Publications

"Responsibility of Prospective Contractors," Briefing Papers 97-9

August 1997

Author: David Z. Bodenheimer.

One of the most fundamental requirements of Government contracting is that the U.S. Government may only contract with "responsible sources." To be a responsible source, a contractor must have both the ability and the will to perform the contract to be awarded. In the maze of requirements surrounding the award of Government contracts, the requirement of contractor responsibility is virtually unique because it applies regardless of the size of the contract, the agency making the award, or the method of acquisition. Because the requirements governing responsibility cut across procurements of every size and type, agencies and contractors must be alert to issues of responsibility with each solicitation and award.

The determination of contractor responsibility rests on a business judgment made by the agency as to whether the contractor can or will perform. As a result, the agency enjoys considerable discretion in making this decision. Nonetheless, this discretion is not unfettered and the agency's determination of responsibility must generally be reasonable, factually supportable, and in accordance with the governing statutes and regulations.

Since the seminal Briefing Paper on the responsibility of prospective contractors was published 25 years ago, the law on responsibility has steadily evolved as the cases and regulations have clarified and honed the requirements. Two of the more common problems in this area have been (1) the confusion of responsibility determinations with other determinations that the agency must make regarding the acceptability of bids or offers, and (2) the nature and sources of evidence that bear on the responsibility determination. This Briefing Paper will examine the definition and elements of responsibility, as well as the evidence for, and review of, agency responsibility determinations.

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David Z. Bodenheimer
Partner – Washington, D.C.
Phone: +1 202.624.2713
Email: dbodenheimer@crowell.com