FAR 9.105-2 Nonresponsibility: What to Ask the Prime GC
On federal construction projects, submitting a responsive bid with the lowest price does not guarantee an award. The federal contracting officer must also verify that your firm meets required standards of contractor responsibility. When a small business faces a negative responsibility finding, strict procedural rules take over under FAR 9.105-2 on Acquisition.GOV. Whether you are bidding as a small prime general contractor or operating as a primary joint venture partner, asking the right questions can protect your standing, preserve your appeal rights, and control what information becomes public.
1. Has the Contracting Officer Written and Signed the Determination?
Under federal procurement regulations, a contracting officer's signing of a contract legally constitutes a determination that the prospective contractor is responsible for that specific contract. However, when an offer that would otherwise receive an award is rejected because the bidder is found nonresponsible, the contracting officer cannot rely on an informal verbal rejection. You should immediately ask the prime GC or federal contracting team whether a formal written determination exists.
Under FAR 9.105-2(a)(1), the contracting officer is required to make, sign, and place in the contract file a written determination of nonresponsibility. This document must clearly state the specific basis for the determination. In addition, the contract file must preserve all supporting documentation, including any preaward survey reports, FAPIIS information, and any applicable Certificate of Competency files.
2. Has the Finding Been Referred to the Small Business Administration?
If you are a responsive small business and the contracting officer decides that your firm lacks certain elements of responsibility, the contracting officer does not have the final unilateral word on the award. You must ask the prime GC or agency whether the required statutory referral has taken place.
According to FAR 9.105-2(a)(2), if a contracting officer determines that a responsive small business lacks certain responsibility elements, the officer must comply with the referral procedures established in subpart 19.6. This referral allows the small firm to apply for a Certificate of Competency through the Small Business Administration (SBA). Ask the GC immediately if the referral paperwork has been forwarded so your team can prepare your submission without delay.
3. Did the Small Business Administration Issue a Certificate of Competency?
When an issue goes to the SBA, the outcome dictates the contracting officer's next legal obligation. You should ask whether the SBA has completed its evaluation and issued a formal decision. Under FAR 9.105-2(a)(2), when a Certificate of Competency is issued by the SBA for a small business concern:
- The contracting officer shall accept the Small Business Administration's decision to issue the Certificate of Competency.
- The contracting officer shall award the contract to the small business concern.
This mandate leaves no room for agency discretion if the SBA rules in your favor, making the tracking of the SBA review paramount for the entire project team.
4. Does the Determination Meet the Triggers for FAPIIS Reporting?
If the SBA does not issue a Certificate of Competency, the negative finding may be documented in the Federal Awardee Performance and Integrity Information System (FAPIIS). Ask the GC whether the project conditions trigger this formal entry. Under FAR 9.105-2 on Acquisition.GOV, the contracting officer must document a nonresponsibility determination in FAPIIS only if all three of the following criteria are met:
- The contract is valued at more than the simplified acquisition threshold;
- The nonresponsibility finding is specifically based on a lack of a satisfactory performance record or a satisfactory record of integrity and business ethics; and
- The Small Business Administration does not issue a Certificate of Competency.
When these conditions apply, the contracting officer is responsible for submitting sufficient and accurate documentation into FAPIIS within 3 working days.
5. How Will We Review the 14-Calendar-Day Non-Public FAPIIS Entry?
As required by section 3010 of the Supplemental Appropriations Act, 2010 (Pub. L. 111-212), data posted to FAPIIS on or after April 15, 2011, becomes publicly accessible, excluding past performance reviews required by subpart 42.15. However, FAPIIS operates two separate segments: a non-public segment and a publicly available segment. You must ask your GC or contracting officer how and when your firm will inspect the non-public entry.
The non-public segment can only be viewed by government personnel, authorized users performing government business, or the offeror viewing data on itself. All information placed in this non-public segment automatically transfers to the publicly available segment after a waiting period of 14 calendar days, unless it is withdrawn by the posting official or consists of past performance reviews or entries dated prior to April 15, 2011. You must use this 14-calendar-day window to examine exactly what narrative was logged.
6. Do We Need to Assert a FOIA Exemption Within 7 Calendar Days?
Government officials are legally prohibited from posting any data into the non-public segment of FAPIIS that is covered by an exemption under the Freedom of Information Act (FOIA). Ask the GC and your administrative team whether any proprietary financial records, operational details, or confidential commercial information appear in the officer's report.
If your firm asserts within 7 calendar days to the posting official that posted information is covered by a FOIA disclosure exemption, strict procedural deadlines apply under FAR 9.105-2(b)(2)(iv). The government official who posted the data must remove the posting from FAPIIS within 7 calendar days. The agency must then resolve the FOIA exemption issue under its established agency FOIA procedures before any releasable information can be reposted.
Sources
9.105-2 Determinations and documentation. | Acquisition.GOV
Published November 9, 2026. No affiliate links on this page. Facts come from the sources linked above; check them for updates.