If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)
Kevin and Paul discuss two hurdles a small business must leap in order to receive a government proposal. Submitting a winning proposal that complies with all solicitation requirements is the first. The government must also be confident that you can perform the work and/or deliver the goods. Listen and learn the difference between responsive and responsible and why both government and industry must take care to assess both.
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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help government and industry acquisition professionals understand more about how the other side thinks. As former government Contracting Officers who have also worked on the industry side, Kevin and Paul share their perspectives in support of the podcast’s mission: Make government contracts better, one contract at a time.
Paul Schauer 0:08
Welcome to The Contracting Officer Podcast. It’s not just for contracting officers. If you’re anywhere in the government acquisition world, this podcast is for you. Today, we’re talking about the difference between being responsive and being responsible. And this podcast is brought to you by Skyway acquisition. Visit Skywayacq.com to learn more. Okay, let’s get started. I feel like I start a lot of podcasts by saying, we talk a lot about context on the podcast. And we’re gonna do that again today. And one specific area where lack of context appears is the use of specific words in the far actually everywhere, not just in the FAR.
Kevin Jans 0:55
From examples that we’ve covered in podcasts over the years. In the unsolicited proposal episode, unsolicited proposal is not just a proposal that was not asked for, but it’s more than that, right? The word means more. That was in the episode 374. And then in 262, who explained that, that contract funds that are authorized, aren’t on contract until they’re obligated. And so those words mean, right. And then my favorite example was the Christian doctrine, which we covered in Episode 228 is not about theology is based on the name of the legal case. So these words mean a lot.
Paul Schauer 1:29
And in this episode, we’re going to talk about the difference between being labeled a non responsive contractor versus a non responsible contractor.
Kevin Jans 1:40
This is the case where lack of context on what those words mean can have stiff consequences, especially for the contractor.
Paul Schauer 1:49
Yeah, before we get into those consequences, let’s stop and say thanks.
Kevin Jans 1:55
Thanks. This week goes to Keith Wadley Keith is a proposal manager at Crewe training International. He’s in the meridian Mississippi area. I want to thank Keith for joining the Content Officer podcast group on LinkedIn and then telling us specifically how we found our podcast. I appreciate Keith taking the time to give us such detailed and direct input, when we know what we’re doing is actually helping than we know to do more of it. And we learned that by getting feedback from our listeners. So thank you, Keith, for letting us know how you found us and why you keep listening.
Paul Schauer 2:26
Thanks, Keith, we appreciate it. Back to the topic at hand. What’s the difference between responsive and responsible? Let’s start with the easy one. What is responsive?
Kevin Jans 2:39
In short, a responsive contractor is one that submitted a compliant proposal or bid or offer quote whatever. In other words, did you respond to the solicitation?
Paul Schauer 2:50
And by respond? We’re talking responding with the information requested by every element of the solicitation.
Kevin Jans 3:00
Compliantly respond to be more clear.
Paul Schauer 3:02
Right, that’s compliant. That’s what we’re talking here. If we’re going back to the old process to relationship ratio, we described it as the 8020 rule in earlier podcasts. Responsive is the process part of government acquisition as opposed to relationships between the parties. And that process part is always present in some form. Even in the case where your relationships with your customers have made it all but inevitable that the words are going to go to you even on a sole source basis. Maybe your proposal still must be responsive, or the government can’t award the contract to you. Alright, let’s move on to responsible I think we covered responsive. FAR Part Nine is a whole part of the far called contractor qualifications, about responsibility how does the government knows that a contractor will be able to perform on this contract, and it’s in far 9.103 Or it talks about policy
Kevin Jans 4:02
9.103a says it purchases shall be made from and contracts shall be awarded to responsible prospective contractors only. So in other words, a contracting officer you’re responsible for finding responsible that’s funny, you’re responsible for finding a responsible guy. And in paragraph B, that same section points out that in the absence of information clearly indicating that a prospective contractor is responsible, they love this, they come to the officer shall make the determination of non responsibility. In other words, we’re assuming you can’t do it until we have some evidence that shows you can.
Paul Schauer 4:39
That’s sort of like the guilty until proven innocent principle until you until you prove that you’re that you can do this. We’re gonna say that you can’t do it. We’re not just going to take your word for it. If you happen to be a small business, the contracting officer may need to request a certificate of competency in order To determine whether you’re responsible or not.
Kevin Jans 5:03
You and Shelley touched on one aspect of this in Episode 294, where is a certificate of competency is a piece is an example of this is evidence that the small business can actually do the work. Because if, for example, it’s an ad award to a company who’s never had a contract this size before, before I award that contract to them, I need some evidence, some of that evidence can be a certificate of competency that’s written by somebody else that says this, this contractor is responsible. And here’s the evidence, and then I use that as justification to award to them.
Paul Schauer 5:36
So to complete a certificate of competency, they need to do some research and have some data that allows them to make that determination. You also dropped eight a award in that. So it might be helpful to describe what eight a means.
