In order to be eligible for contract                   Contracting officers shall not award,
                                                                     award, an offeror must represent that                      renew, or extend a contract for the pro-
                                                                     it is neither an inverted domestic cor-                    curement of products or services with
                                                                     poration, nor a subsidiary of an in-                       an entity identified as excluded in the
                                                                     verted domestic corporation. Any offer-                    System for Award Management, spe-
                                                                     or that cannot so represent is ineligible                  cifically for this subpart, on the basis
                                                                     for award of a contract, unless waived                     of involvement in activities that vio-
                                                                     in accordance with the procedures at                       late arms control treaties or agree-
                                                                     9.108–4.                                                   ments with the United States.
                                                                       (b) The contracting officer may rely
                                                                                                                                [83 FR 28148, June 15, 2018, as amended at 83
                                                                     on an offeror’s representation that it is                  FR 48696, Sept. 26, 2018]
                                                                     not an inverted domestic corporation
                                                                     unless the contracting officer has rea-                    9.109–3 Exception.
                                                                     son to question the representation.                          The prohibition in 9.109–2 does not
                                                                     [76 FR 31413, May 31, 2011, as amended at 77               apply to contracts for the procurement
                                                                     FR 27548, May 10, 2012; 79 FR 74556, Dec. 15,              of products or services along a major
                                                                     2014]                                                      route of supply to a zone of active com-
                                                                                                                                bat or major contingency operation, as
                                                                     9.108–4 Waiver.                                            specified in statute or by the cognizant
                                                                       Any agency head may waive the pro-                       Combatant Commander, in consulta-
                                                                     hibition in subsection 9.108–2 and the                     tion with the Chief of Mission. As of
                                                                     requirement of subsection 9.108–3 for a                    May 10, 2018, countries along the major
                                                                     specific contract if the agency head de-                   route of supply to support operations
                                                                     termines in writing that the waiver is                     in Afghanistan are Afghanistan, Geor-
                                                                     required in the interest of national se-                   gia, the Kyrgyz Republic, Pakistan, the
                                                                     curity, documents the determination,                       Republic of Armenia, the Republic of
                                                                     and reports it to the Congress.                            Azerbaijan,      the     Republic     of
                                                                     [76 FR 31413, May 31, 2011]
                                                                                                                                Kazakhstan,       the    Republic     of
                                                                                                                                Tajikistan, the Republic of Uzbekistan,
                                                                     9.108–5 Solicitation provision and con-                    and Turkmenistan.
                                                                         tract clause.                                          [83 FR 28148, June 15, 2018]
                                                                       The contracting officer shall—
                                                                       (a) Include the provision at 52.209–2,                   9.109–4 Certification by the offeror.
                                                                     Prohibition on Contracting with In-                          (a) In order to be eligible for contract
                                                                     verted Domestic Corporations—Rep-                          award, an offeror is required to—
                                                                     resentation, in each solicitation for the                    (1)(i) Certify that it does not engage
                                                                     acquisition of products or services (in-                   and has not engaged in any activity
                                                                     cluding construction); and                                 that contributed to or was a significant
                                                                       (b) Include the clause at 52.209–10,                     factor in the President’s or Secretary
                                                                     Prohibition on Contracting with In-                        of State’s determination that a foreign
                                                                     verted Domestic Corporations, in each                      country is in violation of its obliga-
                                                                     solicitation and contract for the acqui-                   tions undertaken in any arms control,
                                                                     sition of products or services (including                  nonproliferation,     or     disarmament
                                                                     construction).                                             agreement to which the United States
                                                                     [76 FR 31413, May 31, 2011, as amended at 77               is a party, or is not adhering to its
                                                                     FR 27548, May 10, 2012; 79 FR 74556, Dec. 15,              arms control, nonproliferation, or dis-
                                                                     2014]                                                      armament commitments in which the
                                                                                                                                United States is a participating state.
                                                                     9.109 Prohibition on contracting with                      The determinations are described in
                                                                         an entity involved in activities that                  the most recent unclassified annual re-
                                                                         violate arms control treaties or                       port provided to Congress pursuant to
                                                                         agreements with the United States.
                                                                                                                                section 403 of the Arms Control and
                                                                     9.109–1 Authority.                                         Disarmament Act (22 U.S.C. 2593a). The




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                                                                                report     is   available     at    https://
                                                                       This section implements 22 U.S.C.                        www.state.gov/bureaus-offices/under-sec-
                                                                     2593e.                                                     retary-for-arms-control-and-inter-
                                                                     [83 FR 28148, June 15, 2018]                               national-security-affairs/bureau-of-arms-

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                                                                     9.109–5                                                                48 CFR Ch. 1 (10–1–25 Edition)

                                                                     control-verification-and-compliance/’’;                    9.110 Reserve Officer Training Corps
                                                                     and                                                            and military recruiting on campus.
                                                                       (ii) Similarly certify with regard to
                                                                     any entity owned or controlled by the                      9.110–1     Definitions.
                                                                     offeror; or                                                  As used in this section—
                                                                       (2) Provide with its offer information                     Covered agency means—
                                                                     that the President of the United States                      (1) The Department of Defense;
                                                                     has—                                                         (2) Any department or agency for
                                                                       (i) Waived application under 22 U.S.C.                   which regular appropriations are made
                                                                     2593e(d) or (e); or                                        in a Department of Labor, Health and
                                                                       (ii) Determined under 22 U.S.C.                          Human Services, and Education, and
                                                                     2593e(g)(2) that the entity has ceased                     Related Agencies Appropriations Act;
                                                                     all activities for which measures were                       (3) The Department of Homeland Se-
                                                                     imposed under 22 U.S.C. 2593e(b).                          curity;
                                                                       (b) If certifying in accordance with                       (4) The National Nuclear Security
                                                                                                                                Administration of the Department of
                                                                     52.209–13(b)(1), the Offeror is required to
                                                                                                                                Energy;
                                                                     submit the certification with the offer.
                                                                                                                                  (5) The Department of Transpor-
                                                                     It is not included in the annual rep-
                                                                                                                                tation; or
                                                                     resentations and certifications in the
                                                                                                                                  (6) The Central Intelligence Agency.
                                                                     System for Award Management.
                                                                                                                                  Institution of higher education means
                                                                       (c) The contracting officer may rely                     an institution that meets the require-
                                                                     on an offeror’s certification unless the                   ments of 20 U.S.C. 1001 and includes all
                                                                     contracting officer has reason to ques-                    sub-elements of such an institution.
                                                                     tion the certification.
                                                                       (d) Upon the determination of a false                    [85 FR 67621, Oct. 23, 2020]
                                                                     certification under 52.209–13, an offeror                  9.110–2     Authority.
                                                                     will be subject to such remedies as sus-
                                                                     pension or debarment under subpart                           This section implements 10 U.S.C.
                                                                     9.4, or termination of any contract re-                    983.
                                                                     sulting from the false certification.                      [85 FR 67621, Oct. 23, 2020]
                                                                     Debarments pursued as a remedy under
                                                                     subpart 9.4 shall be for a period of not                   9.110–3     Policy.
                                                                     less than 2 years, inclusive of any sus-                     (a) Except as provided in paragraph
                                                                     pension period, if suspension precedes a                   (b) of this section, 10 U.S.C. 983 pro-
                                                                     debarment (see 9.406–4(a)(1)(iii) and                      hibits the covered agency from pro-
                                                                     (a)(2)).                                                   viding funds by contract to an institu-
                                                                                                                                tion of higher education if the Sec-
                                                                     [83 FR 28148, June 15, 2018, as amended at 83
                                                                     FR 48696, Sept. 26, 2018; 85 FR 40076, July 2,
                                                                                                                                retary of Defense determines that the
                                                                     2020; 86 FR 3678, Jan. 14, 2021]                           institution has a policy or practice
                                                                                                                                that prohibits or in effect prevents—
                                                                     9.109–5      Solicitation provision.                         (1) The Secretary of a military de-
                                                                                                                                partment from maintaining, estab-
                                                                       Unless the exception at 9.109–3 ap-                      lishing, or operating a unit of the Sen-
                                                                     plies, the contracting officer shall in-                   ior Reserve Officer Training Corps
                                                                     clude the provision at 52.209–13, Viola-                   (ROTC) at that institution;
                                                                     tion of Arms Control Treaties or                             (2) A student at that institution from
                                                                     Agreements—Certification, in each so-                      enrolling in a unit of the Senior ROTC
                                                                     licitation for the acquisition of prod-                    at another institution of higher edu-
                                                                     ucts or services (including construc-                      cation;
                                                                     tion) that exceeds the simplified acqui-                     (3) The Secretary of a military de-
                                                                     sition threshold, other than solicita-                     partment or the Secretary of Homeland
                                                                     tions for the acquisition of commercial                    Security from gaining access to cam-
                                                                     products or commercial services.                           puses, or access to students (who are 17




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                                                                                years of age or older) on campuses, for
                                                                     [83 FR 28148, June 15, 2018, as amended at 86
                                                                                                                                purposes of military recruiting in a
                                                                     FR 61021, Nov. 4, 2021]
                                                                                                                                manner that is at least equal in quality
                                                                                                                                and scope to the access to campuses

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                                                                     Federal Acquisition Regulation                                                                       9.202

                                                                     and to students that is provided to any                    using funds from a covered agency. The
                                                                     other employer; or                                         clause is not prescribed for solicita-
                                                                       (4) Military recruiters from accessing                   tions and contracts using part 12 for
                                                                     certain information pertaining to stu-                     the acquisition of commercial products
                                                                     dents (who are 17 years of age or older)                   and commercial services.
                                                                     enrolled at that institution:
                                                                                                                                [85 FR 67621, Oct. 23, 2020, as amended at 86
                                                                       (i) Name, address, and telephone list-                   FR 61021, Nov. 4, 2021]
                                                                     ings.
                                                                       (ii) Date and place of birth, edu-
                                                                     cational level, academic majors, de-                            Subpart 9.2—Qualifications
                                                                     grees received, and the most recent                                  Requirements
                                                                     educational institution enrolled in by
                                                                     the student.                                                 SOURCE: 50 FR 35476, Aug. 30, 1985, unless
                                                                       (b) The prohibition in paragraph (a)                     otherwise noted.
                                                                     of this section does not apply to an in-
                                                                     stitution of higher education if the                       9.200   Scope of subpart.
                                                                     Secretary of Defense determines that—                         This subpart implements 10 U.S.C.
                                                                       (1) The institution has ceased the                       3243 and 41 U.S.C. 3311 and prescribes
                                                                     policy or practice described in para-                      policies and procedures regarding qual-
                                                                     graph (a) of this section; or                              ification requirements and the acquisi-
                                                                       (2) The institution has a long-stand-                    tions that are subject to such require-
                                                                     ing policy of pacifism based on histor-                    ments.
                                                                     ical religious affiliation.
                                                                                                                                [79 FR 24199, Apr. 29, 2014, as amended at 87
                                                                     [85 FR 67621, Oct. 23, 2020]                               73896, Dec. 1, 2022]

                                                                     9.110–4 Procedures.                                        9.201   Definitions.
                                                                       If the Secretary of Defense deter-                         As used in this subpart—
                                                                     mines, pursuant to the procedures at 32                      Qualified bidders list (QBL) means a
                                                                     CFR part 216, that an institution of                       list of bidders who have had their prod-
                                                                     higher education is ineligible to re-                      ucts examined and tested and who have
                                                                     ceive funds from a covered agency be-                      satisfied all applicable qualification re-
                                                                     cause of a policy or practice described                    quirements for that product or have
                                                                     in 9.110–3—                                                otherwise satisfied all applicable quali-
                                                                       (a) The Secretary of Defense will cre-                   fication requirements.
                                                                     ate an active exclusion record for the                       Qualified manufacturers list (QML)
                                                                     institution in the System for Award                        means a list of manufacturers who
                                                                     Management; and                                            have had their products examined and
                                                                       (b) A covered agency shall not solicit                   tested and who have satisfied all appli-
                                                                     offers from, award contracts to, or con-                   cable qualification requirements for
                                                                     sent to subcontracts with the institu-                     that product.
                                                                     tion. The prohibition in this paragraph
                                                                                                                                [50 FR 35476, Aug. 30, 1985, as amended at 53
                                                                     (b) does not apply to acquisitions at or                   FR 34227, Sept. 2, 1988; 66 FR 2128, Jan. 10,
                                                                     below     the   simplified   acquisition                   2001]
                                                                     threshold or to acquisitions of commer-
                                                                     cial products and commercial services,                     9.202   Policy.
                                                                     including commercially available off-                        (a)(1) The head of the agency or des-
                                                                     the-shelf items.                                           ignee shall, before establishing a quali-
                                                                     [85 FR 67621, Oct. 23, 2020, as amended at 86              fication requirement, prepare a written
                                                                     FR 61021, Nov. 4, 2021]                                    justification—
                                                                                                                                  (i) Stating the necessity for estab-
                                                                     9.110–5 Contract clause.                                   lishing the qualification requirement
                                                                       The contracting officer shall insert                     and specifying why the qualification
                                                                     the clause at 52.209–14, Reserve Officer                   requirement must be demonstrated be-
                                                                     Training Corps and Military Recruiting                     fore contract award;




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     on Campus, in solicitations and con-                         (ii) Estimating the likely costs for
                                                                     tracts that are expected to exceed the                     testing and evaluation which will be
                                                                     simplified acquisition threshold, with                     incurred by the potential offeror to be-
                                                                     institutions of higher education, when                     come qualified; and

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                                                                     9.202                                                                  48 CFR Ch. 1 (10–1–25 Edition)

                                                                       (iii) Specifying all requirements that                   the    requirements     of  9.202(a)(1)(ii)
                                                                     a potential offeror (or its product)                       through (4) of this section for up to 2
                                                                     must satisfy in order to become quali-                     years with respect to the item subject
                                                                     fied. Only those requirements which                        to the qualification requirement. A
                                                                     are the least restrictive to meet the                      copy of the waiver shall be furnished to
                                                                     purposes necessitating the establish-                      the head of the agency or other official
                                                                     ment of the qualification requirements                     responsible for actions under paragraph
                                                                     shall be specified.                                        (a)(1) of this section). The waiver au-
                                                                       (2) Upon request to the contracting                      thority provided in this paragraph does
                                                                     activity, potential offerors shall be                      not apply with respect to qualification
                                                                     provided—                                                  requirements contained in a QPL,
                                                                       (i) All requirements that they or                        QML, or QBL.
                                                                     their products must satisfy to become                        (c) If a potential offeror can dem-
                                                                     qualified; and                                             onstrate to the satisfaction of the con-
                                                                       (ii) At their expense (but see                           tracting officer that the potential of-
                                                                     9.204(a)(2) with regard to small busi-                     feror (or its product) meets the stand-
                                                                     nesses), a prompt opportunity to dem-                      ards established for qualification or
                                                                     onstrate their abilities to meet the                       can meet them before the date speci-
                                                                     standards specified for qualification                      fied for award of the contract, a poten-
                                                                     using qualified personnel and facilities                   tial offeror may not be denied the op-
                                                                     of the agency concerned, or of another                     portunity to submit and have consid-
                                                                     agency obtained through interagency                        ered an offer for a contract solely be-
                                                                     agreements, or under contract, or                          cause the potential offeror—
                                                                     other methods approved by the agency                         (1) Is not on a QPL, QML, or QBL
                                                                     (including use of approved testing and                     maintained by the Department of De-
                                                                     evaluation services not provided under                     fense (DoD) or the National Aero-
                                                                     contract to the agency).                                   nautics and Space Administration
                                                                       (3) If the services in (a)(2)(ii) of this
                                                                                                                                (NASA); or
                                                                     section are provided by contract, the
                                                                                                                                  (2) Has not been identified as meeting
                                                                     contractors selected to provide testing
                                                                                                                                a qualification requirement established
                                                                     and evaluation services shall be—
                                                                       (i) Those that are not expected to                       after October 19, 1984, by DoD or NASA;
                                                                     benefit from an absence of additional                      or
                                                                     qualified sources; and                                       (3) Has not been identified as meeting
                                                                       (ii) Required by their contracts to ad-                  a qualification requirement established
                                                                     here to any restriction on technical                       by a civilian agency (not including
                                                                     data asserted by the potential offeror                     NASA).
                                                                     seeking qualification.                                       (d) The procedures in subpart 19.6 for
                                                                       (4) A potential offeror seeking quali-                   referring matters to the Small Busi-
                                                                     fication shall be promptly informed as                     ness Administration are not manda-
                                                                     to whether qualification is attained                       tory on the contracting officer when
                                                                     and, in the event it is not, promptly                      the basis for a referral would involve a
                                                                     furnished specific reasons why quali-                      challenge by the offeror to either the
                                                                     fication was not attained.                                 validity of the qualification require-
                                                                       (b) When justified under the cir-                        ment or the offeror’s compliance with
                                                                     cumstances, the agency activity re-                        such requirement.
                                                                     sponsible for establishing a qualifica-                      (e) The contracting officer need not
                                                                     tion requirement shall submit to the                       delay a proposed award in order to pro-
                                                                     advocate for competition for the pro-                      vide a potential offeror with an oppor-
                                                                     curing activity responsible for pur-                       tunity to demonstrate its ability to
                                                                     chasing the item subject to the quali-                     meet the standards specified for quali-
                                                                     fication requirement, a determination                      fication. In addition, when approved by
                                                                     that it is unreasonable to specify the                     the head of an agency or designee, a
                                                                     standards for qualification which a pro-                   procurement need not be delayed in
                                                                     spective offeror (or its product) must                     order to comply with paragraph (a) of




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     satisfy. After considering any com-                        this section.
                                                                     ments of the advocate for competition                        (f) Within 7 years following enforce-
                                                                     reviewing the determination, the head                      ment of a QPL, QML, or QBL by DoD
                                                                     of the procuring activity may waive                        or NASA, or within 7 years after any

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                                                                     Federal Acquisition Regulation                                                                       9.204

