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    Background: Submitted a proposal and didn't recall before award am now realizing that it can't be fulfilled due to uncontrolable changes from initial submittal. Do these apply to this situation FAR 9.103(a) speaks to Purchases shall be made from, and contracts shall be awarded to, responsible prospective contractors only. FAR 9.103(b) further states, No purchase or award shall be made unless the contracting officer makes an affirmative determination of responsibility. In the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of non-responsibility.


    Answer

    A Contracting Officer (C.O.) is required by FAR 9.103 to make purchases from, and award contracts to, responsible prospective contractors only.  The Federal Acquisition Regulation (FAR) requires the C.O. to make a responsibility
    determination before awarding a contract.  They may do that by several means, such as checking the Excluded Parties List System (EPLS), reviewing the bid or proposal information, and/or checking past performance information from other government contracts.  The C.O. may also obtain pre-award surveys from other federal agencies and use that information to make a responsibility determination.  The C.O. is not required to conduct discussions or negotiate the award if they determine that discussions or negotiations are not necessary to understand the proposal or to make a fair and reasonable award.
     
    If the awardee later determines they cannot meet the terms of the contract, they need to communicate their concerns with the C.O.  While it may behoove the C.O. to consider the awardees request, the C.O. is not obliged to accommodate that request.  If the awardee does not perform within the terms of the contract, the C.O. has the right to terminate the contract for default (terminate for cause if the contract is awarded using commercial practices of FAR 12).  In general, once an offer has been made and the other party has accepted, a binding agreement is created - provided it is a legal agreement and consideration is included.
     
    If your concern is with the contractor's ability to perform after an event that may cause a delay, you'll need to investigate the list of excusable delays contained within the appropriate default clause for your specific application.  For example, FAR 52.249-8 Default (Fixed-Price Supply and Service) clause, paragraph (c), lists situations that would not be within the prime contractors responsibility, such as acts of God, floods, strikes, etc. If the contractor's inability to perform is based on one of the situations listed in the clause, the C.O. must consider the impact and determine if the contractor should be allowed additional time to perform.
     
    One caveat to consider is if the award is to be made under Simplified Acquisition Procedures (SAP).  Under SAP, a contractor would respond to a Request for Quotation (RFQ) with an "offer".  This offer is different than a proposal or a bid.  The government may decide to accept this offer, and would respond by issuing a Purchase Order (P.O.).  The contractor is not contractually obligated unless they either accept the P.O. by signing it, or if they deliver the ordered supplies or services.  Therefore, if your original question was referring to a P.O. issued by the government, the contractor could simply not deliver or they could inform the C.O. that their offer is no longer valid.  It is the C.O.'s responsibility to ensure the quotes are still valid before issuing a P.O. under SAP.

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