Kevin Jans 5:51
Eight is a type of contract, or it’s a certification you get that allows the contracting officer to award sole source contracts to you, and we’ve multiple episodes about it. But in context of this, if I’m giving you a $2 million sole source award, I need some evidence that you’ve been responsible. And an example of how to get that evidence is a certificate of competency.
Paul Schauer 6:10
Ada is just one designation for small businesses, right. So there’s the first part of the Fargo conversation, Being responsible is more than just being able to be responsive, right? If you can’t write a compliant proposal, and therefore be responsive, it’s evidence that you may not be responsible, but it’s very common for Responsible contractors, contractors that can actually do the business to screw up their proposal and not get the award because they weren’t responsive to the solicitation. A responsible prospective contractor means a contractor that meets the standards of far 9.104.
Kevin Jans 6:51
There’s a list at 9.104 dash one, it says.
Paul Schauer 6:55
To be determined responsible or prospective contractor must a have adequate financial resources to perform the contract or the ability to obtain them be be able to meet the required or proposed delivery and performance schedule, taking into consideration all their other commercial and government business commitments. So you could be a perfectly Responsible Contractor have everything in place. But you may just have so much business that the government says wow, there’s no way they’ll be able to deliver in time, because they have a million other deliveries to make 9104 dash one C is have a satisfactory performance record, you as a contractor must have a satisfactory performance record that could come from C bars that could come from your past performance history that they request you to submit. That’s one of the reasons why they asked for these things why the government asked for these things. Next, is have a satisfactory record of integrity and business ethics.
Kevin Jans 7:52
And that one you can drive a truck through. Because what is satisfactory mean? And what does integrity mean? And and ethics can be a fuzzy term. And so if you and I did a podcast episode about what what is an independent monitor? And that’s what this is about, is how do we know that the contractor is behaving ethically, this one can be one of the more challenging ones to define. But this is where it says hey, contracting officer, if you see evidence that they’re not an ethical company, there’s evidence that they may not be responsible, which creates a snowball effect.
Paul Schauer 8:24
Yeah, the first part of this I think, is kind of binary like, Do you have any criminal convictions, as your as your company broken any laws is the is the owner or CEO in jail, right there, those things are at least easy to see. But sometimes ethical behavior is is not quite so cut and dried. Alright, moving on to the next perspective, contractor must have the necessary organization experience accounting and operational controls and technical skills, or the ability to obtain them. So you have to have the I’m not gonna say bureaucracy, but you have to have the business process, you have to have the business experience, you have to be able to actually run a business and be able to procure the parts, you need to be able to hire the people, you need to be able to follow all the rules that are required, not by the by the federal government, but by your state or local government in order to even have a business.
Kevin Jans 9:18
Yeah, this is technically just like, you’re not using bureaucracy. It’s more infrastructure. Yeah. Do you have quality control systems? Do you have the ability to hire people, etc, etc.
Paul Schauer 9:30
That would have been a lot easier way to say it than when the road I went down. But
Kevin Jans 9:33
The road you went, that was funny. So
Paul Schauer 9:37
What you just said, Kevin, it’s different for every type of contract, right? The necessary organization experience accounting and operational controls and technical skills for a simple delivery contract is quite different than the same, the necessary skills to build an aircraft carrier. Right. I don’t know why we always talk about that. That’s Like something super complex, I guess building an aircraft carrier?
Kevin Jans 10:03
Well, let’s let’s keep it simple that it can deliver a commercial item versus doing cybersecurity software development to different companies with two different levels of expectation. And that was, those are happening right now, we have customers at the moment.
Paul Schauer 10:19
Here, when you get to a certain size of contract, or when you become a certain size of company, more things are required of you, especially on the finance and accounting side. Next 9104 dash one F, you must have the necessary production construction and technical equipment and facilities or the ability to obtain them.
Kevin Jans 10:41
We’re gonna have to write that one in there.
Paul Schauer 10:44
Like I told the story way back, when about a guy when we were back at at Wright Patterson Air Force Base by an aircraft that had submitted a proposal that it seemed like he was going to convert his old chicken coops into the factory to build aircraft aircraft, he was sure that was going to happen, right? I don’t think he was deemed responsible. In that case.
Kevin Jans 11:05
I wonder if it was this paragraph, they use accordance with 9.104 dash one F, you are not responsible.
Paul Schauer 11:12
The last one, paragraph G says you must be otherwise qualified and eligible to receive an award under applicable laws and regulations. So that sounds like a catch all. But there are government contractor qualifications. Like when you register on the System for Award Management, there’s all kinds of checkboxes that you have to check that say you have an affirmative action plan and think things like that basic qualifications, must be met.
Kevin Jans 11:38
And that will can be very frustrating for the contractor. Because the contract officer looks at that and says, other regulations, I need to know all of them. That’s a huge bucket. And so as a result, I’m going to I potentially could look into a lot of corners of your company making sure that you’re covering all these nuances. Even though there’s a giant list of clauses inside the System for Award Management that you check on all those reps and certs, that’s what we’re talking about here, that all of these elements, you’ve covered them.