                                                                     qualification requirement was origi-                         (2) Department of Defense Manual
                                                                     nally established by a civilian agency                     4120.24, Defense Standardization Pro-
                                                                     other than NASA, the qualification re-                     gram            (DSP)           Procedures,
                                                                     quirement shall be examined and re-                        (www.esd.whs.mil/Directives/Issuances/
                                                                     validated in accordance with the re-                       dodm) as amended by Military Stand-
                                                                     quirements of paragraph (a) of this sec-                   ards 961 and 962 (https://assist.dla.mil).
                                                                     tion. For DoD and NASA, qualification                        (d) The publications in paragraphs
                                                                     requirements,     other   than    QPL’s,                   (b)(1) and (c)(1) of this section may be
                                                                     QML’s, and QBL’s, shall be examined                        obtained      from    the     address      in
                                                                     and revalidated within 7 years after es-                   11.201(d)(1).
                                                                     tablishment of the requirement under
                                                                                                                                [50 FR 35476, Aug. 30, 1985, as amended at 53
                                                                     paragraph (a) of this section. Any peri-                   FR 17857, May 18, 1988; 63 FR 34062, June 22,
                                                                     ods for which a waiver under paragraph                     1998; 67 FR 6120, Feb. 8, 2002; 71 FR 227, Jan.
                                                                     (b) of this section is in effect shall be                  3, 2006; 79 FR 24253, Apr. 29, 2014; 88 FR 57355,
                                                                     excluded in computing the 7 years                          Aug. 8, 2023]
                                                                     within which review and revalidation
                                                                     must occur.                                                9.204 Responsibilities for establish-
                                                                                                                                    ment of a qualification require-
                                                                     [50 FR 35476, Aug. 30, 1985, as amended at 53                  ment.
                                                                     FR 34227, Sept. 2, 1988; 79 FR 24199, Apr. 29,
                                                                     2014; 84 FR 19844, May, 6, 2019]                              The responsibilities of agency activi-
                                                                                                                                ties that establish qualification re-
                                                                     9.203       QPL’s, QML’s, and QBL’s.                       quirements include the following:
                                                                                                                                   (a) Arranging publicity for the quali-
                                                                        (a) Qualification and listing in a                      fication requirements. If active com-
                                                                     QPL, QML, or QBL is the process by                         petition on anticipated future quali-
                                                                     which products are obtained from man-                      fication requirements is likely to be
                                                                     ufacturers or distributors, examined                       fewer than two manufacturers or the
                                                                     and tested for compliance with speci-                      products of two manufacturers, the ac-
                                                                     fication requirements, or manufactur-                      tivity responsible for establishment of
                                                                     ers or potential offerors, are provided                    the qualification requirements must—
                                                                     an opportunity to demonstrate their                           (1) Periodically furnish through the
                                                                     abilities to meet the standards speci-                     Governmentwide point of entry (GPE)
                                                                     fied for qualification. The names of                       a notice seeking additional sources or
                                                                     successful products, manufacturers, or                     products for qualification unless the
                                                                     potential offerors are included on lists                   contracting officer determines that
                                                                     evidencing their status. Generally,                        such publication would compromise the
                                                                     qualification is performed in advance                      national security.
                                                                     and independently of any specific ac-                         (2) Bear the cost of conducting the
                                                                     quisition action. After qualification,                     specified testing and evaluation (ex-
                                                                     the products, manufacturers, or poten-                     cluding the costs associated with pro-
                                                                     tial offerors are included in a Federal                    ducing the item or establishing the
                                                                     or Military QPL, QML, or QBL. (See                         production, quality control, or other
                                                                     9.202(a)(2) with regard to any product,                    system to be tested and evaluated) for
                                                                     manufacturer, or potential offeror not                     a small business concern or a product
                                                                     yet included on an applicable list.)                       manufactured by a small business con-
                                                                        (b) Specifications requiring a quali-                   cern which has met the standards spec-
                                                                     fied product are included—                                 ified for qualification and which could
                                                                        (1) In the GSA Index of Federal Spec-                   reasonably be expected to compete for
                                                                     ifications, Standards and Commercial                       a contract for that requirement. How-
                                                                     Item Descriptions; and                                     ever, such costs may be borne only if it
                                                                        (2) On the Department of Defense Ac-                    is determined in accordance with agen-
                                                                     quisition Streamlining and Standard-                       cy procedures that such additional
                                                                     ization Information System (ASSIST)                        qualified sources or products are likely
                                                                     website at https://assist.dla.mil.                         to result in cost savings from increased
                                                                        (c) Instructions concerning qualifica-                  competition for future requirements




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     tion procedures are included in the fol-                   sufficient to amortize the costs in-
                                                                     lowing publications:                                       curred by the agency within a reason-
                                                                        (1) Federal Standardization Manual,                     able period of time, considering the du-
                                                                     FSPM–0001.                                                 ration and dollar value of anticipated

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                                                                     9.205                                                                  48 CFR Ch. 1 (10–1–25 Edition)

                                                                     future requirements. A prospective                           (2) The requirements in the specifica-
                                                                     contractor requesting the United                           tion have been amended or revised suf-
                                                                     States to bear testing and evaluation                      ficiently to affect the character of the
                                                                     costs must certify as to its status as a                   product; or
                                                                     small business concern under section 3                       (3) It is otherwise necessary to deter-
                                                                     of the Small Business Act in order to                      mine that the quality of the product is
                                                                     receive further consideration.                             maintained in conformance with the
                                                                       (b) Qualifying products that meet                        specification.
                                                                     specification requirements.
                                                                       (c) Listing manufacturers and sup-                       [50 FR 35476, Aug. 30, 1985, as amended at 66
                                                                     pliers whose products are qualified in                     FR 27413, May 16, 2001; 68 FR 56679, Oct. 1,
                                                                     accordance with agency procedures.                         2003; 84 FR 19844, May 6, 2019]
                                                                       (d) Furnishing QPL’s, OML’s, or
                                                                     QBL’s or the qualification require-                        9.205 Opportunity for qualification be-
                                                                                                                                    fore award.
                                                                     ments     themselves       to prospective
                                                                     offerors and the public upon re-                             (a) If an agency determines that a
                                                                     quest(see 9.202(a)(2)(i)).                                 qualification requirement is necessary,
                                                                       (e) Clarifying, as necessary, quali-                     the agency activity responsible for es-
                                                                     fication requirements.                                     tablishing the requirement must urge
                                                                       (f) In appropriate cases, when re-                       manufacturers and other potential
                                                                     quested by the contracting officer, pro-                   sources to demonstrate their ability to
                                                                     viding concurrence in a decision not to                    meet the standards specified for quali-
                                                                     enforce a qualification requirement for                    fication and, when possible, give suffi-
                                                                     a solicitation.                                            cient time to arrange for qualification
                                                                       (g) Withdrawing or omitting quali-                       before award. The responsible agency
                                                                     fication of a listed product, manufac-                     activity must, before establishing any
                                                                     turer or offeror, as necessary.
                                                                                                                                qualification requirement, furnish no-
                                                                       (h) Advising persons furnished any
                                                                                                                                tice through the GPE. The notice must
                                                                     list of products, manufacturers or
                                                                     offerors meeting a qualification re-                       include—
                                                                     quirement and suppliers whose prod-                          (1) Intent to establish a qualification
                                                                     ucts are on any such list that—                            requirement;
                                                                       (1) The list does not constitute en-                       (2) The specification number and
                                                                     dorsement of the product, manufac-                         name of the product;
                                                                     turer, or other source by the Govern-                        (3) The name and address of the ac-
                                                                     ment;                                                      tivity to which a request for the infor-
                                                                       (2) The products or sources listed                       mation and opportunity described in
                                                                     have been qualified under the latest ap-                   9.202(a)(2) should be submitted;
                                                                     plicable specification;                                      (4) The anticipated date that the
                                                                       (3) The list may be amended without                      agency will begin awarding contracts
                                                                     notice;                                                    subject to the qualification require-
                                                                       (4) The listing of a product or source                   ment;
                                                                     does not release the supplier from com-                      (5) A precautionary notice that when
                                                                     pliance with the specification; and                        a product is submitted for qualification
                                                                       (5) Use of the list for advertising or
                                                                                                                                testing, the applicant must furnish any
                                                                     publicity is permitted. However, it
                                                                                                                                specific information that may be re-
                                                                     must not be stated or implied that a
                                                                                                                                quested of the manufacturer before
                                                                     particular product or source is the only
                                                                     product or source of that type quali-                      testing will begin; and
                                                                     fied, or that the Government in any                          (6) The approximate time period fol-
                                                                     way recommends or endorses the prod-                       lowing submission of a product for
                                                                     ucts or the sources listed.                                qualification testing within which the
                                                                       (i) Reexamining a qualified product                      applicant will be notified whether the
                                                                     or manufacturer when—                                      product passed or failed the qualifica-
                                                                       (1) The manufacturer has modified its                    tion testing (see 9.202(a)(4)).




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     product, or changed the material or the                      (b) The activity responsible for estab-
                                                                     processing sufficiently so that the va-                    lishing a qualification requirement
                                                                     lidity of previous qualification is ques-                  must keep any list maintained of those
                                                                     tionable;                                                  already qualified open for inclusion of

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                                                                     Federal Acquisition Regulation                                                                       9.206–3

                                                                     additional products, manufacturers, or                     specified    for   qualification    before
                                                                     other potential sources.                                   award.
                                                                                                                                   (e) In acquisitions subject to quali-
                                                                     [50 FR 35476, Aug. 30, 1985, as amended at 64
                                                                     FR 72418, Dec. 27, 1999; 66 FR 27413, May 16,
                                                                                                                                fication requirements, the contracting
                                                                     2001; 68 FR 56679, Oct. 1, 2003; 69 FR 77872,              officer shall take the following steps:
                                                                     Dec. 28, 2004]                                                (1) Use presolicitation notices in ap-
                                                                                                                                propriate cases to advise potential sup-
                                                                     9.206 Acquisitions subject to qualifica-                   pliers before issuing solicitations in-
                                                                         tion requirements.                                     volving qualification requirements.
                                                                                                                                The notices shall identify the specifica-
                                                                     9.206–1      General.                                      tion containing the qualification re-
                                                                       (a) Agencies may not enforce any                         quirement and establish an allowable
                                                                     QPL, QML, or QBL without first com-                        time period, consistent with delivery
                                                                     plying with the requirements of                            requirements, for prospective offerors
                                                                     9.202(a). However, qualification require-                  to demonstrate their abilities to meet
                                                                     ments themselves, whether or not pre-                      the standards specified for qualifica-
                                                                     viously embodied in a QPL, QML, or                         tion. The notice shall be publicized in
                                                                     QBL, may be enforced without regard                        accordance with 5.204. Whether or not a
                                                                     to 9.202(a) if they are in either of the                   presolicitation notice is used, the gen-
                                                                     following categories:                                      eral synopsizing requirements of sub-
                                                                                                                                part 5.2 apply.
                                                                       (1) Any qualification requirement es-
                                                                                                                                   (2) Distribute solicitations to pro-
                                                                     tablished by statute prior to October
                                                                                                                                spective contractors whether or not
                                                                     30, 1984, for civilian agencies (not in-
                                                                                                                                they have been identified as meeting
                                                                     cluding NASA); or
                                                                                                                                applicable qualification requirements.
                                                                       (2) Any qualification requirement es-                       (3) When appropriate, request in ac-
                                                                     tablished by statute or administrative                     cordance with agency procedures that
                                                                     action prior to October 19, 1984, for                      a qualification requirement not be en-
                                                                     DOD or NASA. Qualification require-                        forced in a particular acquisition and,
                                                                     ments established after the above dates                    if granted, so specify in the solicitation
                                                                     must comply with 9.202(a) to be en-                        (see 9.206–1(b)).
                                                                     forceable.                                                    (4) Forward requests from potential
                                                                       (b) Except when the agency head or                       suppliers for information on a quali-
                                                                     designee determines that an emergency                      fication requirement to the agency ac-
                                                                     exists, whenever an agency elects,                         tivity responsible for establishing the
                                                                     whether before or after award, not to                      requirement.
                                                                     enforce a qualification requirement                           (5) Allow the maximum time, con-
                                                                     which it established, the requirement                      sistent with delivery requirements, be-
                                                                     may not thereafter be enforced unless                      tween issuing the solicitation and the
                                                                     the agency complies with 9.202(a).                         contract award. As a minimum, con-
                                                                       (c) If a qualification requirement ap-                   tracting officers shall comply with the
                                                                     plies, the contracting officer need con-                   time frames specified in 5.203 when ap-
                                                                     sider only those offers identified as                      plicable.
                                                                     meeting the requirement or included
                                                                                                                                [50 FR 35476, Aug. 30, 1985, as amended at 53
                                                                     on the applicable QPL, QML, or QBL,                        FR 34227, Sept. 2, 1988]
                                                                     unless an offeror can satisfactorily
                                                                     demonstrate to the contracting officer                     9.206–2 Contract clause.
                                                                     that it or its product or its subcon-
                                                                                                                                  The contracting officer shall insert
                                                                     tractor or its product can meet the
                                                                                                                                the clause at 52.209–1, Qualification Re-
                                                                     standards established for qualification
                                                                                                                                quirements, in solicitations and con-
                                                                     before the date specified for award.
                                                                                                                                tracts when the acquisition is subject
                                                                       (d) If a product subject to a qualifica-                 to a qualification requirement.
                                                                     tion requirement is to be acquired as a
                                                                     component of an end item, the con-                         [53 FR 34227, Sept. 2, 1988]
                                                                     tracting officer must assure that all
                                                                                                                                9.206–3 Competition.




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     such components and their qualifica-
                                                                     tion requirements are properly identi-                       (a) Presolicitation. If a qualification
                                                                     fied in the solicitation since the prod-                   requirement applies to an acquisition,
                                                                     uct or source must meet the standards                      the contracting officer shall review the

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                                                                     9.207                                                                  48 CFR Ch. 1 (10–1–25 Edition)

                                                                     applicable QPL, QML, or QBL or other                         (3) A supplier fails to request reevalu-
                                                                     identification of those sources which                      ation following change of location or
                                                                     have met the requirement before                            ownership of the plant where the prod-
                                                                     issuing a solicitation to ascertain                        uct which met the qualification re-
                                                                     whether the number of sources is ade-                      quirement was manufactured (see the
                                                                     quate for competition. (See 9.204(a) for                   clause at 52.209–1, Qualification Re-
                                                                     duties of the agency activity respon-                      quirements);
                                                                     sible for establishment of the qualifica-                    (4) A manufacturer of a product
                                                                     tion requirement.) If the number of                        which met the qualification require-
                                                                     sources is inadequate, the contracting                     ment has discontinued manufacture of
                                                                     officer shall request the agency activ-                    the product;
                                                                     ity which established the requirement                        (5) A source requests removal from a
                                                                     to—                                                        QPL, QML, or QBL;
                                                                       (1) Indicate the anticipated date on                       (6) A condition of meeting the quali-
                                                                     which any sources presently under-                         fication requirement was violated; e.g.,
                                                                     going evaluation will have dem-                            advertising or publicity contrary to
                                                                     onstrated their abilities to meet the                      9.204(h)(5);
                                                                     qualification requirement so that the                        (7) A revised specification imposes a
                                                                     solicitation could be rescheduled to                       new qualification requirement;
                                                                     allow as many additional sources as                          (8) Manufacturing or design changes
                                                                     possible to qualify; or                                    have been incorporated in the quali-
                                                                       (2) Indicate whether a means other                       fication requirement;
                                                                     than the qualification requirement is                        (9) The source is listed in the System
                                                                     feasible for testing or demonstrating                      for Award Management Exclusions (see
                                                                     quality assurance.                                         Subpart 9.4); or
                                                                       (b) Postsolicitation. The contracting                      (10) Performance of a contract sub-
                                                                     officer shall submit to the agency ac-                     ject to a qualification requirement is
                                                                     tivity which established the qualifica-                    otherwise unsatisfactory.
                                                                     tion requirement the names and ad-                           (b) After considering any of the above
                                                                     dresses of concerns which expressed in-                    or other conditions reasonably related
                                                                     terest in the acquisition but are not in-                  to whether a product or source con-
                                                                     cluded on the applicable QPL, QML, or                      tinues to meet the standards specified
                                                                     QBL or identified as meeting the quali-                    for qualification, an agency may take
                                                                     fication requirement. The activity will                    appropriate action without advance no-
                                                                     then assist interested concerns in                         tification. The agency shall, however,
                                                                     meeting the standards specified for                        promptly notify the affected parties if
                                                                     qualification (see 9.202(a) (2) and (4)).                  a product or source is removed from a
                                                                     [50 FR 35476, Aug. 30, 1985, as amended at 60              QPL, QML, or QBL, or will no longer be
                                                                     FR 34737, July 3, 1995]                                    identified as meeting the standards
                                                                                                                                specified for qualification. This notice
                                                                     9.207 Changes in status regarding                          shall contain specific information why
                                                                         qualification requirements.                            the product or source no longer meets
                                                                       (a) The contracting officer shall                        the qualification requirement.
                                                                     promptly report to the agency activity
                                                                                                                                [50 FR 35476, Aug. 30, 1985, as amended at 53
                                                                     which established the qualification re-                    FR 34227, Sept. 2, 1988; 56 FR 15149, Apr. 15,
                                                                     quirement any conditions which may                         1991; 60 FR 33065, June 26, 1995; 69 FR 76349,
                                                                     merit removal or omission from a QPL,                      Dec. 20, 2004; 78 FR 37678, June 21, 2013]
                                                                     QML, or QBL or affect whether a
                                                                     source should continue to be otherwise                       Subpart 9.3—First Article Testing
                                                                     identified as meeting the requirement.
                                                                     These conditions exist when—
                                                                                                                                          and Approval
                                                                       (1) Products or services are sub-                        9.301 Definition.
                                                                     mitted for inspection or acceptance
                                                                     that do not meet the qualification re-                       Approval, as used in this subpart,
                                                                     quirement;                                                 means the contracting officer’s written
                                                                                                                                notification to the contractor accept-




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                       (2) Products or services were pre-
                                                                     viously rejected and the defects were                      ing the test results of the first article.
                                                                     not corrected when resubmitted for in-                     [48 FR 42142, Sept. 19, 1983, as amended at 66
                                                                     spection or acceptance;                                    FR 2128, Jan. 10, 2001]

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                                                                     Federal Acquisition Regulation                                                                       9.306

                                                                     9.302       General.                                       9.305   Risk.
                                                                       First article testing and approval                         Before first article approval, the ac-
                                                                     (hereafter referred to as testing and ap-                  quisition of materials or components,
                                                                     proval) ensures that the contractor can                    or commencement of production, is
                                                                     furnish a product that conforms to all                     normally at the sole risk of the con-
                                                                     contract requirements for acceptance.                      tractor. To minimize this risk, the con-
                                                                     Before requiring testing and approval,                     tracting officer shall provide sufficient
                                                                     the contracting officer shall consider                     time in the delivery schedule for acqui-
                                                                     the—                                                       sition of materials and components,
                                                                       (a) Impact on cost or time of deliv-                     and for production after receipt of first
                                                                     ery;                                                       article approval. When Government re-
                                                                       (b) Risk to the Government of fore-                      quirements preclude this action, the
                                                                     going such test; and                                       contracting officer may, before ap-
                                                                                                                                proval of the first article, authorize the
                                                                       (c) Availability of other, less costly,
                                                                                                                                contractor to acquire specific mate-
                                                                     methods of ensuring the desired qual-
                                                                                                                                rials or components or commence pro-
                                                                     ity.
                                                                                                                                duction to the extent essential to meet
                                                                     9.303       Use.                                           the delivery schedule (see Alternate II
                                                                                                                                of the clause at 52.209–3, First Article
                                                                       Testing and approval may be appro-                       Approval—Contractor Testing, and Al-
                                                                     priate when—                                               ternate II of the clause at 52.209–4,
                                                                       (a) The contractor has not previously                    First Article Approval—Government
                                                                     furnished the product to the Govern-                       Testing. Costs incurred based on this
                                                                     ment;                                                      authorization are allocable to the con-
                                                                       (b) The contractor previously fur-                       tract for—
                                                                     nished the product to the Government,                        (a) Progress payments; and
                                                                     but—                                                         (b) Termination settlements if the
                                                                       (1) There have been subsequent                           contract is terminated for the conven-
                                                                     changes in processes or specifications;                    ience of the Government.
                                                                       (2) Production has been discontinued                     [48 FR 42142, Sept. 19, 1983, as amended at 84
                                                                     for an extended period of time; or                         FR 19844, May 6, 2019]
                                                                       (3) The product acquired under a pre-
                                                                     vious contract developed a problem                         9.306   Solicitation requirements.
                                                                     during its life.                                             Solicitations containing a testing
                                                                       (c) The product is described by a per-                   and approval requirement shall—
                                                                     formance specification; or                                   (a) Provide, in the circumstance
                                                                       (d) It is essential to have an approved                  where the contractor is to be respon-
                                                                     first article to serve as a manufac-                       sible for the first article approval test-
                                                                     turing standard.                                           ing—
                                                                                                                                  (1) The performance or other charac-
                                                                     9.304       Exceptions.
                                                                                                                                teristics that the first article must
                                                                       Normally, testing and approval is not                    meet for approval;
                                                                     required in contracts for—                                   (2) The detailed technical require-
                                                                       (a) Research or development;                             ments for the tests that must be per-
                                                                       (b) Products requiring qualification                     formed for approval; and
                                                                     before award (e.g., when an applicable                       (3) The necessary data that must be
                                                                     qualified products list exists (see sub-                   submitted to the Government in the
                                                                     part 9.2));                                                first article approval test report;
                                                                       (c) Products normally sold in the                          (b) Provide, in the circumstance
                                                                     commercial market; or                                      where the Government is to be respon-
                                                                       (d) Products covered by complete and                     sible for the first article approval test-
                                                                     detailed technical specifications, un-                     ing—
                                                                     less the requirements are so novel or                        (1) The performance or other charac-




