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
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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]
209
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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
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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
210
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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-
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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.
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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
212
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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-
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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
213
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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
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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]
214
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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
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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-
215
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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
216
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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;
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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
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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
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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)).
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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.
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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-
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(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-
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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.
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(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
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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
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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).
226
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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
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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
227
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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
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(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.
228
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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,
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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
229
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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-
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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
230
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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—
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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—
231
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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
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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.
232
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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-
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nesses, and confront any person the
agency presents; and
(ii) Make a transcribed record of the
proceedings and make it available at
233
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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,
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(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
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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
235
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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
236
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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
237
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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—
238
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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.
239
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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
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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]
240
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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-
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(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
241
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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
242
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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
243
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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—
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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;
244
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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,
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[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
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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.
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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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