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subpart 209.1--responsible prospective contractors

(Revised December 11, 2014)

 

 



 209.101 Definitions.
 209.104 Standards.
 209.104-1 General standards.
 209.104-4 Subcontractor responsibility.
 209.104-70 Solicitation provisions.
 209.105 Procedures.
 209.105-1 Obtaining information.
 209.105-2 Determinations and documentation.
 209.105-2-70 Inclusion of determination of contractor fault in Federal Awardee Performance and
                     Integrity Information System (FAPIIS).

 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 country that is a state sponsor of terrorism. (See 225.771.)

 

              (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 Security Directorate, Office of the Deputy Under Secretary of Defense, Human Intelligence, Counterintelligence, and Security.

 

                    (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 Undersecretary of Defense for 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 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 that—

 

                                    (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.

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. If the solicitation includes the provision at FAR 52.204-7, do not separately list the provision 252.209-7002 in the solicitation.

 

209.105  Procedures.  

 

209.105-1  Obtaining information.  

        

      (1)  For guidance on using the Exclusion section of the System for Award Management, see PGI 209.105-1 (DFARS/PGI view).

 

      (2)  A satisfactory performance record is a factor in determining contractor responsibility (see FAR 9.104-1(c)).  One source of information relating to contractor performance is the Past Performance Information Retrieval System (PPIRS), available at www.ppirs.gov.  Information relating to contract terminations for cause and for default is also available through PPIRS (see subpart 42.15).   This termination information is just one consideration in determining contractor responsibility.

 

209.105-2  Determinations and documentation.

 

      (a)  The contracting officer shall submit a copy of a determination of nonresponsibility to the appropriate debarring and suspending official listed in 209.403.

 

209.105-2-70  Inclusion of determination of contractor fault in Federal Awardee Performance and Integrity Information System (FAPIIS).

 

If the contractor or a subcontractor at any tier is not subject to the jurisdiction of the U.S. courts and the DoD appointing official that requested a DoD investigation makes a final determination that a contractor’s or subcontractor’s gross negligence or reckless disregard for the safety of civilian or military personnel of the Government caused serious bodily injury or death of such personnel, the contracting officer shall enter in FAPIIS the appropriate information regarding such determination within three days of receiving notice of the determination, pursuant to section 834 of the National Defense Authorization Act for Fiscal Year 2011 (Public Law 111-383). Information posted in FAPIIS regarding such determinations will be publicly available.

 

209.106  Preaward surveys.

When requesting a preaward survey, follow the procedures at PGI 209.106 (DFARS/PGI view).

 

See DoD Class Deviation 2012-O0004, Prohibition Against Contracting with Corporations That Have an Unpaid Delinquent Tax Liability or a Felony Conviction under Federal Law, issued January 23, 2012. This deviation is effective until incorporated in the FAR or otherwise rescinded.

 

See DoD Class Deviation 2012-O0007, Prohibition Against Contracting with Corporations that have a Felony Conviction under Federal or State Law, issued March 9, 2012. This deviation is effective for contract actions issued using DoD funds appropriated by the Consolidated Appropriations Act, 2012 (Pub. L. 112-74).

 

See DoD Class Deviation 2013-O0006, Prohibition Against Using Fiscal Year 2013 Funds to Contract with Corporations that have an Unpaid Delinquent Tax Liability or a Felony Conviction under Federal Law, issued January 22, 2013. This deviation is effective for contract actions issued using DoD funds appropriated by the Continuing Appropriations Resolution, 2013 (Pub. L. 112-175).

 

See DoD Class Deviation 2013-O0010, Prohibition Against Using Fiscal Year 2013 Funds to Contract with Corporations that have an Unpaid Delinquent Tax Liability or a Felony Conviction under Federal Law, issued April 8, 2013. This deviation is effective for contract actions issued using DoD funds appropriated by the Consolidated and Further Continuing Appropriations Act, 2013 (Public Law 113-6).

 

See DoD Class Deviation 2014-O0004, Prohibition Against Using FY 2014 Funds to Contract with Corporations that Have an Unpaid Delinquent Tax Liability or a Felony Conviction under Federal Law, issued February 21, 2014. This deviation is effective for contract actions issued using DoD funds appropriated by the Continuing Appropriations Act, 2014 (Pub. L. 113-46).

 

See DoD Class Deviation 2014-O0009, Prohibition Against Using FY 2014 Funds to Contract with Corporations that Have an Unpaid Delinquent Tax Liability or a Felony Conviction under Federal Law, issued February 21, 2014. This deviation is effective for contract actions issued using DoD funds appropriated by the Department of Defense Appropriations Act, 2014, and the Military Construction and Veterans Affairs, and Related Agencies Appropriations Act, 2014 (Pub. L. 113-76, Divisions C and J, enacted January 17, 2014).

 

 


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