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     exacting that it is questionable wheth-                    teristics that the first article must
                                                                     er the products would meet the re-                         meet for approval; and
                                                                     quirements without testing and ap-                           (2) The tests to which the first article
                                                                     proval.                                                    will be subjected for approval;

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                                                                     9.307                                                                  48 CFR Ch. 1 (10–1–25 Edition)

                                                                       (c) Inform offerors that the require-                    other activity responsible for approval
                                                                     ment may be waived when supplies                           at the address specified in the contract,
                                                                     identical or similar to those called for                   the contract administration office
                                                                     have previously been delivered by the                      shall provide that activity with as
                                                                     offeror and accepted by the Govern-                        much advance notification as is fea-
                                                                     ment (see 52.209-3(h) and 52.209-4(i));                    sible of the forthcoming shipment,
                                                                       (d) Permit the submission of alter-                      and—
                                                                     native offers, one including testing and                     (1) Advise that activity of the con-
                                                                     approval and the other excluding test-                     tractual requirements for testing and
                                                                     ing and approval (if eligible under                        approval, or evaluation, as appropriate;
                                                                     paragraph (c) of this section);                              (2) Call attention to the notice re-
                                                                       (e) State clearly the first article’s re-                quirement in paragraph (b) of the
                                                                     lationship to the contract quantity                        clause at 52.209–3, First Article Ap-
                                                                     (see paragraph (e) of the clause at                        proval—Contractor Testing, or 52.209–4,
                                                                     52.209–3, First Article Approval—Con-                      First Article Approval—Government
                                                                     tractor Testing, or 52.209–4, First Arti-                  Testing; and
                                                                     cle Approval—Government Testing);                            (3) Request that the activity inform
                                                                       (f) Contain a delivery schedule for                      the contract administration office of
                                                                     the production quantity (see 11.403).                      the date when testing or evaluation
                                                                     The delivery schedule may—                                 will be completed.
                                                                       (1) Be the same whether or not test-                       (b) The Government laboratory or
                                                                     ing and approval is waived; or                             other activity responsible for first arti-
                                                                       (2) Provide for earlier delivery when                    cle testing or evaluation shall inform
                                                                     testing and approval is waived and the                     the contracting office whether to ap-
                                                                     Government desires earlier delivery. In                    prove, conditionally approve, or dis-
                                                                     the latter case, any resulting difference                  approve the first article. The con-
                                                                     in delivery schedules shall not be a fac-                  tracting officer shall then notify the
                                                                     tor in evaluation for award. The clause                    contractor of the action taken and fur-
                                                                     at 52.209–4, First Article Approval—                       nish a copy of the notice to the con-
                                                                     Government Testing, shall contain the                      tract administration office. The notice
                                                                     delivery schedule for the first article;                   shall include the first article shipment
                                                                       (g) Provide for the submission of con-                   number, when available, and the appli-
                                                                     tract numbers, if any, to document the                     cable line item number. Any changes in
                                                                     offeror’s eligibility under paragraph (c)                  the drawings, designs, or specifications
                                                                     of this section;                                           determined by the contracting officer
                                                                       (h) State whether the approved first                     to be necessary shall be made under
                                                                     article will serve as a manufacturing                      the Changes clause, and not by the no-
                                                                     standard;                                                  tice of approval, conditional approval,
                                                                       (i) Include, when the Government is                      or disapproval furnished the con-
                                                                     responsible for first article testing, the                 tractor.
                                                                     Government’s estimated testing costs
                                                                                                                                [48 FR 42142, Sept. 19, 1983, as amended at 82
                                                                     as a factor for use in evaluating offers                   FR 4713, Jan. 13, 2017]
                                                                     (when appropriate); and
                                                                       (j) Inform offerors that the prices for                  9.308   Contract clauses.
                                                                     first articles and first article tests in
                                                                     relation to production quantities shall                    9.308–1 Testing performed by the con-
                                                                     not be materially unbalanced (see                               tractor.
                                                                     15.404–1(g)) if first article test items or                  (a)(1) The contracting officer shall
                                                                     tests are to be separately priced.                         insert the clause at 52.209–3, First Arti-
                                                                     [48 FR 42142, Sept. 19, 1983, as amended at 54             cle Approval—Contractor Testing, in
                                                                     FR 34753, Aug. 21, 1989; 55 FR 25527, June 21,             solicitations and contracts when a
                                                                     1990; 60 FR 48237, Sept. 18, 1995; 62 FR 51270,            fixed-price contract is contemplated
                                                                     Sept. 30, 1997; 84 FR 19845, May 6, 2019]                  and it is intended that the contract re-
                                                                                                                                quire—
                                                                     9.307 Government administration pro-                         (i) First article approval; and
                                                                         cedures.




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                                                                                  (ii) That the contractor be required
                                                                       (a) Before the contractor ships the                      to conduct the first article testing.
                                                                     first article, or the first article test re-                 (2) If it is intended that the con-
                                                                     port, to the Government laboratory or                      tractor be required to produce the first

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                                                                     Federal Acquisition Regulation                                                                       9.400

                                                                     article and the production quantity at                     commence production before first arti-
                                                                     the same facility, the contracting offi-                   cle approval, the contracting officer
                                                                     cer shall use the clause with its Alter-                   shall use the basic clause with its Al-
                                                                     nate I.                                                    ternate II.
                                                                       (3) If it is necessary to authorize the                    (b)(1) The contracting officer shall
                                                                     contractor to purchase material or to                      insert a clause substantially the same
                                                                     commence production before first arti-                     as the clause at 52.209–4, First Article
                                                                     cle approval, the contracting officer                      Approval—Government Testing, in so-
                                                                     shall use the clause with its Alternate
                                                                                                                                licitations and contracts when a cost-
                                                                     II.
                                                                       (b)(1) The contracting officer shall                     reimbursement        contract   is   con-
                                                                     insert a clause substantially the same                     templated and it is intended that the
                                                                     as the clause at 52.209–3, First Article                   contract require first article approval
                                                                     Approval—Contractor Testing, in so-                        and that the Government be respon-
                                                                     licitations and contracts when a cost-                     sible for conducting the first article
                                                                     reimbursement        contract   is   con-                  test.
                                                                     templated and it is intended that the                        (2) If it is intended that the con-
                                                                     contract require—                                          tractor be required to produce the first
                                                                       (i) First article approval; and                          article and the production quantity at
                                                                       (ii) That the contractor be required                     the same facility, the contracting offi-
                                                                     to conduct the first article test.                         cer shall use a clause substantially the
                                                                       (2) If it is intended that the con-                      same as the clause at 52.209–4, First Ar-
                                                                     tractor be required to produce the first                   ticle Approval—Government Testing,
                                                                     article and the production quantity at                     with its Alternate I.
                                                                     the same facility, the contracting offi-                     (3) If it is necessary to authorize the
                                                                     cer shall use a clause substantially the                   contractor to purchase material or to
                                                                     same as the clause at 52.209–3, First Ar-                  commence production before first arti-
                                                                     ticle Approval—Contractor Testing,
                                                                                                                                cle approval, the contracting officer
                                                                     with its Alternate I.
                                                                                                                                shall use a clause substantially the
                                                                       (3) If it is necessary to authorize the
                                                                                                                                same as the clause at 52.209–4, First Ar-
                                                                     contractor to purchase material or to
                                                                     commence production before first arti-                     ticle Approval—Government Testing,
                                                                     cle approval, the contracting officer                      with its Alternate II.
                                                                     shall use a clause substantially the
                                                                     same as the clause at 52.209–3, First Ar-                       Subpart 9.4—Debarment,
                                                                     ticle Approval—Contractor Testing,                             Suspension, and Ineligibility
                                                                     with its Alternate II.
                                                                                                                                9.400   Scope of subpart.
                                                                     [48 FR 42142, Sept. 19, 1983, as amended at 84
                                                                     FR 19845, May 6, 2019]                                       (a) This subpart—
                                                                                                                                  (1) Prescribes policies and procedures
                                                                     9.308–2 Testing performed by the Gov-                      governing the debarment and suspen-
                                                                         ernment.
                                                                                                                                sion of contractors by agencies for the
                                                                       (a)(1) The contracting officer shall                     causes given in 9.406–2 and 9.407–2;
                                                                     insert the clause at 52.209–4, First Arti-                   (2) Provides for the listing of contrac-
                                                                     cle Approval—Government Testing, in                        tors debarred, suspended, proposed for
                                                                     solicitations and contracts when a                         debarment, and declared ineligible (see
                                                                     fixed-price contract is contemplated
                                                                                                                                the definition of ineligible in 2.101); and
                                                                     and it is intended that the contract re-
                                                                     quire first article approval and that                        (3) Sets forth the consequences of
                                                                     the Government will be responsible for                     this listing.
                                                                     conducting the first article test.                           (b) Although this subpart does cover
                                                                       (2) If it is intended that the con-                      the listing of ineligible contractors
                                                                     tractor be required to produce the first                   (9.404) and the effect of this listing
                                                                     article and the production quantity at                     (9.405), it does not prescribe policies
                                                                     the same facility, the contracting offi-                   and procedures governing declarations




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     cer shall use the basic clause with its                    of ineligibility except for contractors
                                                                     Alternate I.                                               that have been declared ineligible pur-
                                                                       (3) If it is necessary to authorize the                  suant to 10 U.S.C. 983 (see 9.110, and
                                                                     contractor to purchase material or to                      9.405–1(b)).

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                                                                     9.401                                                                  48 CFR Ch. 1 (10–1–25 Edition)

                                                                       (c) For Federal Acquisition Supply                       the National Defense Authorization
                                                                     Chain Security Act (FASCSA) orders,                        Act for Fiscal Year 2009 (Pub. L. 110–
                                                                     see subpart 4.23.                                          417) (31 U.S.C. 6101 note), shall resolve
                                                                     [48 FR 42142, Sept. 19, 1983, as amended at 54
                                                                                                                                the lead agency issue and coordinate
                                                                     FR 19814, May 8, 1989; 66 FR 2128, Jan. 10,                such resolution among all interested
                                                                     2001; 85 FR 67621, Oct. 23, 2020; 86 FR 3678,              agencies prior to the initiation of any
                                                                     Jan. 14, 2021; 88 FR 69513, Oct. 5, 2023]                  suspension, debarment, or related ad-
                                                                                                                                ministrative action by any agency.
                                                                     9.401 Applicability.                                         (e) Agencies shall establish appro-
                                                                       In accordance with Public Law 103–                       priate procedures to implement the
                                                                     355, Section 2455 (31 U.S.C. 6101, note),                  policies and procedures of this subpart.
                                                                     and Executive Order 12689, any debar-
                                                                                                                                [48 FR 42142, Sept. 19, 1983, as amended at 54
                                                                     ment, suspension or other Government-                      FR 19814, May 8, 1989; 74 FR 31565, July 1,
                                                                     wide exclusion initiated under the Non-                    2009; 79 FR 24199, Apr. 29, 2014; 90 FR 511, Jan.
                                                                     procurement Common Rule imple-                             3, 2025]
                                                                     menting Executive Order 12549 on or
                                                                     after August 25, 1995 shall be recog-                      9.403   Definitions.
                                                                     nized by and effective for Executive
                                                                                                                                  As used in this subpart—
                                                                     Branch agencies as a debarment or sus-
                                                                     pension under this subpart. Similarly,                       Administrative agreement means an
                                                                     any debarment, suspension, proposed                        agreement between an agency sus-
                                                                     debarment or other Governmentwide                          pending and debarring official and the
                                                                     exclusion initiated on or after August                     contractor used to resolve a suspension
                                                                     25, 1995 under this subpart shall also be                  or debarment proceeding, or a poten-
                                                                     recognized by and effective for those                      tial suspension or debarment pro-
                                                                     agencies and participants as an exclu-                     ceeding.
                                                                     sion under the Nonprocurement Com-                           Affiliates. (1) Business concerns, orga-
                                                                     mon Rule.                                                  nizations, or individuals are affiliates
                                                                                                                                of each other if, directly or indirectly—
                                                                     [60 FR 33065, June 26, 1995, as amended at 84
                                                                                                                                  (i) Either one controls or has the
                                                                     FR 19845, May 6, 2019]
                                                                                                                                power to control the other; or
                                                                     9.402 Policy.                                                (ii) A third party controls or has the
                                                                                                                                power to control both.
                                                                       (a) Agencies shall solicit offers from,
                                                                     award contracts to, and consent to sub-                      (2) Indicia of control include, but are
                                                                     contracts with responsible contractors                     not limited to, interlocking manage-
                                                                     only. Debarment and suspension are                         ment or ownership, identity of inter-
                                                                     discretionary actions that, taken in ac-                   ests among family members, shared fa-
                                                                     cordance with this subpart, are appro-                     cilities and equipment, common use of
                                                                     priate means to effectuate this policy.                    employees, or a business entity orga-
                                                                       (b) The serious nature of debarment                      nized following the debarment, suspen-
                                                                     and suspension requires that these                         sion, or proposed debarment of a con-
                                                                     remedies be imposed only in the public                     tractor which has the same or similar
                                                                     interest for the Government’s protec-                      management, ownership, or principal
                                                                     tion and not for purposes of punish-                       employees as the contractor that was
                                                                     ment. Agencies shall impose debar-                         debarred, suspended, or proposed for
                                                                     ment or suspension to protect the Gov-                     debarment.
                                                                     ernment’s interest and only for the                          Agency means any executive depart-
                                                                     causes and in accordance with the pro-                     ment, military department or defense
                                                                     cedures in this subpart.                                   agency, or other agency or independent
                                                                       (c) Agencies are encouraged to estab-                    establishment of the executive branch.
                                                                     lish methods and procedures for coordi-                      Civil judgment means the disposition
                                                                     nating their debarment or suspension                       of a civil action by any court of com-
                                                                     actions.                                                   petent jurisdiction, whether by verdict,
                                                                       (d) When more than one agency has                        decision, settlement, stipulation, other
                                                                     an interest in the debarment or suspen-                    disposition that creates a civil liability




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     sion of a contractor, the Interagency                      for the complained of wrongful acts, or
                                                                     Suspension and Debarment Committee,                        a final determination of liability under
                                                                     established under Executive Order                          the Program Fraud Civil Remedies Act
                                                                     12549, and authorized by section 873 of                    of 1986 (31 U.S.C. 3801–3812).

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                                                                     Federal Acquisition Regulation                                                                       9.404

                                                                       Contractor means any individual or                       clusion or ineligibility. The letter is
                                                                     other legal entity that—                                   issued at the discretion of the sus-
                                                                       (1) Directly or indirectly (e.g.,                        pending and debarring official. The let-
                                                                     through an affiliate), submits offers for                  ter is not a mandatory step in the sus-
                                                                     or is awarded, or reasonably may be ex-                    pension or debarment process.
                                                                     pected to submit offers for or be award-                     Unfair trade practices means the com-
                                                                     ed, a Government contract, including a                     mission of any of the following acts by
                                                                     contract for carriage under Govern-                        a contractor:
                                                                     ment or commercial bills of lading, or                       (1) A violation of section 337 of the
                                                                     a subcontract under a Government con-                      Tariff Act of 1930 (19 U.S.C. 1337) as de-
                                                                     tract; or                                                  termined by the International Trade
                                                                       (2) Conducts business, or reasonably                     Commission.
                                                                     may be expected to conduct business,                         (2) A violation, as determined by the
                                                                     with the Government as an agent or                         Secretary of Commerce, of any agree-
                                                                     representative of another contractor.                      ment of the group known as the ‘‘Co-
                                                                       Conviction means—                                        ordination Committee’’ for purposes of
                                                                       (1) A judgment or any other deter-                       the Export Administration Act of 1979
                                                                     mination of guilt of a criminal offense                    (50 U.S.C. App. 2401, et seq.) or any simi-
                                                                     by any court of competent jurisdiction,                    lar bilateral or multilateral export
                                                                     whether entered upon a verdict or plea,                    control agreement.
                                                                     including a plea of nolo contendere; or                      (3) A knowingly false statement re-
                                                                       (2) Any other resolution that is the                     garding a material element of a certifi-
                                                                     functional equivalent of a judgment es-                    cation concerning the foreign content
                                                                     tablishing a criminal offense by a court                   of an item of supply, as determined by
                                                                     of competent jurisdiction, including                       the Secretary of the Department or the
                                                                     probation before judgment and deferred                     head of the agency to which such cer-
                                                                     prosecution. A disposition without the                     tificate was furnished.
                                                                     participation of the court is the func-                      Voluntary exclusion means a contrac-
                                                                     tional equivalent of a judgment only if                    tor’s written agreement to be excluded
                                                                     it includes an admission of guilt.                         for a period under the terms of a settle-
                                                                       Indictment means indictment for a                        ment between the contractor and the
                                                                     criminal offense. An information or                        suspending and debarring official of
                                                                     other filing by competent authority                        one or more agencies. A voluntary ex-
                                                                     charging a criminal offense is given the                   clusion must have Governmentwide ef-
                                                                     same effect as an indictment.                              fect.
                                                                       Legal proceedings means any civil ju-
                                                                     dicial proceeding to which the Govern-                     [48 FR 42142, Sept. 19, 1983, as amended at 54
                                                                     ment is a party or any criminal pro-                       FR 19814, May 8, 1989; 56 FR 15149, Apr. 15,
                                                                     ceeding. The term includes appeals                         1991; 59 FR 11372, Mar. 10, 1994; 60 FR 33065,
                                                                     from such proceedings.                                     June 26, 1995; 66 FR 2128, Jan. 10, 2001; 84 FR
                                                                                                                                19845, May 6, 2019; 90 FR 511, Jan. 3, 2025]
                                                                       Nonprocurement Common Rule means
                                                                     the procedures used by Federal Execu-                      9.404 Exclusions in the System for
                                                                     tive Agencies to suspend, debar, or ex-                        Award Management.
                                                                     clude individuals or entities from par-
                                                                     ticipation in nonprocurement trans-                          (a) The General Services Administra-
                                                                     actions under Executive Order 12549.                       tion (GSA)—
                                                                     Examples of nonprocurement trans-                            (1) Operates the web-based System
                                                                     actions are grants, cooperative agree-                     for Award Management (SAM), which
                                                                     ments, scholarships, fellowships, con-                     contains exclusion records; and
                                                                     tracts of assistance, loans, loan guar-                      (2) Provides technical assistance to
                                                                     antees, subsidies, insurance, payments                     Federal agencies in the use of SAM.
                                                                     for specified use, and donation agree-                       (b) An exclusion record in SAM con-
                                                                     ments. See 2 CFR part 180 and agency                       tains the—
                                                                     enacting regulations in 2 CFR subtitle                       (1) Names and addresses of the enti-
                                                                     B.                                                         ties debarred, suspended, proposed for




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                       Pre-notice letter means a written cor-                   debarment, voluntarily excluded, de-
                                                                     respondence issued to a contractor in a                    clared ineligible, or excluded or dis-
                                                                     suspension or debarment matter, which                      qualified under the nonprocurement
                                                                     does not immediately result in an ex-                      common rule, with cross-references

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                                                                     9.405                                                                  48 CFR Ch. 1 (10–1–25 Edition)

