Responsibility Determinations - Refresher

Yesterday we discussed the U.S. Court of Federal Claims decision to essentially vacate a contracting officer's responsibility determination because it was not based on factual data. The decision actually called the contracting officer's decision arbitrary and capricious (i.e. impulsive or unpredictable). Being called arbitrary and capricious is not a tag to have associated with one's name, especially a contracting officer who, above all else, strives to be fair and objective in all matters pertaining to Government contracting. Those are fighting words.

Now we've discussed several times over the years the components of a responsibility determination. Perhaps the most comprehensive coverage was a seven-part series in November 2013. But by way of review, we'll summarize them here. The requirements to be deemed "responsible" come from FAR (Federal Acquisition Regulations) 9.104-1 which reads:

To be determined responsible, a prospective contractor must:

1. have adequate financial resources to perform the contract, or the ability to obtain them; 
2. be able to comply with the delivery or performance schedule; 
3. have a satisfactory performance record; 
4. have a satisfactory record of integrity; 
5. have the necessary organization to perform the work; 
6. have the necessary production, and technical equipment, and facilities; and 
7. be otherwise qualified and eligible to receive an award under applicable laws. 

If you recall yesterday's write-up on the Remington bid protest, the Court was particularly skeptical that Colt qualified under items 1 and 6; financial resources and production facilities.

Concerning the production facilities, FAR 9-104-3 defines evidence to support the existence of necessary production facilities to include commitments or explicit arrangements that will be in existence at the time of contract award, to rent, purchase, or otherwise acquire the needed facilities, equipment, other resources, or personnel. So, a prospective bidder need not actually have the facilities but must be able to show a firm commitment to acquire the needed resources. In the Remington case, the availability of the production facilities was in doubt at the time of the award due to uncertainties surrounding Colt's bankruptcy proceedings.