Before awarding any contract, the contracting officer must make an affirmative determination of responsibility with respect to the prospective contractor. FAR 9-104-1 contains seven standards that a contracting officer must address in making the determination. Yesterday, we looked at the first of these seven, the contractors financial capability to perform. Today we will discuss the second standard, the ability to meet the delivery or performance schedule.
A prospective contractor must be able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments. Obviously, businesses should not overextend themselves because when they do, quality and timeliness suffers - maybe not for the particular contract in question but in other areas, perhaps on other governmental business commitments.
Most companies respond to multiple solicitations, knowing that they won't win them all. If they were to be successful at a higher than normal "win" rate, they could face a situation of too much work for their available capacity.
We do not sense that this is a significant issue in the contracting community. In reviewing the GAO protest cases involving responsibility determinations, we found no instances where a prospective contractor appealed a negative determination based on its failure to meet this standard. Indeed, it would be unlikely for a contracting officer to have sufficient detailed contractor information to make a determination one way or another. The best they can do in these situations is write something to the effect that no information came to their attention that would indicate the prospective contractor would be unable to comply with the standard.
In making responsibility determinations, contracting officers are vested with a wide degree of discretion and, of necessity, must rely upon his or her business judgment in exercising that discretion. Although the determination must be factually supported and made in good faith, the ultimate decision appropriately is left to the agency since it must bear the effects of any difficulties experienced in obtaining the required performance.
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