                                                                     when more than one name is involved                          (7) Contact GSA for technical assist-
                                                                     in a single action;                                        ance with SAM, via the support email
                                                                       (2) Name of the agency or other au-                      address or on the technical support
                                                                     thority taking the action;                                 phone line.
                                                                       (3) Cause for the action (see 9.406–2                      (d) SAM is available via https://
                                                                     and 9.407–2 for causes authorized under                    www.sam.gov
                                                                     this subpart) or other statutory or reg-                   [78 FR 37678, June 21, 2013, as amended at 81
                                                                     ulatory authority;                                         FR 67739, Sept. 30, 2016; 83 FR 48696, Sept. 26,
                                                                       (4) Effect of the action;                                2018; 90 FR 512, Jan. 3, 2025]
                                                                       (5) Termination date for each listing;
                                                                                                                                9.405 Effect of listing.
                                                                       (6) Unique Entity Identifier;
                                                                       (7) Social Security Number (SSN),                          (a) Contractors debarred, suspended,
                                                                     Employer Identification Number (EIN),                      proposed for debarment, or voluntarily
                                                                     or other Taxpayer Identification Num-                      excluded, are excluded from receiving
                                                                     ber (TIN), if available; and                               contracts, and agencies shall not so-
                                                                       (8) Name and telephone number of                         licit offers from, award contracts to, or
                                                                     the agency point of contact for the ac-                    consent to subcontracts with these
                                                                     tion.                                                      contractors, unless the agency head de-
                                                                       (c) Each agency shall—                                   termines that there is a compelling
                                                                                                                                reason for such action (see 9.405–1(a)(2),
                                                                       (1) Identify the individual(s) respon-
                                                                                                                                9.405–2,    9.406–1(d),   9.407–1(d), and
                                                                     sible for entering and updating exclu-
                                                                                                                                26.505(e)). Contractors debarred, sus-
                                                                     sions data in SAM and assign the ap-
                                                                                                                                pended, proposed for debarment, or vol-
                                                                     propriate roles;
                                                                                                                                untarily excluded, are also excluded
                                                                       (2) Remove the exclusion roles in
                                                                                                                                from conducting business with the
                                                                     SAM when the individual leaves the or-
                                                                                                                                Government as agents or representa-
                                                                     ganization or changes functions;
                                                                                                                                tives of other contractors.
                                                                       (3) For each exclusion, including each                     (b) Contractors and other entities
                                                                     voluntary exclusion, accomplished by                       that have an active exclusion record in
                                                                     the agency—                                                SAM because they have been declared
                                                                       (i) Enter the information required by                    ineligible on the basis of statutory or
                                                                     paragraph (b) of this section within 3                     other regulatory procedures are ex-
                                                                     working days after the action becomes                      cluded from receiving contracts, and if
                                                                     effective;                                                 applicable, subcontracts, under the
                                                                       (ii) Determine whether it is legally                     conditions and for the period set forth
                                                                     permitted to enter the SSN, EIN, or                        in the statute or regulation. Agencies
                                                                     other TIN, under agency authority to                       shall not solicit offers from, award con-
                                                                     suspend or debar; and                                      tracts to, or consent to subcontracts
                                                                       (iii) Update the exclusion record in                     with these contractors under those
                                                                     SAM, generally within 5 working days                       conditions and for that period.
                                                                     after modifying or rescinding an ac-                         (c) Agencies shall not enter into,
                                                                     tion;                                                      renew, or extend contracts with con-
                                                                       (4) In accordance with internal reten-                   tractors that have been declared ineli-
                                                                     tion procedures, maintain records re-                      gible pursuant to 22 U.S.C. 2593e.
                                                                     lating to each debarment, suspension,                        (d) Contractors debarred, suspended,
                                                                     proposed debarment, or voluntary ex-                       proposed for debarment, or voluntarily
                                                                     clusion taken or entered into by the                       excluded, are excluded from acting as
                                                                     agency;                                                    individual sureties (see part 28).
                                                                       (5) Establish procedures to ensure                         (e)(1) After the opening of bids or re-
                                                                     that the agency does not solicit offers                    ceipt of proposals or quotes, the con-
                                                                     from, award contracts to, or consent to                    tracting officer shall review the exclu-
                                                                     subcontracts with contractors who                          sion records in SAM.
                                                                     have an active exclusion record in                           (2) Bids received from any listed con-
                                                                     SAM, except as otherwise provided in                       tractor in response to an invitation for
                                                                     this subpart;                                              bids shall be entered on the abstract of




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                       (6) Direct inquiries concerning listed                   bids, and rejected unless the agency
                                                                     contractors and other entities to the                      head determines in writing that there
                                                                     agency or other authority that took                        is a compelling reason to consider the
                                                                     the action; and                                            bid.

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                                                                     Federal Acquisition Regulation                                                                       9.405–2

                                                                       (3) Proposals, quotations, or offers re-                 chase agreements, or basic ordering
                                                                     ceived from any listed contractor shall                    agreements; or
                                                                     not be evaluated for award or included                       (iii) Add new work, exercise options,
                                                                     in the competitive range, nor shall dis-                   or otherwise extend the duration of
                                                                     cussions be conducted with a listed of-                    current contracts or orders.
                                                                     feror during a period of ineligibility,                      (b) Ineligible contractors. A covered
                                                                     unless the agency head determines, in                      agency, as defined in 9.110–1, shall ter-
                                                                     writing, that there is a compelling rea-                   minate existing contracts and shall not
                                                                     son to do so. If the period of ineligi-                    place new orders or award new con-
                                                                     bility expires or is terminated prior to                   tracts with contractors that have been
                                                                     award, the contracting officer may, but                    declared ineligible pursuant to 10
                                                                     is not required to, consider such pro-                     U.S.C. 983 (see 9.110), except for con-
                                                                     posals, quotations, or offers.                             tracts at or below the simplified acqui-
                                                                       (4) Immediately prior to award, the                      sition threshold or contracts for the
                                                                     contracting officer shall again review                     acquisition of commercial products and
                                                                     the exclusion records in SAM to ensure                     commercial services.
                                                                     that no award is made to a listed con-                     [85 FR 67621, Oct. 23, 2020, as amended at 86
                                                                     tractor.                                                   FR 61021, Nov. 4, 2021; 90 FR 512, Jan. 3, 2025]
                                                                     [48 FR 42142, Sept. 19, 1983, as amended at 52
                                                                     FR 9038, Mar. 20, 1987; 54 FR 19814, May 8,                9.405–2 Restrictions       on      subcon-
                                                                     1989; 54 FR 48982, Nov. 28, 1989; 55 FR 21707,                 tracting.
                                                                     May 25, 1990; 56 FR 29127, June 25, 1991; 59 FR              (a) When a contractor debarred, sus-
                                                                     67033, Dec. 28, 1994; 60 FR 33065, June 26, 1995;          pended, proposed for debarment, or vol-
                                                                     65 FR 16286, Mar. 27, 2000; 68 FR 69251, Dec. 11,          untarily excluded, is proposed as a sub-
                                                                     2003; 69 FR 76349, Dec. 20, 2004; 78 FR 37678,
                                                                     June 21, 2013; 83 FR 28148, June 15, 2018; 83 FR
                                                                                                                                contractor for any subcontract subject
                                                                     48696, Sept. 26, 2018; 85 FR 67621, Oct. 23, 2020;         to Government consent (see subpart
                                                                     86 FR 3678, Jan. 14, 2021; 89 FR 30237, Apr. 22,           44.2), contracting officers shall not con-
                                                                     2024; 90 FR 512, Jan. 3, 2025]                             sent to subcontracts with such con-
                                                                                                                                tractors unless the agency head states
                                                                     9.405–1 Continuation of current con-                       in writing the compelling reasons for
                                                                          tracts.                                               this approval action. (See 9.405 con-
                                                                       (a) Contractors debarred, suspended,                     cerning declarations of ineligibility af-
                                                                     proposed for debarment, or voluntarily ex-                 fecting subcontracting.)
                                                                     cluded. (1) Notwithstanding the debar-                       (b) The Government suspends or
                                                                     ment, suspension, proposed debarment,                      debars contractors to protect the Gov-
                                                                     or voluntary exclusion, of a contractor,                   ernment’s interests. Contractors are
                                                                     agencies may continue contracts or                         prohibited from entering into any sub-
                                                                     subcontracts in existence at the time                      contract in excess of $45,000, other than
                                                                     the contractor was debarred, sus-                          a subcontract for a commercially
                                                                     pended, proposed for debarment, or vol-                    available off-the-shelf item, with a con-
                                                                     untarily excluded, unless unless the                       tractor that has been debarred, sus-
                                                                     agency head directs otherwise. A deci-                     pended, proposed for debarment, or vol-
                                                                     sion as to the type of termination ac-                     untarily excluded, unless there is a
                                                                     tion, if any, to be taken should be                        compelling reason to do so. If a con-
                                                                     made only after review by agency con-                      tractor intends to enter into a sub-
                                                                     tracting and technical personnel and                       contract in excess of $45,000, other than
                                                                     by counsel to ensure the propriety of                      a subcontract for a commercially
                                                                     the proposed action.                                       available off-the-shelf item, with a
                                                                       (2) For contractors debarred, sus-                       party that is debarred, suspended, pro-
                                                                     pended, proposed for debarment, or vol-                    posed for debarment, or voluntarily ex-
                                                                     untarily excluded, unless the agency                       cluded, as evidenced by the party’s
                                                                     head makes a written determination of                      having an active exclusion record in
                                                                     the compelling reasons for doing so, or-                   SAM (see 9.404), a corporate officer or
                                                                     dering activities shall not—                               designee of the contractor is required
                                                                       (i) Place orders exceeding the guar-                     by operation of the clause at 52.209–6,




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     anteed minimum under indefinite                            Protecting the Government’s Interest
                                                                     quantity contracts;                                        when Subcontracting with Contractors
                                                                       (ii) Place orders under Federal Sup-                     Debarred, Suspended, Proposed for De-
                                                                     ply Schedule contracts, blanket pur-                       barment, or Voluntarily Excluded, to

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                                                                     9.406                                                                  48 CFR Ch. 1 (10–1–25 Edition)

                                                                     notify the contracting officer, in writ-                   decision, the suspending and debarring
                                                                     ing, before entering into such sub-                        official should consider factors such as
                                                                     contract. For contracts for the acquisi-                   the following (some of the factors
                                                                     tion of commercial products, the noti-                     below could apply to individuals such
                                                                     fication requirement applies only for                      as contractors that are individuals, and
                                                                     first-tier subcontracts. For all other                     are so marked):
                                                                     contracts, the notification requirement                      (1) Whether the contractor had effec-
                                                                     applies to subcontracts at any tier. The                   tive standards of conduct and internal
                                                                     notice must provide the following:                         control systems in place at the time of
                                                                       (1) The name of the subcontractor;                       the activity which constitutes cause
                                                                       (2) The contractor’s knowledge of the                    for debarment or had adopted such pro-
                                                                     reasons for the subcontractor having                       cedures prior to any Government inves-
                                                                     an active exclusion record in SAM;                         tigation of the activity cited as a cause
                                                                       (3) The compelling reason(s) for doing                   for debarment.
                                                                     business with the subcontractor not-                         (2) Whether the contractor (including
                                                                     withstanding its having an active ex-                      an individual) brought the activity
                                                                     clusion record in SAM; and                                 cited as a cause for debarment to the
                                                                       (4) The systems and procedures the                       attention of the appropriate Govern-
                                                                     contractor has established to ensure                       ment agency in a timely manner.
                                                                     that it is fully protecting the Govern-                      (3) Whether the contractor has fully
                                                                     ment’s interests when dealing with                         investigated the circumstances sur-
                                                                     such subcontractor in view of the spe-                     rounding the cause for debarment (or
                                                                     cific basis for the party’s debarment,                     the individual cooperated with the in-
                                                                     suspension, proposed debarment, or                         vestigation) and, if so, made the result
                                                                     voluntary exclusion.                                       of the investigation available to the
                                                                       (c) The contractor’s compliance with                     suspending and debarring official.
                                                                     the requirements of 52.209–6 will be re-                     (4) Whether the contractor (including
                                                                     viewed during Contractor Purchasing                        an individual) cooperated fully with
                                                                     System Reviews (see subpart 44.3).                         Government agencies during the inves-
                                                                     [54 FR 19815, May 8, 1989, as amended at 56                tigation and any court or administra-
                                                                     FR 29127, June 25, 1991; 59 FR 67033, Dec. 28,             tive action.
                                                                     1994; 60 FR 33066, June 26, 1995; 60 FR 48237,               (5) Whether the contractor (including
                                                                     Sept. 18, 1995; 68 FR 69251, Dec. 11, 2003; 69 FR          an individual) has paid or has agreed to
                                                                     76349, Dec. 20, 2004; 71 FR 57366, Sept. 28, 2006;         pay all criminal, civil, and administra-
                                                                     75 FR 77740, Dec. 13, 2010; 76 FR 39238, July 5,           tive liability for the improper activity,
                                                                     2011; 78 FR 37678, June 21, 2013; 80 FR 38296,             including any investigative or adminis-
                                                                     July 2, 2015; 83 FR 48696, Sept. 26, 2018; 85 FR
                                                                     27090, May 6, 2020; 86 FR 3678, Jan. 14, 2021; 86
                                                                                                                                trative costs incurred by the Govern-
                                                                     FR 61021, Nov. 4, 2021; 90 FR 512, Jan. 3, 2025;           ment, and has made or agreed to make
                                                                     90 FR 41877, Aug. 27, 2025]                                full restitution.
                                                                                                                                  (6) Whether the contractor has taken
                                                                     9.406       Debarment.                                     appropriate disciplinary action against
                                                                                                                                the individuals responsible for the ac-
                                                                     9.406–1 General.                                           tivity which constitutes cause for de-
                                                                       (a) It is the suspending and debarring                   barment.
                                                                     official’s responsibility to determine                       (7) Whether the contractor (including
                                                                     whether debarment is in the Govern-                        an individual) has implemented or
                                                                     ment’s interest. The suspending and                        agreed to implement remedial meas-
                                                                     debarring official may, in the public in-                  ures, including any identified by the
                                                                     terest, debar a contractor for any of                      Government.
                                                                     the causes in 9.406–2, using the proce-                      (8)(i) Whether the contractor has in-
                                                                     dures in 9.406–3. The existence of a                       stituted or agreed to institute new or
                                                                     cause for debarment, however, does not                     revised review and control procedures,
                                                                     necessarily require that the contractor                    ethics training, or other relevant train-
                                                                     be debarred; the seriousness of the con-                   ing programs.
                                                                     tractor’s acts or omissions and any re-                      (ii) For an individual, whether the in-




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     medial measures, mitigating factors,                       dividual has attended relevant remedi-
                                                                     or aggravating factors should be con-                      ation training.
                                                                     sidered in making any debarment deci-                        (9) Whether the contractor (including
                                                                     sion. Before arriving at any debarment                     an individual) has had adequate time

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                                                                     Federal Acquisition Regulation                                                                       9.406–2

                                                                     to eliminate the circumstances that                        in paragraph (a) of this section is not
                                                                     led to the cause for debarment.                            necessarily determinative of a contrac-
                                                                       (10)(i) Whether the contractor’s man-                    tor’s present responsibility. Accord-
                                                                     agement recognizes, accepts, and un-                       ingly, if a cause for debarment exists,
                                                                     derstands the seriousness of the mis-                      the contractor has the burden of dem-
                                                                     conduct giving rise to the cause for de-                   onstrating, to the satisfaction of the
                                                                     barment and has implemented pro-                           suspending and debarring official, its
                                                                     grams to prevent recurrence.                               present responsibility and that debar-
                                                                       (ii) For an individual, whether the in-                  ment is not necessary.
                                                                     dividual recognizes, accepts, and un-                        (c) Debarment constitutes debarment
                                                                     derstands the seriousness of the mis-                      of all divisions or other organizational
                                                                     conduct giving rise to the cause for de-                   elements of the contractor, unless the
                                                                     barment and has adopted practices to                       debarment decision is limited by its
                                                                     prevent recurrence.                                        terms to specific divisions, organiza-
                                                                       (11) Whether the contractor (includ-                     tional elements, or commodities. The
                                                                     ing an individual) has a pattern or                        suspending and debarring official may
                                                                     prior history of wrongdoing, the fre-                      extend the debarment decision to in-
                                                                     quency of incidents and/or duration of                     clude any affiliates of the contractor if
                                                                     the wrongdoing, and the actual or po-                      they are—
                                                                     tential harm or impact that results, or                      (1) Specifically named; and
                                                                     may result, from the wrongdoing.                             (2) Given written notice of the pro-
                                                                       (12) Whether and to what extent the                      posed debarment and an opportunity to
                                                                     contractor (including an individual)                       respond (see 9.406–3(c)).
                                                                     planned, initiated, or carried out the                       (d) A contractor’s debarment, or pro-
                                                                     wrongdoing, and the kind of positions                      posed debarment, shall be effective
                                                                     within the contractor’s organization                       throughout the executive branch of the
                                                                     held by the individual involved in the                     Government, unless the agency head or
                                                                     wrongdoing.                                                a designee (except see 26.505(e)) states
                                                                       (13) Whether the wrongdoing was per-                     in writing the compelling reasons justi-
                                                                     vasive within the contractor’s organi-                     fying continued business dealings be-
                                                                     zation.                                                    tween that agency and the contractor.
                                                                       (14) Whether the individual or the                         (e)(1) When the suspending and debar-
                                                                     contractor’s principals tolerated the                      ring official has authority to debar
                                                                     offense.                                                   contractors from both contracts pursu-
                                                                       (15) Whether the contractor (includ-                     ant to the Federal Acquisition Regula-
                                                                     ing an individual) is or has been ex-                      tion in this chapter and contracts for
                                                                     cluded or disqualified by an agency of                     the purchase of Federal personal prop-
                                                                     the Federal Government or has not                          erty pursuant to the Federal Manage-
                                                                     been allowed to participate in State or                    ment Regulation (FMR) in 41 CFR part
                                                                     local contracts or assistance agree-                       102–38, that official shall consider si-
                                                                     ments on a basis of conduct similar to                     multaneously debarring the contractor
                                                                     one or more of the causes for debar-                       from the award of acquisition con-
                                                                     ment specified in this subpart.                            tracts and from the purchase of Fed-
                                                                       (16) Whether the contractor (includ-                     eral personal property.
                                                                                                                                  (2) When debarring a contractor from
                                                                     ing an individual) has entered into an
                                                                                                                                the award of acquisition contracts and
                                                                     administrative agreement with a Fed-
                                                                                                                                from the purchase of Federal personal
                                                                     eral agency or a similar agreement
                                                                                                                                property, the debarment notice shall so
                                                                     with a State or local government that
                                                                                                                                indicate and the appropriate FAR and
                                                                     is not Governmentwide but is based on
                                                                                                                                FMR citations shall be included.
                                                                     conduct similar to one or more of the
                                                                     causes for debarment specified in this                     [90 FR 512, Jan. 3, 2025]
                                                                     subpart.
                                                                       (17) Whether there are any other fac-                    9.406–2 Causes for debarment.
                                                                     tors to consider for the contractor (in-                     The suspending and debarring official
                                                                     cluding an individual) appropriate to                      may debar—




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     the circumstances of a particular case.                      (a) A contractor for a conviction of
                                                                       (b) The existence or nonexistence of                     or civil judgment for—
                                                                     any aggravating or mitigating factors                        (1) Commission of fraud or a criminal
                                                                     or remedial measures such as set forth                     offense in connection with—

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                                                                     9.406–2                                                                48 CFR Ch. 1 (10–1–25 Edition)

