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subpart 209.1--responsible prospective contractors

(Revised December 15, 2004)

 

 



 209.101 Definitions
 209.104 Standards
 209.104-1 General standards
 209.104-4 Subcontractor responsibility
 209.104-70 Solicitation provisions
 209.105-2 Determinations and documentation
 209.106 Preaward surveys


209.101  Definitions
.

“Entity controlled by a foreign government,” “foreign government,” and “proscribed information” are defined in the provision at 252.209-7002, Disclosure of Ownership or Control by a Foreign Government.

 

209.104  Standards.

 

209.104-1  General standards.

 

      (e)  For cost-reimbursement or incentive type contracts, or contracts which provide for progress payments based on costs or on a percentage or stage of completion, the prospective contractor’s accounting system and related internal controls must provide reasonable assurance that—

 

              (i)  Applicable laws and regulations are complied with;

 

              (ii)  The accounting system and cost data are reliable;

 

              (iii)  Risk of misallocations and mischarges are minimized; and

 

              (iv)  Contract allocations and charges are consistent with invoice procedures.

 

      (g)(i)  Ownership or control by the government of a terrorist country.

 

                    (A)  Under 10 U.S.C. 2327(b), a contracting officer shall not award a contract of $100,000 or more to a firm or to a subsidiary of a firm when a foreign government—

 

                            (1)  Either directly or indirectly, has a significant interest—

 

                                    (i)  In the firm; or

 

                                    (ii)  In the subsidiary or the firm that owns the subsidiary; and

 

                            (2)  Has been determined by the Secretary of State under 50 U.S.C. App. 2405(j)(1)(A) to be a government of a country that has repeatedly provided support for acts of international terrorism.

 

                    (B)  The Secretary of Defense may waive the prohibition in paragraph (g)(i)(A) of this subsection in accordance with 10 U.S.C. 2327(c).  This waiver authority may not be delegated.

 

              (ii)  Ownership or control by a foreign government when access to proscribed information is required.

 

                    (A)  Under 10 U.S.C. 2536(a), no DoD contract under a national security program may be awarded to an entity controlled by a foreign government if that entity requires access to proscribed information to perform the contract.

 

                    (B)  Whenever the contracting officer has a question about application of the provision at 252.209-7002, the contracting officer may seek advice from the Director, Defense Security Programs, Office of the Assistant Secretary of Defense for Command, Control, Communications and Intelligence.

 

                    (C)  In accordance with 10 U.S.C. 2536(b)(1)(A), the Secretary of Defense may waive the prohibition in paragraph (g)(ii)(A) of this subsection upon determining that the waiver is essential to the national security interests of the United States.  The Secretary has delegated authority to grant this waiver to the Assistant Secretary of Defense for Command, Control, Communications and Intelligence.  Waiver requests, prepared by the requiring activity in coordination with the contracting officer, shall be processed through the Director of Defense Procurement and Acquisition Policy, Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics), and shall include a proposed national interest determination.  The proposed national interest determination, prepared by the requiring activity in coordination with the contracting officer, shall include:

 

                            (1)  Identification of the proposed awardee, with a synopsis of its foreign ownership (include solicitation and other reference numbers to identify the action);

 

                            (2)  General description of the acquisition and performance requirements;

 

                            (3)  Identification of the national security interests involved and the ways in which award of the contract helps advance those interests;

 

                            (4)  A statement as to availability of another entity with the capacity, capability and technical expertise to satisfy defense acquisition, technology base, or industrial base requirements; and

 

                            (5)  A description of any alternate means available to satisfy the requirement, e.g., use of substitute products or technology or alternate approaches to accomplish the program objectives.

 

                    (D)  In accordance with 10 U.S.C. 2536(b)(1)(B), the Secretary of Defense may, in the case of a contract awarded for environmental restoration, remediation, or waste management at a DoD facility, waive the prohibition in paragraph (g)(ii)(A) of this subsection upon¾

 

                            (1)  Determining that¾

 

                                    (i)  The waiver will advance the environmental restoration, remediation, or waste management objectives of DoD and will not harm the national security interests of the United States; and

 

                                    (ii)  The entity to which the contract is awarded is controlled by a foreign government with which the Secretary is authorized to exchange Restricted Data under section 144 c. of the Atomic Energy Act of 1954 (42 U.S.C. 2164(c)); and

 

                            (2)  Notifying Congress of the decision to grant the waiver.  The contract may be awarded only after the end of the 45-day period beginning on the date the notification is received by the appropriate Congressional committees.

 

209.104-4  Subcontractor responsibility.

Generally, the Canadian Commercial Corporation's (CCC) proposal of a firm as its subcontractor is sufficient basis for an affirmative determination of responsibility.  However, when the CCC determination of responsibility is not consistent with other information available to the contracting officer, the contracting officer shall request from CCC and any other sources whatever additional information is necessary to make the responsibility determination.

 

209.104-70  Solicitation provisions.

 

      (a)  Use the provision at 252.209-7001, Disclosure of Ownership or Control by the Government of a Terrorist Country, in all solicitations expected to result in contracts of $100,000 or more.  Any disclosure that the government of a terrorist country has a significant interest in an offeror or a subsidiary of an offeror shall be forwarded through the head of the agency to the Director of Defense Procurement and Acquisition Policy, ATTN:  OUSD(AT&L)DPAP(PAIC), 3060 Defense Pentagon, Washington, DC  20301-3060.

 

      (b)  Use the provision at 252.209-7002, Disclosure of Ownership or Control by a Foreign Government, in all solicitations, including those subject to the procedures in FAR Part 13, when access to proscribed information is necessary for contract performance.

 

209.105-2  Determinations and documentation.

 

      (a)  For guidance on submission of determinations to the appropriate debarring and suspending official, see PGI 209.105-2(a) (Pop-up Window or PGI Viewer Mode).

 

209.106  Preaward surveys.

When requesting a preaward survey, follow the procedures at PGI 209.106 (Pop-up Window or PGI Viewer Mode).


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