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Are all Offerors "Prospective Contractors"?


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Guest jrt132

I think "Prospective Contractors" would need to be defined before one could decide if all offerors are covered. It appears said definition is not included in FAR Subpart 2.1 and/or Subpart 9.1.

Merriam-Webster provides the following definitions:

Prospective: likely to be or become something specified in the future

Contractor: a person who is hired to perform work or to provide goods at a certain price or within a certain time

So, a Prospective Contractor is likely to be hired to perform work or to provide goods at a certain price or within a certain time.

What is likely? If you don't meet the standards of Subpart 9.1 are you likely to be hired? I would say not all offeros are Prospective Contractors because not all offerors are likely to be hired.

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The dictionary says prospecive is "potential, likely or expected". The problem is with "potential". Any company could be potential.

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Don,

Yes, I can prove it by our common practice -- our practice is to select an offeror (one out of many in a competitive environment or just one in a sole source environment) as a prospective contractor and then to do a responsibility determination on that offeror who has become a prospective contractor.

For purposes of FAR Subpart 9.1, an offeror becomes a prospective contractor when we prospectively make a decision to select it for a contract award.

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No. Only the ones that are about to get federal contracts (subject to being found responsible).

Hey, see 9.104-1 then go to (g) for some support for your statement. Eligible to receive award would appear to me to refer to a selected offer or (or bidder).

"9.000 Scope of part.

This part prescribes policies, standards, and procedures pertaining to prospective contractors responsibility..."

"9.104-1 General standards.

To be determined responsible, a prospective contractor must

...(g) Be otherwise qualified and eligible to receive an award under applicable laws and regulations (see also inverted domestic corporation prohibition at 9.108)."

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I used to think like ji20874--prospective contractors are a subset of offerors--the offerors that you've selected for award and are undergoing a determination of responsibility. When I was challenged on it, I really couldn't find anything definitive in the FAR to back me up. There are 19 uses of "offeror" or "offerors" in FAR subpart 9.1. Sometimes it seems to be used to distinguish them from "prospective contractors", other times it seems synonymous with the term. If you look at other parts of the FAR, "offerors" could be interpreted as a subset of "prospective contractors"--the prospective contractors that submit offers. For example, FAR 15.203( c ) states:

Requests for proposals (RFPs) are used in negotiated acquisitions to communicate Government requirements to prospective contractors and to solicit proposals. RFPs for competitive acquisitions shall, at a minimum, describe the --

(1) Government’s requirement;

(2) Anticipated terms and conditions that will apply to the contract:

(3) Information required to be in the offeror’s proposal

Strange.

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Don, I thought your question limited the application of the term "prospective contractors" to how it is used in Subpart 9.1. The title of 9.1 is "Responsible Prospective Contractors" and the scope of the Subpart, as described in 9.100 is prescribing "policies, standards, and procedures for determining whether prospective contractors and subcontractors are responsible." Thus Subpart 9.1 only covers determining the responsibility of an offerior (or bidder*) that is being considered for award (plus some discussion concerning subcontractors), doesn't it? It doesn't discuss non-selected offerors (bidders), does it?

Prospective contractors, as the term is used in Part 15, isn't what you asked about. You only asked about offerors who are used in 9.1.

*Per FAR 2.101, an “Offeror” means offeror or bidder.

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Guest Vern Edwards

See the policy on definitions in FAR 2.101(a) and ( b ), at 1.108(a), and 52.202-1. There is no official definition of "prospective contractor" anywhere in Title 48 of the C.F.R.

FAR 2.101 defines "responsible prospective contractor" as "a contractor that meets the standards in FAR 9.104," which makes no sense at all, since a contractor is more than a "prospective" contractor.

The Nuclear Regulatory Commission defines "responsible prospective contractor" as "any person, firm, unincorporated association, joint venture, co-sponsor, partnership, corporation, or their affiliates or successors in interest, including their chief executives, directors, key personnel, proposed consultants, or subcontractors, submitting a bid or proposal, solicited or unsolicited, to the NRC to obtain a contract." See 48 CFR 2009.570-2. Rather broad, eh?

As for how "prospective contractor" is used in FAR Subpart 9.1, see 9.105-1( b )(1):

Generally, the contracting officer shall obtain information regarding the responsibility of prospective contractors, including requesting preaward surveys when necessary (see 9.106), promptly after a bid opening or receipt of offers. However, in negotiated contracting, especially when research and development is involved, the contracting officer may obtain this information before issuing the request for proposals. Requests for information shall ordinarily be limited to information concerning (i) the low bidder or (ii) those offerors in range for award.

That does not sound like "prospective contractor" is strictly limited to offerors that have been selected.

If there is no official definition, usage is likely to be all over the map. Even if there is an official definition, usage might be all over the map.

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As for how "prospective contractor" is used in FAR Subpart 9.1, see 9.105-1( b )(1):

That does not sound like "prospective contractor" it is strictly limited to offerors that have been selected.

If there is no official definition, usage is likely to be all over the map. Even if there is an official definition, usage might be all over the map.

Thanks, Vern. I read right over the possibility of looking at more than the selectee(s). I think that this would be very rarely done but 9.105 does address a broader group of offerors.
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joel,

Also, consider FAR 9.104-6. It discusses using FAPIIS as a source for determining responsibility, but does not use the term "prospective contractor" at all.

ji20874,

My conclusion is that I was wrong to think that the term "prospective contractor" necessarily meant the offeror or quoter who was selected for award and who is the subject of a responsibility determination. As such, I won't tell people that it always has that meaning.

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