                                                                       (i) Obtaining;                                           made in the United States or its out-
                                                                       (ii) Attempting to obtain; or                            lying areas (see Section 202 of the De-
                                                                       (iii) Performing a public contract or                    fense Production Act (Public Law 102–
                                                                     subcontract;                                               558)).
                                                                       (2) Violation of Federal or State anti-                     (iv) Commission of an unfair trade
                                                                     trust statutes relating to the submis-                     practice as defined in 9.403 (see Section
                                                                     sion of offers;                                            201 of the Defense Production Act (Pub-
                                                                       (3) Commission of embezzlement,                          lic Law 102–558)).
                                                                     theft, forgery, bribery, falsification or                     (v) Delinquent Federal taxes in an
                                                                     destruction of records, making false                       amount that exceeds the threshold at
                                                                     statements, tax evasion, violating Fed-                    9.104–5(a)(2).
                                                                     eral criminal tax laws, or receiving                          (A) Federal taxes are considered de-
                                                                     stolen property;                                           linquent for purposes of this provision
                                                                       (4) Intentionally affixing a label                       if both of the following criteria apply:
                                                                     bearing a ‘‘Made in America’’ inscrip-                        (1) The tax liability is finally deter-
                                                                     tion (or any inscription having the                        mined. The liability is finally deter-
                                                                     same meaning) to a product sold in or                      mined if it has been assessed. A liabil-
                                                                     shipped to the United States or its out-                   ity is not finally determined if there is
                                                                     lying areas, when the product was not                      a pending administrative or judicial
                                                                     made in the United States or its out-                      challenge. In the case of a judicial
                                                                     lying areas (see Section 202 of the De-                    challenge to the liability, the liability
                                                                     fense Production Act (Public Law 102–                      is not finally determined until all judi-
                                                                     558)); or                                                  cial appeal rights have been exhausted.
                                                                       (5) Commission of any other offense                         (2) The taxpayer is delinquent in mak-
                                                                     indicating a lack of business integrity                    ing payment. A taxpayer is delinquent if
                                                                     or business honesty that seriously and                     the taxpayer has failed to pay the tax
                                                                     directly affects the present responsi-                     liability when full payment was due
                                                                     bility of a Government contractor or                       and required. A taxpayer is not delin-
                                                                     subcontractor.                                             quent in cases where enforced collec-
                                                                       (b)(1) A contractor, based upon a pre-                   tion action is precluded.
                                                                     ponderance of the evidence, for any of                        (B) Examples. (1) The taxpayer has re-
                                                                     the following—                                             ceived a statutory notice of deficiency,
                                                                       (i) Violation of the terms of a Gov-                     under I.R.C. § 6212, which entitles the
                                                                     ernment contract or subcontract so se-                     taxpayer to seek Tax Court review of a
                                                                     rious as to justify debarment, such as—                    proposed tax deficiency. This is not a
                                                                       (A) Willful failure to perform in ac-                    delinquent tax because it is not a final
                                                                     cordance with the terms of one or more                     tax liability. Should the taxpayer seek
                                                                     contracts; or                                              Tax Court review, this will not be a
                                                                       (B) A history of failure to perform, or                  final tax liability until the taxpayer
                                                                     of unsatisfactory performance of, one                      has exercised all judicial appeal rights.
                                                                     or more contracts.                                            (2) The IRS has filed a notice of Fed-
                                                                       (ii) Violations of 41 U.S.C. chapter 81,                 eral tax lien with respect to an as-
                                                                     Drug-Free Workplace, as indicated by—                      sessed tax liability, and the taxpayer
                                                                       (A) Failure to comply with the re-                       has been issued a notice under I.R.C.
                                                                     quirements of the clause at 52.226–7,                      § 6320 entitling the taxpayer to request
                                                                     Drug-Free Workplace; or                                    a hearing with the IRS Office of Ap-
                                                                       (B) Such a number of contractor em-                      peals contesting the lien filing, and to
                                                                     ployees convicted of violations of                         further appeal to the Tax Court if the
                                                                     criminal drug statutes occurring in the                    IRS determines to sustain the lien fil-
                                                                     workplace as to indicate that the con-                     ing. In the course of the hearing, the
                                                                     tractor has failed to make a good faith                    taxpayer is entitled to contest the un-
                                                                     effort to provide a drug-free workplace                    derlying tax liability because the tax-
                                                                     (see 26.504).                                              payer has had no prior opportunity to
                                                                       (iii) Intentionally affixing a label                     contest the liability. This is not a de-
                                                                     bearing a ‘‘Made in America’’ inscrip-                     linquent tax because it is not a final




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     tion (or any inscription having the                        tax liability. Should the taxpayer seek
                                                                     same meaning) to a product sold in or                      tax court review, this will not be a
                                                                     shipped to the United States or its out-                   final tax liability until the taxpayer
                                                                     lying areas, when the product was not                      has exercised all judicial appeal rights.

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                                                                     Federal Acquisition Regulation                                                                       9.406–3

                                                                        (3) The taxpayer has entered into an in-                the present responsibility of the con-
                                                                     stallment agreement pursuant to I.R.C.                     tractor or subcontractor.
                                                                     § 6159. The taxpayer is making timely                      [48 FR 42142, Sept. 19, 1983, as amended at 54
                                                                     payments and is in full compliance                         FR 4968, Jan. 31, 1989; 54 FR 19815, May 8,
                                                                     with the agreement terms. The tax-                         1989; 55 FR 21707, May 25, 1990; 59 FR 11372,
                                                                     payer is not delinquent because the                        Mar. 10, 1994; 61 FR 2633, Jan. 26, 1996; 61 FR
                                                                     taxpayer is not currently required to                      41473, Aug. 8, 1996; 61 FR 69291, Dec. 31, 1996;
                                                                                                                                68 FR 28080, May 22, 2003; 69 FR 34230, June
                                                                     make full payment.                                         18, 2004; 73 FR 21798, Apr. 22, 2008; 73 FR 67091,
                                                                        (4) The taxpayer has filed for bank-                    Nov. 12, 2008; 79 FR 24199, Apr. 29, 2014; 80 FR
                                                                     ruptcy protection. The taxpayer is not                     38296, July 2, 2015; 84 FR 19845, May 6, 2019; 85
                                                                     delinquent because enforced collection                     FR 40067, July 2, 2020; 86 FR 3679, Jan. 14,
                                                                     action is stayed under 11 U.S.C. 362 (the                  2021; 89 FR 30237, Apr. 22, 2024; 90 FR 513, Jan.
                                                                                                                                3, 2025]
                                                                     Bankruptcy Code).
                                                                        (vi) Knowing failure by a principal,                    9.406–3 Procedures.
                                                                     until 3 years after final payment on                         (a) Investigation and referral. Agencies
                                                                     any Government contract awarded to                         shall establish procedures for the
                                                                     the contractor, to timely disclose to                      prompt reporting, investigation, and
                                                                     the Government, in connection with                         referral to the suspending and debar-
                                                                     the award, performance, or closeout of                     ring official of matters appropriate for
                                                                     the contract or a subcontract there-                       that official’s consideration.
                                                                     under, credible evidence of—                                 (b) Decision-making process. (1) Agen-
                                                                        (A) Violation of Federal criminal law                   cies shall establish procedures gov-
                                                                     involving fraud, conflict of interest,                     erning the debarment decision-making
                                                                     bribery, or gratuity violations found in                   process that are as informal as is prac-
                                                                     Title 18 of the United States Code;                        ticable, consistent with principles of
                                                                        (B) Violation of the civil False                        fundamental fairness. These procedures
                                                                     Claims Act (31 U.S.C. 3729–3733); or                       shall afford the contractor (and any
                                                                        (C) Significant overpayment(s) on                       specifically named affiliates) an oppor-
                                                                     the contract, other than overpayments                      tunity to submit, in person, in writing,
                                                                                                                                or through a representative, informa-
                                                                     resulting from contract financing pay-
                                                                                                                                tion and argument in opposition to the
                                                                     ments as defined in 32.001.
                                                                                                                                proposed debarment. If the suspending
                                                                        (vii) Determination of a false certifi-                 and debarring official extends the op-
                                                                     cation under 52.209–13, Violation of                       portunity for the contractor to submit
                                                                     Arms Control Treaties or Agreements-                       material in opposition, then the offi-
                                                                     Certification.                                             cial should also give a deadline for sub-
                                                                        (2) A contractor, based on a deter-                     mission of materials. The suspending
                                                                     mination by the Secretary of Home-                         and debarring official may use flexible
                                                                     land Security or the Attorney General                      procedures to allow a contractor to
                                                                     of the United States, that the con-                        present matters in opposition in person
                                                                     tractor is not in compliance with Im-                      or remotely through appropriate tech-
                                                                     migration and Nationality Act employ-                      nology; if so, the suspending and debar-
                                                                     ment provisions (see Executive Order                       ring official should change the notice
                                                                     12989, as amended by Executive Order                       in paragraph (c)(3)(iv) of this section to
                                                                     13286). Such determination is not re-                      include those flexible procedures.
                                                                     viewable in the debarment proceedings.                       (2) In actions not based upon a con-
                                                                        (c) A contractor or subcontractor                       viction or civil judgment, if it is found
                                                                     based on any other cause of so serious                     that the contractor’s submission in op-
                                                                     or compelling a nature that it affects                     position raises a genuine dispute over
                                                                                                                                facts material to the proposed debar-
                                                                                                                                ment, agencies shall also—
                                                                                                                                  (i) Afford the contractor an oppor-
                                                                                                                                tunity to appear with counsel, submit
                                                                                                                                documentary evidence, present wit-




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                                                                                nesses, and confront any person the
                                                                                                                                agency presents; and
                                                                                                                                  (ii) Make a transcribed record of the
                                                                                                                                proceedings and make it available at

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                                                                     9.406–3                                                                48 CFR Ch. 1 (10–1–25 Edition)

                                                                     cost to the contractor upon request,                       a proposed debarment, the contractor
                                                                     unless the contractor and the agency,                      must identify—
                                                                     by mutual agreement, waive the re-                           (A) Specific facts that contradict the
                                                                     quirement for a transcript.                                statements contained in the notice of
                                                                       (c) Notice of proposal to debar. A no-                   proposed debarment. Include any infor-
                                                                     tice of proposed debarment shall be                        mation about any of the factors listed
                                                                     issued by the suspending and debarring                     in 9.406–1(a). A general denial is insuffi-
                                                                     official to the contractor and any spe-                    cient to raise a genuine dispute over
                                                                     cifically named affiliates.                                facts material to the proposed debar-
                                                                       (1) The written notice shall be sent—                    ment;
                                                                       (i) By U.S. mail or private delivery                       (B) All existing, proposed, or prior
                                                                     service to the last known street ad-                       exclusions and all similar actions
                                                                     dress, with delivery notification serv-                    taken by Federal, State, or local agen-
                                                                     ice;                                                       cies, including administrative agree-
                                                                       (ii) By email to the point of contact                    ments that affect only those agencies;
                                                                     email address in the contractor’s SAM                        (C) All criminal and civil proceedings
                                                                     registration, if any, or to the last                       not included in the notice of proposed
                                                                     known email address as confirmed by                        debarment that grew out of facts rel-
                                                                     the agency; or                                             evant to the cause(s) stated in the no-
                                                                       (iii) By certified mail to the last                      tice; and
                                                                     known street address with return re-                         (D) All of the contractor’s affiliates;
                                                                     ceipt requested.                                           and
                                                                       (2) The notice shall be sent—                              (ix) That if the contractor fails to
                                                                                                                                disclose the information in paragraph
                                                                       (i) To the contractor, the contrac-
                                                                                                                                (c)(3)(viii) of this section, or provides
                                                                     tor’s identified counsel for purposes of
                                                                                                                                false information, the agency taking
                                                                     the administrative proceedings, or the
                                                                                                                                the action may seek further criminal,
                                                                     contractor’s agent for service of proc-
                                                                                                                                civil, or administrative action against
                                                                     ess; and
                                                                                                                                the contractor, as appropriate.
                                                                       (ii) For each specifically named affil-
                                                                                                                                  (d) Suspending and debarring official’s
                                                                     iate, to the affiliate itself, the affili-
                                                                                                                                decision. (1) In actions based upon a
                                                                     ate’s identified counsel for purposes of
                                                                                                                                conviction or civil judgment, or in
                                                                     the administrative proceedings, or the
                                                                                                                                which there is no genuine dispute over
                                                                     affiliate’s agent for service of process.
                                                                                                                                material facts, the suspending and de-
                                                                       (3) The notice shall state—                              barring official shall make a decision
                                                                       (i) That debarment is being consid-                      on the basis of all the information in
                                                                     ered;                                                      the administrative record, including
                                                                       (ii) The reasons for the proposed de-                    any submission made by the con-
                                                                     barment in terms sufficient to put the                     tractor. If no suspension is in effect,
                                                                     contractor on notice of the conduct or                     the decision shall be made within 45
                                                                     transaction(s) upon which it is based;                     days from the date that the official ad-
                                                                       (iii) The cause(s) relied upon under                     ministrative record is closed, unless
                                                                     9.406–2 for proposing debarment;                           the suspending and debarring official
                                                                       (iv) That, within 30 days after receipt                  extends this period for good cause. The
                                                                     of the notice, the contractor may sub-                     official record closes upon the expira-
                                                                     mit, in person, in writing, or through a                   tion of the contractor’s time to submit
                                                                     representative, information and argu-                      information and argument in opposi-
                                                                     ment in opposition to the proposed de-                     tion, including any extensions (see
                                                                     barment, including any additional spe-                     paragraph (b)(1) of this section).
                                                                     cific information that raises a genuine                      (2)(i) In actions in which additional
                                                                     dispute over the material facts;                           proceedings are necessary as to dis-
                                                                       (v) The agency’s procedures gov-                         puted material facts, written findings
                                                                     erning debarment decision making;                          of fact shall be prepared. The sus-
                                                                       (vi) The effect of the issuance of the                   pending and debarring official shall
                                                                     notice of proposed debarment;                              base the decision on the facts as found,




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                       (vii) The potential effect of an actual                  together with any information and ar-
                                                                     debarment;                                                 gument submitted by the contractor
                                                                       (viii) That in addition to any infor-                    and any other information in the ad-
                                                                     mation and argument in opposition to                       ministrative record.

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                                                                     Federal Acquisition Regulation                                                                       9.406–4

                                                                       (ii) The debarring official may refer                      (3) With regard to information that
                                                                     matters involving disputed material                        may be covered by a disclosure exemp-
                                                                     facts to another official for findings of                  tion under the Freedom of Information
                                                                     fact. The suspending and debarring of-                     Act, the suspending and debarring offi-
                                                                     ficial may reject any such findings, in                    cial shall follow the procedures at
                                                                     whole or in part, only after specifically                  9.105–2(b)(2)(iv).
                                                                     determining them to be arbitrary and                         (g) Voluntary exclusions. (1) If the con-
                                                                     capricious or clearly erroneous.                           tractor enters into a voluntary exclu-
                                                                       (iii) The suspending and debarring of-                   sion with the Government in order to
                                                                     ficial’s decision shall be made after the                  resolve a debarment or potential debar-
                                                                     conclusion of the proceedings with re-                     ment matter, the suspending and de-
                                                                     spect to disputed facts.                                   barring official shall access the website
                                                                       (3) In any action in which the pro-                      (available at https://www.sam.gov) and
                                                                     posed debarment is not based upon a                        enter the requested information into
                                                                     conviction or civil judgment, the cause                    the exclusions section of SAM (see
                                                                     for debarment must be established by a                     9.404(c)(3)).
                                                                     preponderance of the evidence.                               (2) The suspending and debarring offi-
                                                                       (e) Notice of suspending and debarring                   cial is responsible for the timely and
                                                                     official’s decision. (1) If the suspending                 accurate submission of documentation
                                                                     and debarring official decides to im-                      reflecting the voluntary exclusion. The
                                                                     pose debarment, the contractor and                         submission should be made within 3
                                                                     any affiliates involved shall be given                     working days.
                                                                     prompt notice using the procedures in                        (3) Regarding information that may
                                                                     paragraphs (c)(1) and (2) of this sec-                     be covered by a disclosure exemption
                                                                     tion—                                                      under the Freedom of Information Act,
                                                                       (i) Referring to the notice of proposed                  the suspending and debarring official
                                                                     debarment;                                                 shall follow the procedures at 9.105–
                                                                       (ii) Specifying the reasons for debar-                   2(b)(2)(iv).
                                                                     ment;                                                        (h) Pre-notice letters. Prior to initi-
                                                                       (iii) Stating the period of debarment,                   ating a proposed debarment, a pre-no-
                                                                     including effective dates; and                             tice letter may be issued at the discre-
                                                                       (iv) Advising that the debarment is                      tion of the agency suspending and de-
                                                                     effective throughout the executive                         barring official. A pre-notice letter is
                                                                     branch of the Government unless the                        not required to initiate debarment
                                                                     head of an agency or a designee makes                      under this subpart. (See 9.403.)
                                                                     the statement called for by 9.406–1(d).                    [48 FR 42142, Sept. 19, 1983, as amended at 54
                                                                       (2) If debarment is not imposed, the                     FR 19815, May 8, 1989; 59 FR 67033, Dec. 28,
                                                                     suspending and debarring official shall                    1994; 75 FR 14066, Mar. 23, 2010; 77 FR 201, Jan.
                                                                     promptly notify the contractor and                         3, 2012; 83 FR 42572, Aug. 22, 2018; 84 FR 19845,
                                                                     any affiliates involved, using the pro-                    May 6, 2019; 90 FR 514, Jan. 3, 2025]
                                                                     cedures in paragraphs (c)(1) and (2) of
                                                                     this section.                                              9.406–4 Period of debarment.
                                                                       (f) Administrative agreements. (1) If the                  (a)(1) Debarment shall be for a period
                                                                     contractor enters into an administra-                      commensurate with the seriousness of
                                                                     tive agreement with the Government                         the cause(s). Generally, debarment
                                                                     in order to resolve a debarment or po-                     should not exceed 3 years, except
                                                                     tential debarment proceeding, the sus-                     that—
                                                                     pending and debarring official shall ac-                     (i) Debarment for violation of the
                                                                     cess the website (available at https://                    provisions of 41 U.S.C. chapter 81,
                                                                     www.cpars.gov, then select FAPIIS),                        Drug-Free Workplace (see 26.505) may
                                                                     enter the requested information, and                       be for a period not to exceed 5 years;
                                                                     upload documentation reflecting the                          (ii) Debarments under 9.406–2(b)(2)
                                                                     administrative agreement.                                  shall be for 1 year unless extended pur-
                                                                       (2) The suspending and debarring offi-                   suant to paragraph (b) of this section;
                                                                     cial is responsible for the timely and                     and




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     accurate submission of documentation                         (iii)    Debarments      under    9.406–
                                                                     reflecting the administrative agree-                       2(b)(1)(vii) shall be for a period of not
                                                                     ment. The submission should be made                        less than 2 years, inclusive of any sus-
                                                                     within 3 working days.                                     pension period, if suspension precedes a

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                                                                     9.406–5                                                                48 CFR Ch. 1 (10–1–25 Edition)

                                                                     debarment (see paragraph (a)(2) of this                    ual’s performance of duties for or on
                                                                     section).                                                  behalf of the contractor, or with the
                                                                       (2) If suspension precedes a debar-                      contractor’s knowledge, approval, or
                                                                     ment, the suspension period shall be                       acquiescence. The contractor’s accept-
                                                                     considered in determining the debar-                       ance of the benefits derived from the
                                                                     ment period.                                               conduct shall be evidence of such
                                                                       (b) The suspending and debarring of-                     knowledge, approval, or acquiescence.
                                                                     ficial may extend the debarment for an                       (b) The fraudulent, criminal, or other
                                                                     additional period, if that official deter-                 seriously improper conduct of a con-
                                                                     mines that an extension is necessary to                    tractor may be imputed to any officer,
                                                                     protect the Government’s interest.                         director, shareholder, partner, em-
                                                                     However, a debarment may not be ex-                        ployee, or other individual associated
                                                                     tended solely on the basis of the facts                    with the contractor who participated
                                                                     and circumstances upon which the ini-                      in, knew of, or had reason to know of
                                                                     tial debarment action was based.                           the contractor’s conduct.
                                                                     Debarments under 9.406–2(b)(2) may be                        (c) The fraudulent, criminal, or other
                                                                     extended for additional periods of one                     seriously improper conduct of one con-
                                                                     year if the Secretary of Homeland Se-                      tractor participating in a joint venture
                                                                     curity or the Attorney General deter-                      or similar arrangement may be im-
                                                                     mines that the contractor continues to                     puted to other participating contrac-
                                                                     be in violation of the employment pro-                     tors if the conduct occurred for or on
                                                                     visions of the Immigration and Nation-                     behalf of the joint venture or similar
                                                                     ality Act. If debarment for an addi-                       arrangement, or with the knowledge,
                                                                     tional period is determined to be nec-                     approval, or acquiescence of these con-
                                                                     essary, the procedures of 9.406–3 shall                    tractors. Acceptance of the benefits de-
                                                                     be followed to extend the debarment.                       rived from the conduct shall be evi-
                                                                       (c) The suspending and debarring offi-                   dence of such knowledge, approval, or
                                                                     cial may reduce the period or extent of                    acquiescence.
                                                                     debarment, upon the contractor’s re-
                                                                     quest, supported by documentation, for                     9.407   Suspension.
                                                                     reasons such as—
                                                                                                                                9.407–1     General.
                                                                       (1) Newly discovered material evi-
                                                                     dence;                                                        (a) The suspending and debarring of-
                                                                       (2) Reversal of the conviction or civil                  ficial may, in the public interest, sus-
                                                                     judgment upon which the debarment                          pend a contractor for any of the causes
                                                                     was based;                                                 in 9.407–2, using the procedures in 9.407–
                                                                       (3) Bona fide change in ownership or                     3.
                                                                     management;                                                   (b)(1) Suspension is a serious action
                                                                       (4) Elimination of other causes for                      to be imposed on the basis of adequate
                                                                     which the debarment was imposed; or                        evidence, pending the completion of an
                                                                       (5) Other reasons the suspending and                     investigation or legal proceedings,
                                                                     debarring official deems appropriate.                      when it has been determined that im-
                                                                                                                                mediate action is necessary to protect
                                                                     [48 FR 42142, Sept. 19, 1983, as amended at 54             the Government’s interest. In deciding
                                                                     FR 4968, Jan. 31, 1989; 54 FR 19815, May 8,
                                                                     1989; 55 FR 21707, May 25, 1990; 61 FR 41473,
                                                                                                                                whether immediate action is necessary
                                                                     Aug. 8, 1996; 69 FR 34231, June 18, 2004; 79 FR            to protect the Government’s interest,
                                                                     24199, Apr. 29, 2014; 83 FR 28148, June 15, 2018;          the suspending and debarring official
                                                                     84 FR 19845, May 6, 2019; 86 FR 3679, Jan. 14,             has wide discretion. The suspending
                                                                     2021; 89 FR 30237, Apr. 22, 2024; 90 FR 514, Jan.          and debarring official may infer the ne-
                                                                     3, 2025]                                                   cessity for immediate action to protect
                                                                                                                                the Government’s interest either from
                                                                     9.406–5      Scope of debarment.                           the nature of the circumstances giving
                                                                       (a) The fraudulent, criminal, or other                   rise to a cause for suspension or from
                                                                     seriously improper conduct of any offi-                    potential business relationships or in-
                                                                     cer, director, shareholder, partner, em-                   volvement with a program of the Fed-




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     ployee, or other individual associated                     eral Government. In assessing the ade-
                                                                     with a contractor may be imputed to                        quacy of the evidence, agencies should
                                                                     the contractor when the conduct oc-                        consider how much information is
                                                                     curred in connection with the individ-                     available, how credible it is given the

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                                                                     Federal Acquisition Regulation                                                                       9.407–2

                                                                     circumstances, whether or not impor-                       the purchase of Federal personal prop-
                                                                     tant allegations are corroborated, and                     erty pursuant to Federal Management
                                                                     what inferences can reasonably be                          Regulation (FMR) in 41 CFR part 102–
                                                                     drawn as a result. This assessment                         38, that official shall consider simulta-
                                                                     should include an examination of basic                     neously suspending the contractor
                                                                     documents such as contracts, inspec-                       from the award of acquisition con-
                                                                     tion reports, and correspondence. An                       tracts and from the purchase of Fed-
                                                                     indictment or other official findings by                   eral personal property.
                                                                     Federal, State, or local bodies that de-                     (2) When suspending a contractor
                                                                     termine factual and/or legal matters,                      from the award of acquisition con-
                                                                     constitutes adequate evidence for pur-                     tracts and from the purchase of Fed-
                                                                     poses of suspension actions.                               eral personal property, the suspension
                                                                       (2) The existence of a cause for sus-                    notice shall so indicate and the appro-
                                                                     pension does not necessarily require                       priate FAR and FMR citations shall be
                                                                     that the contractor be suspended. The                      included.
                                                                     suspending and debarring official
                                                                                                                                [48 FR 42142, Sept. 19, 1983, as amended at 54
                                                                     should consider the seriousness of the
                                                                                                                                FR 4968, Jan. 31, 1989; 54 FR 19816, May 8,
                                                                     contractor’s acts or omissions and                         1989; 56 FR 67130, Dec. 27, 1991; 59 FR 67033,
                                                                     may, but is not required to, consider                      Dec. 28, 1994; 84 FR 19845, May 6, 2019; 89 FR
                                                                     remedial measures, mitigating factors,                     30237, Apr. 22, 2024; 90 FR 514, Jan. 3, 2025]
                                                                     or aggravating factors, such as those in
                                                                     9.406–1(a). A contractor has the burden                    9.407–2     Causes for suspension.
                                                                     of promptly presenting to the sus-                           (a) The suspending and debarring of-
                                                                     pending and debarring official evidence                    ficial may suspend a contractor sus-
                                                                     of remedial measures or mitigating                         pected, upon adequate evidence, of—
                                                                     factors when it has reason to know                           (1) Commission of fraud or a criminal
                                                                     that a cause for suspension exists. The                    offense in connection with—
                                                                     existence or nonexistence of any reme-
                                                                                                                                  (i) Obtaining;
                                                                     dial measures or aggravating or miti-
                                                                     gating factors is not necessarily deter-                     (ii) Attempting to obtain; or
                                                                     minative of a contractor’s present re-                       (iii) Performing a public contract or
                                                                     sponsibility.                                              subcontract;
                                                                       (c) Suspension constitutes suspension                      (2) Violation of Federal or State anti-
                                                                     of all divisions or other organizational                   trust statutes relating to the submis-
                                                                     elements of the contractor, unless the                     sion of offers;
                                                                     suspension decision is limited by its                        (3) Commission of embezzlement,
                                                                     terms to specific divisions, organiza-                     theft, forgery, bribery, falsification or
                                                                     tional elements, or commodities. The                       destruction of records, making false
                                                                     suspending and debarring official may                      statements, tax evasion, violating Fed-
                                                                     extend the suspension decision to in-                      eral criminal tax laws, or receiving
                                                                     clude any affiliates of the contractor if                  stolen property;
                                                                     they are—                                                    (4) Violations of 41 U.S.C. chapter 81,
                                                                       (1) Specifically named; and                              Drug-Free Workplace, as indicated by—
                                                                       (2) Given written notice of the sus-                       (i) Failure to comply with the re-
                                                                     pension and an opportunity to respond                      quirements of the clause at 52.226–7,
                                                                     (see 9.407–3(c)).                                          Drug-Free Workplace; or
                                                                       (d) A contractor’s suspension shall be                     (ii) Such a number of contractor em-
                                                                     effective throughout the executive                         ployees convicted of violations of
                                                                     branch of the Government, unless the                       criminal drug statutes occurring in the
                                                                     agency head or a designee (except see                      workplace as to indicate that the con-
                                                                     26.505(e)) states in writing the compel-                   tractor has failed to make a good faith
                                                                     ling reasons justifying continued busi-                    effort to provide a drug-free workplace
                                                                     ness dealings between that agency and                      (see 26.504);
                                                                     the contractor.                                              (5) Intentionally affixing a label
                                                                       (e)(1) When the suspending and debar-                    bearing a ‘‘Made in America’’ inscrip-




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     ring official has authority to suspend                     tion (or any inscription having the
                                                                     contractors from both contracts pursu-                     same meaning) to a product sold in or
                                                                     ant to the Federal Acquisition Regula-                     shipped to the United States or its out-
                                                                     tion in this chapter and contracts for                     lying areas, when the product was not

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                                                                     9.407–3                                                                48 CFR Ch. 1 (10–1–25 Edition)

                                                                     made in the United States or its out-                      sibility of a Government contractor or
                                                                     lying areas (see Section 202 of the De-                    subcontractor.
                                                                     fense Production Act (Public Law 102–                      [48 FR 42142, Sept. 19, 1983, as amended at 54
                                                                     558));                                                     FR 4968, Jan. 31, 1989; 55 FR 21707, May 25,
                                                                       (6) Commission of an unfair trade                        1990; 59 FR 11373, Mar. 10, 1994; 61 FR 2633,
                                                                     practice as defined in 9.403 (see section                  Jan. 26, 1996; 61 FR 69291, Dec. 31, 1996; 68 FR
                                                                     201 of the Defense Production Act (Pub.                    28081, May 22, 2003; 73 FR 21798, Apr. 22, 2008;
                                                                     L. 102–558));                                              73 FR 67091, Nov. 12, 2008; 79 FR 24199, Apr. 29,
                                                                                                                                2014; 80 FR 38296, July 2, 2015; 84 FR 19845,
                                                                       (7) Delinquent Federal taxes in an                       May 6, 2019; 85 FR 40067, July 2, 2020; 86 FR
                                                                     amount that exceeds the threshold at                       3679, Jan. 14, 2021; 89 FR 30237, Apr. 22, 2024;
                                                                     9.104–5(a)(2). See the criteria at 9.406–                  90 FR 515, Jan. 3, 2025]
                                                                     2(b)(1)(v) for determination of when
                                                                     taxes are delinquent;                                      9.407–3     Procedures.
                                                                       (8) Knowing failure by a principal,                        (a) Investigation and referral. Agencies
                                                                     until 3 years after final payment on                       shall establish procedures for the
                                                                     any Government contract awarded to                         prompt reporting, investigation, and
                                                                     the contractor, to timely disclose to                      referral to the suspending and debar-
                                                                     the Government, in connection with                         ring official of matters appropriate for
                                                                     the award, performance, or closeout of                     that official’s consideration.
                                                                     the contract or a subcontract there-                         (b) Decision-making process. (1) Agen-
                                                                     under, credible evidence of—                               cies shall establish procedures gov-
                                                                       (i) Violation of Federal criminal law                    erning the suspension decision-making
                                                                     involving fraud, conflict of interest,                     process that are as informal as is prac-
                                                                     bribery, or gratuity violations found in                   ticable, consistent with principles of
                                                                     Title 18 of the United States Code;                        fundamental fairness. These procedures
                                                                       (ii) Violation of the civil False                        shall afford the contractor (and any
                                                                                                                                specifically named affiliates) an oppor-
                                                                     Claims Act (31 U.S.C. 3729–3733); or
                                                                                                                                tunity, following the imposition of sus-
                                                                       (iii) Significant overpayment(s) on                      pension, to submit, in person, in writ-
                                                                     the contract, other than overpayments                      ing, or through a representative, infor-
                                                                     resulting from contract financing pay-                     mation and argument in opposition to
                                                                     ments as defined in 32.001; or                             the suspension. If the suspending and
                                                                       (9) Determination of a false certifi-                    debarring official extends the oppor-
                                                                     cation under 52.209–13, Violation of                       tunity for the contractor to submit
                                                                     Arms Control Treaties or Agreements-                       material in opposition, then the offi-
                                                                     Certification.                                             cial should also give a deadline for sub-
                                                                       (10) Commission of any other offense                     mission of materials. The suspending
                                                                     indicating a lack of business integrity                    and debarring official may use the
                                                                     or business honesty that seriously and                     flexible procedures in 9.406–3(b)(1); if so,
                                                                     directly affects the present responsi-                     the suspending and debarring official
                                                                     bility of a Government contractor or                       should change the notice in paragraph
                                                                     subcontractor.                                             (c)(5) of this section to include those
                                                                       (b) Indictment for any of the causes                     flexible procedures.
                                                                     in paragraph (a) of this section con-                        (2) In actions not based on an indict-
                                                                     stitutes adequate evidence for suspen-                     ment, if it is found that the contrac-
                                                                     sion.                                                      tor’s submission in opposition raises a
                                                                       (c) The suspending and debarring offi-                   genuine dispute over facts material to
                                                                                                                                the suspension and if no determination
                                                                     cial may upon adequate evidence also
                                                                                                                                has been made, on the basis of Depart-
                                                                     suspend a contractor for any other
                                                                                                                                ment of advice from the Department of
                                                                     cause of so serious or compelling a na-                    Justice, a U.S. Attorney’s office, State
                                                                     ture that it affects the present respon-                   attorney general’s office, or a State or
                                                                                                                                local prosecutor’s office, that substan-
                                                                                                                                tial interests of the Government in




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                                                                                pending or contemplated legal pro-
                                                                                                                                ceedings based on the same facts as the
                                                                                                                                suspension would be prejudiced, agen-
                                                                                                                                cies shall also—

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                                                                     Federal Acquisition Regulation                                                                       9.407–3

                                                                        (i) Afford the contractor an oppor-                       (7) That, in addition to any informa-
                                                                     tunity to appear with counsel, submit                      tion and argument in opposition to a
                                                                     documentary evidence, present wit-                         suspension, the contractor must iden-
                                                                     nesses, and confront any person the                        tify—
                                                                     agency presents; and                                         (i) Specific facts that contradict the
                                                                        (ii) Make a transcribed record of the                   statements contained in the notice of
                                                                     proceedings and make it available at                       suspension. Include any information
                                                                     cost to the contractor upon request,                       about any of the factors listed in 9.406–
                                                                     unless the contractor and the agency,                      1(a). A general denial is insufficient to
                                                                     by mutual agreement, waive the re-                         raise a genuine dispute over facts ma-
                                                                     quirement for a transcript.                                terial to the suspension;
                                                                        (c) Notice of suspension. When a con-                     (ii) All existing, proposed, or prior
                                                                     tractor and any specifically named af-                     exclusions and all similar actions
                                                                     filiates are suspended, they shall be im-                  taken by Federal, State, or local agen-
                                                                     mediately advised using the procedures                     cies, including administrative agree-
                                                                     in 9.406–3(c)(1) and (2)—                                  ments that affect only those agencies;
                                                                        (1) That they have been suspended                         (iii) All criminal and civil pro-
                                                                     and that the suspension is based on an                     ceedings not included in the notice of
                                                                     indictment or other adequate evidence                      suspension that grew out of facts rel-
                                                                     that the contractor has committed                          evant to the cause(s) stated in the no-
                                                                     irregularities—                                            tice; and
                                                                        (i) Of a serious nature in business
                                                                                                                                  (iv) All of the contractor’s affiliates;
                                                                     dealings with the Government; or
                                                                                                                                and
                                                                        (ii) Seriously reflecting on the pro-
                                                                                                                                  (8) That if the contractor fails to dis-
                                                                     priety of further Government dealings
                                                                                                                                close the information in paragraph
                                                                     with the contractor—any such irreg-
                                                                                                                                (c)(7) of this section or provides false
                                                                     ularities shall be described in terms
                                                                                                                                information, the agency taking the ac-
                                                                     sufficient to place the contractor on
                                                                                                                                tion may seek further criminal, civil,
                                                                     notice without disclosing the Govern-
                                                                                                                                or administrative action against the
                                                                     ment’s evidence;
                                                                                                                                contractor, as appropriate.
                                                                        (2) That the suspension is for a tem-
                                                                     porary period pending the completion                         (d) Suspending and debarring official’s
                                                                     of an investigation and such legal pro-                    decision. (1) The suspending and debar-
                                                                     ceedings as may ensue;                                     ring official’s decision shall be based
                                                                        (3) Of the cause(s) relied upon under                   on all the information in the adminis-
                                                                     9.407–2 for imposing suspension;                           trative record, including any submis-
                                                                        (4) Of the effect of the suspension;                    sion made by the contractor, for ac-
                                                                        (5) That, within 30 days after receipt                  tions—
                                                                     of the notice, the contractor may sub-                       (i) Based on an indictment;
                                                                     mit, in person, in writing, or through a                     (ii) In which the contractor’s submis-
                                                                     representative, information and argu-                      sion does not raise a genuine dispute
                                                                     ment in opposition to the suspension,                      over material facts; or
                                                                     including any additional specific infor-                     (iii) In which additional proceedings
                                                                     mation that raises a genuine dispute                       to determine disputed material facts
                                                                     over the material facts;                                   have been denied on the basis of advice
                                                                        (6) That additional proceedings to de-                  from the Department of Justice, a U.S.
                                                                     termine disputed material facts will be                    Attorney’s office, State attorney gen-
                                                                     conducted unless—                                          eral’s office, or a State or local pros-
                                                                        (i) The action is based on an indict-                   ecutor’s office.
                                                                     ment; or                                                     (2)(i) In actions in which additional
                                                                        (ii) A determination is made, on the                    proceedings are necessary as to dis-
                                                                     basis of advice by the Department of                       puted material facts, written findings
                                                                     Justice, a U.S. Attorney’s office, State                   of fact shall be prepared. The sus-
                                                                     attorney general’s office, or a State or                   pending and debarring official shall
                                                                     local prosecutor’s office, that the sub-                   base the decision on the facts as found,




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     stantial interests of the Government in                    together with any information and ar-
                                                                     pending or contemplated legal pro-                         gument submitted by the contractor
                                                                     ceedings based on the same facts as the                    and any other information in the ad-
                                                                     suspension would be prejudiced;                            ministrative record.

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                                                                     9.407–4                                                                48 CFR Ch. 1 (10–1–25 Edition)

                                                                       (ii) The suspending and debarring of-                    website      (available     at     https://
                                                                     ficial may refer matters involving dis-                    www.sam.gov) and enter the requested
                                                                     puted material facts to another official                   information into the exclusions section
                                                                     for findings of fact. The suspending and                   of SAM (see 9.404(c)(3)).
                                                                     debarring official may reject any such                       (2) The suspending and debarring offi-
                                                                     findings, in whole or in part, only after                  cial is responsible for the timely and
                                                                     specifically determining them to be ar-                    accurate submission of documentation
                                                                     bitrary and capricious or clearly erro-                    reflecting the voluntary exclusion. The
                                                                     neous.                                                     submission should be made within 3
                                                                       (iii) The suspending and debarring of-                   working days.
                                                                     ficial’s decision shall be made after the                    (3) Regarding information that may
                                                                     conclusion of the proceedings with re-                     be covered by a disclosure exemption
                                                                     spect to disputed facts.                                   under the Freedom of Information Act,
                                                                       (3) The suspending and debarring offi-                   the suspending and debarring official
                                                                     cial may modify or terminate the sus-                      shall follow the procedures at 9.105–
                                                                     pension or leave it in force (for exam-                    2(b)(2)(iv).
                                                                     ple, see 9.406–4(c) for the reasons for re-                  (g) Pre-notice letter. Prior to initi-
                                                                     ducing the period or extent of debar-                      ating a suspension, a pre-notice letter
                                                                     ment). However, a decision to modify                       may be issued at the discretion of the
                                                                     or terminate the suspension shall be                       agency suspending and debarring offi-
                                                                     without prejudice to the subsequent                        cial. A pre-notice letter is not required
                                                                     imposition of—                                             to initiate suspension under this sub-
                                                                       (i) Suspension by any other agency;                      part. (See 9.403.)
                                                                     or
                                                                       (ii) Debarment by any agency.                            [48 FR 42142, Sept. 19, 1983, as amended at 51
                                                                                                                                FR 2649, Jan. 17, 1986; 75 FR 14066, Mar. 23,
                                                                       (4) Prompt written notice of the sus-
                                                                                                                                2010; 77 FR 201, Jan. 3, 2012; 83 FR 42572, Aug.
                                                                     pending and debarring official’s deci-                     22, 2018; 90 FR 515, Jan. 3, 2025]
                                                                     sion shall be sent to the contractor and
                                                                     any affiliates involved, using the pro-                    9.407–4     Period of suspension.
                                                                     cedures in 9.406–3(c)(1) and (2).
                                                                                                                                  (a) Suspension shall be for a tem-
                                                                       (e) Administrative agreement. (1) If the
                                                                                                                                porary period pending the completion
                                                                     contractor enters into an administra-
                                                                                                                                of an investigation and any ensuing
                                                                     tive agreement with the Government
                                                                                                                                legal proceedings, unless sooner termi-
                                                                     in order to resolve a suspension or po-
                                                                                                                                nated by the suspending and debarring
                                                                     tential suspension proceeding, the sus-
                                                                                                                                official or as provided in this section.
                                                                     pending and debarring official shall ac-
                                                                     cess the website (available at https://                      (b) If legal proceedings are not initi-
                                                                     www.cpars.gov, then select FAPIIS),                        ated within 12 months after the date of
                                                                     enter the requested information, and                       the suspension notice, the suspension
                                                                     upload documentation reflecting the                        shall be terminated unless an office of
                                                                     administrative agreement.                                  a U.S. Assistant Attorney General,
                                                                       (2) The suspending and debarring offi-                   U.S. Attorney, or other responsible
                                                                     cial is responsible for the timely and                     prosecuting official requests its exten-
                                                                     accurate submission of documentation                       sion, in which case it may be extended
                                                                     reflecting the administrative agree-                       for an additional 6 months. In no event
                                                                     ment. The submission should be made                        may a suspension extend beyond 18
                                                                     within 3 working days.                                     months, unless legal proceedings have
                                                                       (3) With regard to information that                      been initiated within that period.
                                                                     may be covered by a disclosure exemp-                        (c) The suspending and debarring offi-
                                                                     tion under the Freedom of Information                      cial shall notify the Department of
                                                                     Act, the suspending and debarring offi-                    Justice or other responsible pros-
                                                                     cial shall follow the procedures at                        ecuting official of the proposed termi-
                                                                     9.105–2(b)(2)(iv).                                         nation of the suspension, at least 30
                                                                       (f) Voluntary exclusion. (1) If the con-                 days before the 12-month period ex-
                                                                     tractor enters into a voluntary exclu-                     pires, to give that official an oppor-
                                                                                                                                tunity to request an extension on the




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     sion with the Government in order to
                                                                     resolve a suspension or potential sus-                     Government’s behalf.
                                                                     pension proceeding, the suspending and                     [48 FR 42142, Sept. 19, 1983, as amended at 51
                                                                     debarring official shall access the                        FR 2649, Jan. 17, 1986; 90 FR 516, Jan. 3, 2025]

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                                                                     Federal Acquisition Regulation                                                                       9.503

                                                                     9.407–5 Scope of suspension.                               equipment, software, components, or
                                                                       The scope of suspension shall be the                     facilities);
                                                                     same as that for debarment (see 9.406–                       (3) Routine legal, actuarial, auditing,
                                                                     5), except that the procedures of 9.407–                   and accounting services; and
                                                                     3 shall be used in imposing suspension.                      (4) Training services.
                                                                                                                                [55 FR 42685, Oct. 22, 1990, as amended at 66
                                                                     9.408       [Reserved]                                     FR 2128, Jan. 10, 2001]
                                                                     9.409 Contract clause.
                                                                                                                                9.502   Applicability.
                                                                       The contracting officer shall insert
                                                                     the clause at 52.209–6, Protecting the                       (a) This subpart applies to contracts
                                                                     Government’s Interest when Subcon-                         with either profit or nonprofit organi-
                                                                     tracting with Contractors Debarred,                        zations, including nonprofit organiza-
                                                                     Suspended, Proposed for Debarment, or                      tions created largely or wholly with
                                                                     Voluntarily Excluded, in solicitations                     Government funds.
                                                                     and contracts where the contract value                       (b) The applicability of this subpart
                                                                     exceeds $45,000.                                           is not limited to any particular kind of
                                                                                                                                acquisition. However, organizational
                                                                     [60 FR 34748, July 3, 1995, as amended at 71               conflicts of interest are more likely to
                                                                     FR 57366, Sept. 28, 2006; 73 FR 21798, Apr. 22,
                                                                                                                                occur in contracts involving—
                                                                     2008, as amended at 80 FR 38297, July 2, 2015;
                                                                     90 FR 516, Jan. 3, 2025; 90 FR 41877, Aug. 27,               (1) Management support services;
                                                                     2025]                                                        (2) Consultant or other professional
                                                                                                                                services;
                                                                       Subpart 9.5—Organizational and                             (3) Contractor performance of or as-
                                                                        Consultant Conflicts of Interest                        sistance in technical evaluations; or
                                                                                                                                  (4) Systems engineering and tech-
                                                                     9.500 Scope of subpart.                                    nical direction work performed by a
                                                                       This subpart:                                            contractor that does not have overall
                                                                       (a) Prescribes responsibilities, gen-                    contractual responsibility for develop-
                                                                     eral rules, and procedures for identi-                     ment or production.
                                                                     fying, evaluating, and resolving organi-                     (c) An organizational conflict of in-
                                                                     zational conflicts of interest;                            terest may result when factors create
                                                                       (b) Provides examples to assist con-                     an actual or potential conflict of inter-
                                                                     tracting officers in applying these rules                  est on an instant contract, or when the
                                                                     and procedures to individual con-                          nature of the work to be performed on
                                                                     tracting situations; and                                   the instant contract creates an actual
                                                                       (c) Implements section 8141 of the                       or potential conflict of interest on a fu-
                                                                     1989 Department of Defense Appropria-                      ture acquisition. In the latter case,
                                                                     tion Act, Pub. L. 100–463, 102 Stat. 2270–                 some restrictions on future activities
                                                                     47 (1988).                                                 of the contractor may be required.
                                                                                                                                  (d) Acquisitions subject to unique
                                                                     [55 FR 42685, Oct. 22, 1990, as amended at 65
                                                                                                                                agency organizational conflict of inter-
                                                                     FR 36014, June 6, 2000]
                                                                                                                                est statutes are excluded from the re-
                                                                     9.501 Definition.                                          quirements of this subpart.
                                                                       Marketing consultant, as used in this                    [48 FR 42142, Sept. 19, 1983, as amended at 55
                                                                     subpart, means any independent con-                        FR 42686, Oct. 22, 1990; 56 FR 55377, Oct. 25,
                                                                     tractor who furnishes advice, informa-                     1991; 84 FR 19845, May 6, 2019]
                                                                     tion, direction, or assistance to an of-
                                                                     feror or any other contractor in sup-                      9.503   Waiver.
                                                                     port of the preparation or submission                        The agency head or a designee may
                                                                     of an offer for a Government contract                      waive any general rule or procedure of
                                                                     by that offeror. An independent con-                       this subpart by determining that its
                                                                     tractor is not a marketing consultant                      application in a particular situation
                                                                     when rendering—                                            would not be in the Government’s in-




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                       (1) Services excluded in subpart 37.2;                   terest. Any request for waiver must be
                                                                       (2) Routine engineering and technical                    in writing, shall set forth the extent of
                                                                     services (such as installation, oper-                      the conflict, and requires approval by
                                                                     ation, or maintenance of systems,                          the agency head or a designee. Agency

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                                                                     9.504                                                                  48 CFR Ch. 1 (10–1–25 Edition)

                                                                     heads shall not delegate waiver author-                    sion shall be included in the contract
                                                                     ity below the level of head of a con-                      file.
                                                                     tracting activity.                                         [48 FR 42142, Sept. 19, 1983, as amended at 55
                                                                                                                                FR 42686, Oct. 22, 1990; 56 FR 55377, Oct. 25,
                                                                     9.504 Contracting officer responsibil-                     1991]
                                                                         ities.
                                                                       (a) Using the general rules, proce-                      9.505 General rules.
                                                                     dures, and examples in this subpart,                          The general rules in 9.505–1 through
                                                                     contracting officers shall analyze                         9.505–4 prescribe limitations on con-
                                                                     planned acquisitions in order to—                          tracting as the means of avoiding, neu-
                                                                       (1) Identify and evaluate potential or-                  tralizing, or mitigating organizational
                                                                     ganizational conflicts of interest as                      conflicts of interest that might other-
                                                                     early in the acquisition process as pos-                   wise exist in the stated situations.
                                                                     sible; and                                                 Some illustrative examples are pro-
                                                                                                                                vided in 9.508. Conflicts may arise in
                                                                       (2) Avoid, neutralize, or mitigate sig-
                                                                                                                                situations not expressly covered in this
                                                                     nificant potential conflicts before con-
                                                                                                                                section 9.505 or in the examples in 9.508.
                                                                     tract award.                                               Each individual contracting situation
                                                                       (b) Contracting officers should obtain                   should be examined on the basis of its
                                                                     the advice of counsel and the assist-                      particular facts and the nature of the
                                                                     ance of appropriate technical special-                     proposed contract. The exercise of
                                                                     ists in evaluating potential conflicts                     common sense, good judgment, and
                                                                     and in developing any necessary solici-                    sound discretion is required in both the
                                                                     tation provisions and contract clauses                     decision on whether a significant po-
                                                                     (see 9.506).                                               tential conflict exists and, if it does,
                                                                       (c) Before issuing a solicitation for a                  the development of an appropriate
                                                                     contract that may involve a significant                    means for resolving it. The two under-
                                                                     potential conflict, the contracting offi-                  lying principles are—
                                                                     cer shall recommend to the head of the                        (a) Preventing the existence of con-
                                                                     contracting activity a course of action                    flicting roles that might bias a con-
                                                                     for resolving the conflict (see 9.506).                    tractor’s judgment; and
                                                                       (d) In fulfilling their responsibilities                    (b) Preventing unfair competitive ad-
                                                                     for identifying and resolving potential                    vantage. In addition to the other situa-
                                                                     conflicts, contracting officers should                     tions described in this subpart, an un-
                                                                     avoid creating unnecessary delays, bur-                    fair competitive advantage exists
                                                                     densome information requirements,                          where a contractor competing for
                                                                     and excessive documentation. The con-                      award of any Federal contract pos-
                                                                     tracting officer’s judgment need be for-                   sesses—
                                                                     mally documented only when a sub-                             (1) Proprietary information that was
                                                                                                                                obtained from a Government official
                                                                     stantive issue concerning potential or-
                                                                                                                                without proper authorization; or
                                                                     ganizational conflict of interest exists.
                                                                                                                                   (2) Source selection information (as
                                                                       (e) The contracting officer shall                        defined in 2.101) that is relevant to the
                                                                     award the contract to the apparent                         contract but is not available to all
                                                                     successful offeror unless a conflict of                    competitors, and such information
                                                                     interest is determined to exist that                       would assist that contractor in obtain-
                                                                     cannot be avoided or mitigated. Before                     ing the contract.
                                                                     determining to withhold award based
                                                                     on conflict of interest considerations,                    [48 FR 42142, Sept. 19, 1983, as amended at 55
                                                                                                                                FR 42686, Oct. 22, 1990; 56 FR 55377, Oct. 25,
                                                                     the contracting officer shall notify the
                                                                                                                                1991; 62 FR 232, Jan. 2, 1997; 64 FR 32748, June
                                                                     contractor, provide the reasons there-                     17, 1999; 67 FR 13063, Mar. 20, 2002; 84 FR 19845,
                                                                     for, and allow the contractor a reason-                    May 6, 2019]
                                                                     able opportunity to respond. If the con-
                                                                     tracting officer finds that it is in the                   9.505–1 Providing systems engineering
                                                                     best interest of the United States to                          and technical direction.




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                                                                     award the contract notwithstanding a                         (a) A contractor that provides sys-
                                                                     conflict of interest, a request for waiv-                  tems engineering and technical direc-
                                                                     er shall be submitted in accordance                        tion for a system but does not have
                                                                     with 9.503. The waiver request and deci-                   overall contractual responsibility for

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                                                                     Federal Acquisition Regulation                                                                       9.505–2

                                                                     its development, its integration, as-                      ance is supervised and controlled by
                                                                     sembly, and checkout, or its produc-                       Government representatives.
                                                                     tion shall not—                                              (2) If a single contractor drafts com-
                                                                       (1) Be awarded a contract to supply                      plete specifications for nondevelop-
                                                                     the system or any of its major compo-                      mental equipment, it should be elimi-
                                                                     nents; or                                                  nated for a reasonable time from com-
                                                                       (2) Be a subcontractor or consultant                     petition for production based on the
                                                                     to a supplier of the system or any of its                  specifications. This should be done in
                                                                     major components.                                          order to avoid a situation in which the
                                                                       (b) Systems engineering includes a                       contractor could draft specifications
                                                                     combination of substantially all of the                    favoring its own products or capabili-
                                                                     following activities: determining speci-                   ties. In this way the Government can
                                                                     fications, identifying and resolving                       be assured of getting unbiased advice
                                                                     interface problems, developing test re-                    as to the content of the specifications
                                                                     quirements, evaluating test data, and                      and can avoid allegations of favoritism
                                                                     supervising design. Technical direction                    in the award of production contracts.
                                                                     includes a combination of substantially                      (3) In development work, it is normal
                                                                     all of the following activities: devel-                    to select firms that have done the most
                                                                     oping work statements, determining
                                                                                                                                advanced work in the field. These firms
                                                                     parameters, directing other contrac-
                                                                                                                                can be expected to design and develop
                                                                     tors’ operations, and resolving tech-
                                                                                                                                around their own prior knowledge. De-
                                                                     nical controversies. In performing
                                                                                                                                velopment contractors can frequently
                                                                     these activities, a contractor occupies
                                                                     a highly influential and responsible po-                   start production earlier and more
                                                                     sition in determining a system’s basic                     knowledgeably than firms that did not
                                                                     concepts and supervising their execu-                      participate in the development, and
                                                                     tion by other contractors. Therefore                       this can affect the time and quality of
                                                                     this contractor should not be in a posi-                   production, both of which are impor-
                                                                     tion to make decisions favoring its own                    tant to the Government. In many in-
                                                                     products or capabilities.                                  stances the Government may have fi-
                                                                                                                                nanced the development. Thus, while
                                                                     [48 FR 42142, Sept. 19, 1983, as amended at 84             the development contractor has a com-
                                                                     FR 19846, May 6, 2019]
                                                                                                                                petitive advantage, it is an unavoidable
                                                                     9.505–2 Preparing specifications                   or      one that is not considered unfair; hence
                                                                         work statements.                                       no prohibition should be imposed.
                                                                                                                                  (b)(1) If a contractor prepares, or as-
                                                                       (a)(1) If a contractor prepares and                      sists in preparing, a work statement to
                                                                     furnishes complete specifications cov-
                                                                                                                                be used in competitively acquiring a
                                                                     ering nondevelopmental items, to be
                                                                                                                                system or services—or provides mate-
                                                                     used in a competitive acquisition, that
                                                                                                                                rial leading directly, predictably, and
                                                                     contractor shall not be allowed to fur-
                                                                                                                                without delay to such a work state-
                                                                     nish these items, either as a prime con-
                                                                                                                                ment—that contractor may not supply
                                                                     tractor or as a subcontractor, for a rea-
                                                                     sonable period of time including, at                       the system, major components of the
                                                                     least, the duration of the initial pro-                    system, or the services unless—
                                                                     duction contract. The restriction in                         (i) It is the sole source;
                                                                     this paragraph (a)(1) shall not apply                        (ii) It has participated in the develop-
                                                                     to—                                                        ment and design work; or
                                                                       (i) Contractors that furnish at Gov-                       (iii) More than one contractor has
                                                                     ernment request specifications or data                     been involved in preparing the work
                                                                     regarding a product they provide, even                     statement.
                                                                     though the specifications or data may                        (2) Agencies should normally prepare
                                                                     have been paid for separately or in the                    their own work statements. When con-
                                                                     price of the product; or                                   tractor assistance is necessary, the
                                                                       (ii) Situations in which contractors,                    contractor might often be in a position




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     acting as industry representatives,                        to favor its own products or capabili-
                                                                     help Government agencies prepare, re-                      ties. To overcome the possibility of
                                                                     fine, or coordinate specifications, re-                    bias, contractors are prohibited from
                                                                     gardless of source, provided this assist-                  supplying a system or services acquired

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                                                                     9.505–3                                                                48 CFR Ch. 1 (10–1–25 Edition)

                                                                     on the basis of work statements grow-                      consultants which, if used in connec-
                                                                     ing out of their services, unless ex-                      tion with an acquisition, may give the
                                                                     cepted in paragraph (b)(1) of this sec-                    contractor an unfair competitive ad-
                                                                     tion.                                                      vantage. Contractors should make in-
                                                                       (3) For the reasons given in para-                       quiries of marketing consultants to en-
                                                                     graph (a)(3) of this section, no prohibi-                  sure that the marketing consultant has
                                                                     tions are imposed on development and                       provided no unfair competitive advan-
                                                                     design contractors.                                        tage.
                                                                     [48 FR 42142, Sept. 19, 1983, as amended at 84             [48 FR 42142, Sept. 19, 1983, as amended at 55
                                                                     FR 19846, May 6, 2019]                                     FR 42686, Oct. 22, 1990; 56 FR 55377, Oct. 25,
                                                                                                                                1991; 62 FR 235, Jan. 2, 1997; 84 FR 19846, May
                                                                     9.505–3      Providing evaluation services.                6, 2019]
                                                                       Contracts for the evaluation of offers
                                                                     for products or services shall not be                      9.506   Procedures.
                                                                     awarded to a contractor that will                            (a) If information concerning pro-
                                                                     evaluate its own offers for products or                    spective contractors is necessary to
                                                                     services, or those of a competitor,                        identify and evaluate potential organi-
                                                                     without proper safeguards to ensure                        zational conflicts of interest or to de-
                                                                     objectivity to protect the Govern-                         velop recommended actions, con-
                                                                     ment’s interests.                                          tracting officers should first seek the
                                                                     [62 FR 12694, Mar. 17, 1997]                               information from within the Govern-
                                                                                                                                ment or from other readily available
                                                                     9.505–4 Obtaining access                to   propri-       sources. Government sources include
                                                                         etary information.                                     the files and the knowledge of per-
                                                                       (a) When a contractor requires pro-                      sonnel within the contracting office,
                                                                     prietary information from others to                        other contracting offices, the cognizant
                                                                     perform a Government contract and                          contract administration and audit ac-
                                                                     can use the leverage of the contract to                    tivities and offices concerned with con-
                                                                     obtain it, the contractor may gain an                      tract     financing.    Non-Government
                                                                     unfair competitive advantage unless                        sources include publications and com-
                                                                     restrictions are imposed. These restric-                   mercial services, such as credit rating
                                                                     tions protect the information and en-                      services, trade and financial journals,
                                                                     courage companies to provide it when                       and business directories and registers.
                                                                     necessary for contract performance.                          (b) If the contracting officer decides
                                                                     They are not intended to protect infor-                    that a particular acquisition involves a
                                                                     mation—                                                    significant potential organizational
                                                                       (1) Furnished voluntarily without                        conflict of interest, the contracting of-
                                                                     limitations on its use; or                                 ficer shall, before issuing the solicita-
                                                                       (2) Available to the Government or                       tion, submit for approval to the chief
                                                                     contractor from other sources without                      of the contracting office (unless a high-
                                                                     restriction.                                               er level official is designated by the
                                                                       (b) A contractor that gains access to                    agency)—
                                                                     proprietary information of other com-
                                                                                                                                  (1) A written analysis, including a
                                                                     panies in performing advisory and as-
                                                                                                                                recommended course of action for
                                                                     sistance services for the Government
                                                                                                                                avoiding, neutralizing, or mitigating
                                                                     must agree with the other companies
                                                                                                                                the conflict, based on the general rules
                                                                     to protect their information from un-
                                                                                                                                in 9.505 or on another basis not ex-
                                                                     authorized use or disclosure for as long
                                                                     as it remains proprietary and refrain                      pressly stated in that section;
                                                                     from using the information for any                           (2) A draft solicitation provision (see
                                                                     purpose other than that for which it                       9.507–1); and
                                                                     was furnished. The contracting officer                       (3) If appropriate, a proposed con-
                                                                     shall obtain copies of these agreements                    tract clause (see 9.507–2).
                                                                     and ensure that they are properly exe-                       (c) The approving official shall—




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     cuted.                                                       (1) Review the contracting officer’s
                                                                       (c) Contractors also obtain propri-                      analysis and recommended course of
                                                                     etary and source selection information                     action, including the draft provision
                                                                     by acquiring the services of marketing                     and any proposed clause;

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                                                                     Federal Acquisition Regulation                                                                       9.508

                                                                        (2) Consider the benefits and det-                      9.507–2     Contract clause.
                                                                     riments to the Government and pro-
                                                                                                                                  (a) If, as a condition of award, the
                                                                     spective contractors; and
                                                                        (3) Approve, modify, or reject the rec-                 contractor’s eligibility for future
                                                                     ommendations in writing.                                   prime contract or subcontract awards
                                                                        (d) The contracting officer shall—                      will be restricted or the contractor
                                                                        (1) Include the approved provision(s)                   must agree to some other restraint, the
                                                                     and any approved clause(s) in the solic-                   solicitation shall contain a proposed
                                                                     itation or the contract, or both;                          clause that specifies both the nature
                                                                        (2) Consider additional information                     and duration of the proposed restraint.
                                                                     provided by prospective contractors in                     The contracting officer shall include
                                                                     response to the solicitation or during                     the clause in the contract, first negoti-
                                                                     negotiations; and                                          ating the clause’s final terms with the
                                                                        (3) Before awarding the contract, re-                   successful offeror, if it is appropriate
                                                                     solve the conflict or the potential con-                   to do so (see 9.506(d)).
                                                                     flict in a manner consistent with the                        (b) The restraint imposed by a clause
                                                                     approval or other direction by the head                    shall be limited to a fixed term of rea-
                                                                     of the contracting activity.                               sonable duration, sufficient to avoid
                                                                        (e) If, during the effective period of                  the circumstance of unfair competitive
                                                                     any restriction (see 9.507), a con-                        advantage or potential bias. This pe-
                                                                     tracting office transfers acquisition re-                  riod varies. It might end, for example,
                                                                     sponsibility for the item or system in-                    when the first production contract
                                                                     volved, it shall notify the successor                      using the contractor’s specifications or
                                                                     contracting office of the restriction,                     work statement is awarded, or it might
                                                                     and send a copy of the contract under                      extend through the entire life of a sys-
                                                                     which the restriction was imposed.                         tem for which the contractor has per-
                                                                     [55 FR 42686, Oct. 22, 1990, as amended at 62
                                                                                                                                formed systems engineering and tech-
                                                                     FR 235, Jan. 2, 1997]                                      nical direction. In every case, the re-
                                                                                                                                striction shall specify termination by a
                                                                     9.507 Solicitation provisions and con-                     specific date or upon the occurrence of
                                                                         tract clause.                                          an identifiable event.
                                                                     9.507–1 Solicitation provisions.                           [55 FR 42687, Oct. 22, 1990, as amended at 84
                                                                                                                                FR 19846, May 6, 2019]
                                                                       As indicated in the general rules in
                                                                     9.505, significant potential organiza-                     9.508   Examples.
                                                                     tional conflicts of interest are nor-
                                                                     mally resolved by imposing some re-                          The examples in paragraphs (a)
                                                                     straint, appropriate to the nature of                      through (i) of this section illustrate
                                                                     the conflict, upon the contractor’s                        situations in which questions con-
                                                                     eligibilityfor future contracts or sub-                    cerning organizational conflicts of in-
                                                                     contracts. Therefore, affected solicita-                   terest may arise. They are not all in-
                                                                     tions shall contain a provision that—                      clusive, but are intended to help the
                                                                       (a) Invites offerors’ attention to this                  contracting officer apply the general
                                                                     subpart;                                                   rules in 9.505 to individual contract sit-
                                                                       (b) States the nature of the potential                   uations.
                                                                     conflict as seen by the contracting offi-                    (a) Company A agrees to provide sys-
                                                                     cer;                                                       tems engineering and technical direc-
                                                                       (c) States the nature of the proposed                    tion for the Navy on the powerplant for
                                                                     restraint upon future contractor ac-                       a group of submarines (i.e., turbines,
                                                                     tivities; and                                              drive shafts, propellers, etc.). Company
                                                                       (d) Depending on the nature of the                       A should not be allowed to supply any
                                                                     acquisition, states whether or not the                     powerplant components. Company A
                                                                     terms of any proposed clause and the                       can, however, supply components of
                                                                     application of this subpart to the con-                    the submarine unrelated to the power-
                                                                     tract are subject to negotiation.                          plant (e.g., fire control, navigation,




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     [55 FR 42687, Oct. 22, 1990, as amended at 56              etc.). In this example, the system is the
                                                                     FR 55377, Oct. 25, 1991; 60 FR 34748, July 3,              powerplant, not the submarine, and the
                                                                     1995; 60 FR 49721, Sept. 26, 1995; 62 FR 235,              ban on supplying components is lim-
                                                                     Jan. 2, 1997; 84 FR 19846, May 6, 2019]                    ited to those for the system only.

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                                                                     9.601                                                                  48 CFR Ch. 1 (10–1–25 Edition)

                                                                       (b) Company A is the systems engi-                         (h) Company A is selected to study
                                                                     neering and technical direction con-                       the use of lasers in communications.
                                                                     tractor for system X. After some                           The agency intends to ask that firms
                                                                     progress, but before completion, the                       doing research in the field make pro-
                                                                     system is canceled. Later, system Y is                     prietary information available to Com-
                                                                     developed to achieve the same purposes                     pany A. The contract must require
                                                                     as system X, but in a fundamentally                        Company A to—
                                                                     different fashion. Company B is the                          (1) Enter into agreements with these
                                                                     systems engineering and technical di-                      firms to protect any proprietary infor-
                                                                     rection contractor for system Y. Com-                      mation they provide; and
                                                                     pany A may supply system Y or its                            (2) Refrain from using the informa-
                                                                     components.                                                tion in supplying lasers to the Govern-
                                                                       (c) Company A develops new elec-                         ment or for any purpose other than
                                                                     tronic equipment and, as a result of                       that for which it was intended.
                                                                     this development, prepares specifica-                        (i) An agency that regulates an in-
                                                                     tions. Company A may supply the                            dustry wishes to develop a system for
                                                                     equipment.                                                 evaluating and processing license ap-
                                                                       (d) XYZ Tool Company and PQR Ma-                         plications. Contractor X helps develop
                                                                     chinery Company, representing the                          the system and process the applica-
                                                                     American Tool Institute, work under                        tions. Contractor X should be prohib-
                                                                     Government supervision and control to                      ited from acting as a consultant to any
                                                                     refine specifications or to clarify the                    of the applicants during its period of
                                                                     requirements of a specific acquisition.                    performance and for a reasonable pe-
                                                                     These companies may supply the item.                       riod thereafter.
                                                                       (e) Before an acquisition for informa-                   [48 FR 42142, Sept. 19, 1983. Redesignated at
                                                                     tion technology is conducted, Company                      55 FR 42687, Oct. 22, 1990; 61 FR 41469, Aug. 8,
                                                                     A is awarded a contract to prepare data                    1996; 84 FR 19846, May 6, 2019]
                                                                     system specifications and equipment
                                                                     performance criteria to be used as the                        Subpart 9.6—Contractor Team
                                                                     basis for the equipment competition.                                  Arrangements
                                                                     Since the specifications are the basis
                                                                     for selection of commercial hardware,                      9.601   Definition.
                                                                     a potential conflict of interest exists.
                                                                                                                                  Contractor team arrangement, as used
                                                                     Company A should be excluded from
                                                                                                                                in this subpart, means an arrangement
                                                                     the initial follow-on information tech-
                                                                                                                                in which—
                                                                     nology hardware acquisition.
                                                                                                                                  (1) Two or more companies form a
                                                                       (f) Company A receives a contract to
                                                                                                                                partnership or joint venture to act as a
                                                                     define the detailed performance char-
                                                                                                                                potential prime contractor; or
                                                                     acteristics an agency will require for
                                                                                                                                  (2) A potential prime contractor
                                                                     purchasing rocket fuels. Company A
                                                                                                                                agrees with one or more other compa-
                                                                     has not developed the particular fuels.
                                                                                                                                nies to have them act as its sub-
                                                                     When the definition contract is award-
                                                                                                                                contractors under a specified Govern-
                                                                     ed, it is clear to both parties that the
                                                                                                                                ment contract or acquisition program.
                                                                     agency will use the performance char-
                                                                     acteristics arrived at to choose com-                      [48 FR 42142, Sept. 19, 1983, as amended at 66
                                                                     petitively a contractor to develop or                      FR 2128, Jan. 10, 2001]
                                                                     produce the fuels. Company A may not
                                                                     be awarded this follow-on contract.                        9.602   General.
                                                                       (g) Company A receives a contract to                       (a) Contractor team arrangements
                                                                     prepare a detailed plan for scientific                     may be desirable from both a Govern-
                                                                     and technical training of an agency’s                      ment and industry standpoint in order
                                                                     personnel. It suggests a curriculum                        to enable the companies involved to—
                                                                     that the agency endorses and incor-                          (1) Complement each other’s unique
                                                                     porates in its request for proposals to                    capabilities; and




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                     institutions to establish and conduct                        (2) Offer the Government the best
                                                                     the training. Company A may not be                         combination of performance, cost, and
                                                                     awarded a contract to conduct the                          delivery for the system or product
                                                                     training.                                                  being acquired.

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                                                                     Federal Acquisition Regulation                                                                        9.702

                                                                       (b) Contractor team arrangements                          Subpart 9.7—Defense Production
                                                                     may be particularly appropriate in                             Pools and Research and De-
                                                                     complex research and development ac-                           velopment Pools
                                                                     quisitions, but may be used in other
                                                                     appropriate    acquisitions,   including                    9.701   Definition.
                                                                     production.                                                   Pool, as used in this subpart, means a
                                                                       (c) The companies involved normally                       group of concerns (see 19.001) that
                                                                     form a contractor team arrangement                          have—
                                                                     before submitting an offer. However,                          (1) Associated together in order to
                                                                     they may enter into an arrangement                          obtain and perform, jointly or in con-
                                                                     later in the acquisition process, includ-                   junction with each other, defense pro-
                                                                     ing after contract award.                                   duction or research and development
                                                                                                                                 contracts;
                                                                     [48 FR 42142, Sept. 19, 1983, as amended 84 FR
                                                                     19846, May 6, 2019]
                                                                                                                                   (2) Entered into an agreement gov-
                                                                                                                                 erning their organization, relationship,
                                                                     9.603       Policy.                                         and procedures; and
                                                                                                                                   (3) Obtained approval of the agree-
                                                                       The Government will recognize the                         ment by either—
                                                                     integrity and validity of contractor                          (i) The Small Business Administra-
                                                                     team arrangements; provided, the ar-                        tion (SBA) under section 9 or 11 of the
                                                                     rangements are identified and company                       Small Business Act (15 U.S.C. 638 or
                                                                     relationships are fully disclosed in an                     640) (see 13 CFR part 125); or
                                                                     offer or, for arrangements entered into                       (ii) A designated official under Part
                                                                     after submission of an offer, before the                    V of Executive Order 10480, August 14,
                                                                     arrangement becomes effective. The                          1953 (18 FR 4939, August 20, 1953) and
                                                                     Government will not normally require                        section 708 of the Defense Production
                                                                     or encourage the dissolution of con-                        Act of 1950 (50 U.S.C. App. 2158).
                                                                     tractor team arrangements.                                  [48 FR 42142, Sept. 19, 1983, as amended at 51
                                                                                                                                 FR 2649, Jan. 17, 1986; 66 FR 2128, Jan. 10,
                                                                     9.604       Limitations.                                    2001]
                                                                       Nothing in this subpart authorizes
                                                                     contractor team arrangements in vio-                        9.702   Contracting with pools.
                                                                     lation of antitrust statutes or limits                        (a) Except as specified in this sub-
                                                                     the Government’s rights to—                                 part, a pool shall be treated the same
                                                                       (a) Require consent to subcontracts                       as any other prospective or actual con-
                                                                     (see subpart 44.2);                                         tractor.
                                                                       (b) Determine, on the basis of the                          (b) The contracting officer shall not
                                                                     stated contractor team arrangement,                         award a contract to a pool unless the
                                                                                                                                 offer leading to the contract is sub-
                                                                     the responsibility of the prime con-
                                                                                                                                 mitted by the pool in its own name or
                                                                     tractor (see subpart 9.1);
                                                                                                                                 by an individual pool member ex-
                                                                       (c) Provide to the prime contractor                       pressly stating that the offer is on be-
                                                                     data rights owned or controlled by the                      half of the pool.
                                                                     Government;                                                   (c) Upon receipt of an offer submitted
                                                                       (d) Pursue its policies on competitive                    by a group representing that it is a
                                                                     contracting, subcontracting, and com-                       pool, the contracting officer shall
                                                                     ponent breakout after initial produc-                       verify its approved status with the
                                                                     tion or at any other time; and                              SBA District Office Director or other
                                                                       (e) Hold the prime contractor fully                       approving agency and document the
                                                                     responsible for contract performance,                       contract file that the verification was
                                                                     regardless of any team arrangement                          made.
                                                                     between the prime contractor and its                          (d) Pools approved by the SBA under
                                                                     subcontractors.                                             the Small Business Act are entitled to
                                                                                                                                 the preferences and privileges accorded




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                                                                                 to small business concerns. Approval
                                                                                                                                 under the Defense Production Act does
                                                                                                                                 not confer these preferences and privi-
                                                                                                                                 leges.

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                                                                     9.703                                                                   48 CFR Ch. 1 (10–1–25 Edition)

                                                                       (e) Before awarding a contract to an                      10.001 Policy.
                                                                     unincorporated pool, the contracting                          (a) Agencies shall—
                                                                     officer shall require each pool member                        (1) Ensure that legitimate needs are
                                                                     participating in the contract to furnish                    identified and trade-offs evaluated to
                                                                     a certified copy of a power of attorney                     acquire items that meet those needs;
                                                                     identifying the agent authorized to                           (2) Conduct market research appro-
                                                                     sign the offer or contract on that mem-                     priate to the circumstances—
                                                                     ber’s behalf. The contracting officer                         (i) Before developing new require-
                                                                     shall attach a copy of each power of at-                    ments documents for an acquisition by
                                                                     torney to each signed copy of the con-                      that agency;
                                                                     tract retained by the Government.                             (ii) Before soliciting offers for acqui-
                                                                     [48 FR 42142, Sept. 19, 1983, as amended at 61              sitions with an estimated value in ex-
                                                                     FR 67410, Dec. 20, 1996]                                    cess of the simplified acquisition
                                                                                                                                 threshold;
                                                                     9.703 Contracting with individual pool                        (iii) Before soliciting offers for acqui-
                                                                         members.                                                sitions with an estimated value less
                                                                       (a) Pool members may submit indi-                         than the simplified acquisition thresh-
                                                                     vidual offers, independent of the pool.                     old when adequate information is not
                                                                     However, the contracting officer shall                      available and the circumstances justify
                                                                     not consider an independent offer by a                      its cost;
                                                                     pool member if that pool member par-                          (iv) Before soliciting offers for acqui-
                                                                     ticipates in a competing offer sub-                         sitions that could lead to consolidation
                                                                     mitted by the pool.                                         or bundling (15 U.S.C. 644(e)(2)(A) and
                                                                                                                                 15 U.S.C. 657q);
                                                                       (b) If a pool member submits an indi-                       (v) Before awarding a task or deliv-
                                                                     vidual offer, independent of the pool,                      ery order under an indefinite-delivery-
                                                                     the contracting officer shall consider                      indefinite-quantity (ID/IQ) contract
                                                                     the pool agreement, along with other                        (e.g., GWACs, MACs) for other than a
                                                                     factors, in determining whether that                        commercial product or commercial
                                                                     pool member is a responsible prospec-                       service in excess of the simplified ac-
                                                                     tive contractor under subpart 9.1.                          quisition threshold 10 U.S.C. 3453(c));
                                                                                                                                 and
                                                                          PART 10—MARKET RESEARCH                                  (vi) On an ongoing basis, take advan-
                                                                                                                                 tage (to the maximum extent prac-
                                                                     Sec.                                                        ticable) of commercially available
                                                                     10.000      Scope of part.                                  market research methods in order to
                                                                     10.001      Policy.                                         effectively identify the capabilities of
                                                                     10.002      Procedures.                                     small businesses and new entrants into
                                                                     10.003      Contract clause.                                Federal contracting that are available
                                                                       AUTHORITY: 41 U.S.C. 1121(b); 40 U.S.C.                   in the marketplace for meeting the re-
                                                                     121(c); 10 U.S.C. chapter 4 and 10 U.S.C. chap-             quirements of the agency in further-
                                                                     ter 137 legacy provisions (see 10 U.S.C. 3016);             ance of—
                                                                     and 51 U.S.C. 20113.                                          (A) A contingency operation or de-
                                                                       SOURCE: 60 FR 48237, Sept. 18, 1995, unless
                                                                                                                                 fense against or recovery from cyber,
                                                                     otherwise noted.                                            nuclear, biological, chemical, or radio-
                                                                                                                                 logical attack; and
                                                                     10.000       Scope of part.                                   (B) Disaster relief to include debris
                                                                                                                                 removal, distribution of supplies, re-
                                                                       This part prescribes policies and pro-                    construction, and other disaster or
                                                                     cedures for conducting market re-                           emergency relief activities (see 26.205);
                                                                     search to arrive at the most suitable                       and
                                                                     approach to acquiring, distributing,                          (3) Use the results of market research
                                                                     and supporting supplies and services.                       to—
                                                                     This part implements the requirements                         (i) Determine if sources capable of
                                                                     of 41 U.S.C. 3306(a)(1), 41 U.S.C. 3307, 10                 satisfying the agency’s requirements
                                                                     U.S.C. 3453, and 6 U.S.C. 796.




RMAJETTE on LAPJN3WLY3PROD with CFR
                                                                                                                                 exist;
                                                                     [60 FR 48237, Sept. 18, 1995, as amended at 74                (ii) Determine if commercial prod-
                                                                     FR 52849, Oct. 14, 2009; 79 FR 24199, Apr. 29,              ucts or commercial services, or, to the
                                                                     2014; 87 FR 73896, Dec. 1, 2022]                            extent commercial products suitable to

                                                                                                                           248



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