Paul Schauer 12:04
So to sum up, to be responsible, you have to financial resources, the business capabilities, some history of satisfactory performance, to give them confidence, you have to be ethical. And you have to show that you either have the facilities or the the equipment you need to do the work or you have a plan of how you’re going to obtain them.
Kevin Jans 12:27
And you have some infrastructure, just the right amount here,
Paul Schauer 12:29
Just the right amount, enough to do this job. It’s clear why the IRS, the determination of responsive is important, right? If you if you weren’t responsive to the solicitation, you don’t get the word. Being responsible is just as important. This is about whether a contractor can actually do the work, not just submit, not just be responsive and submit that compliant proposal.
Kevin Jans 12:56
So you have to have both a responsible contractor can actually do the work, a responsive contractor can submit a compliant proposal to do the work.
Paul Schauer 13:05
At being one doesn’t automatically equal the other. Let’s link this to the acquisition and execution time zones. When is the responsive and responsible determination important in the government acquisition process? It starts in the market research zone. If you are not a responsible contractor, if you’ve not been determined responsible, the government may not be willing to release a solicitation to you, they’re certainly not going to listen to your comments about how the work should be done, or allow you to shape the solicitation. If they don’t think you know what you’re talking about, or even have a chance of doing the work.
Kevin Jans 13:45
Or the Small Business Director might not even reach out to you for input or let you know that a potential RFP is dropping because they don’t think you can do it.
Paul Schauer 13:53
When you get to the RFP zone where you’re writing your proposal. You’re wasting your time writing a responsive proposal, if you’re going to be determined, not responsible, right, if the government isn’t confident that you can do the work, you can submit all of the proposals you want that check every box, but you’re still not going to win. If they don’t believe you can do it. Yeah. And that’s the selection zone. Right. The the contracting officer cannot award the far will not allow a contracting officer to award a contract to a contractor that’s been determined non responsible. Now, it doesn’t mean they won’t award a contract to a contractor that they think is responsible that then yeah, turns out to be not responsible later. But they at least have to meet we all have, they at least have to make a determination that they believe for these reasons that the contractor is responsible. There you go. On the execution time zone side after contract award. Your performance is the best evidence that you are responsible contractor if you’ve performed on a contract similar to this, if you perform well on your current con tract, that’s pretty good evidence that you will be able to perform on the next it’s not a guarantee. But it shows that at least you’re capable of doing this kind of work.
Kevin Jans 15:10
And likewise, if you’ve got a really bad C pars rating, for example, that shows you can’t do the work, it has the opposite effect, right? That’s a really easy way to make the argument that you’re not responsible when you didn’t perform on the last contract.
Paul Schauer 15:22
So when you get to the recompete zone, when the government is trying to figure out, should we buy this again, how should we buy this thing? Again, if we need it again, they might think last time we awarded this to small businesses, we selected one who couldn’t do the work. So it’s obvious that we should go to larger businesses this time. Sounds obvious, but they could say that, it’s obvious that we should go to larger businesses this time, that have more heft more, more more infrastructure, that’s your infrastructure, more infrastructure, because small businesses aren’t quite capable of this yet. That could be what happens if you don’t perform so the government’s thinking about responsibility when they’re in the recompete zone, and which is really the the market research zone for for the next acquisition.
Kevin Jans 16:08
If you’re not familiar with these zones, we’ve covered the acquisition time zones in episode number three, and the execution time zones and episode 372.
Paul Schauer 16:17
Alright, government folks, we’ve touched on this quite a few times, non responsive contractors are more obvious, right, it’s easy to go through, when you’re evaluating proposals and say, they didn’t submit all the documentation that was required. They didn’t follow the solicitation instructions, not responsive to the solicitation. So not going to continue the evaluation and not going to award that’s much easier than the responsibility to determination. In most cases, responsibility is fairly simple. Until it’s not, you’re confident that you’re, you’re your core of the core group of contractors that do the kind of work that you’re buying, they have a long history of doing it. But it can be possible that for reasons that aren’t obvious, you that are completely out of your control, maybe the contractor runs into a problem and they go bankrupt on you, and they don’t deliver, right, that’s not responsible, you may not be able to tell that prior to award, you may not see the indicators prior to award that this is going to happen. You may.
Kevin Jans 17:24
And the FAR give some examples of this. In fact, in FAR part nine contractor qualifications and 9.103 see down in the weeds here says the award of a contract to a supplier based on lowest evaluated price alone can be a false economy if if there are subsequent default late deliveries or other ones unsatisfactory performance. So in other words, this is evidence that this company’s price is 30% or 50. Picking number eight significant amount lower than everybody else. It’s not a guarantee that they’re not responsible. But it’s an evidence. And that’s what the four puts in here. It gives the contracting officer the language to say, this might be a false economy, that we’re getting a responsive contractor, but they can’t deliver at this price. So therefore, they may not be responsible.
Paul Schauer 18:12
Yeah, that’s that’s one of the things to look for. If if there is a contractor that is significantly lower in price than the rest, they may not understand how to do the job or understand what you’re asking for. So you were to them, and then takes a whole lot of time and money to fix it later. Or to cancel this contract, terminate this contract and award to someone else so you can get what you over again. Yeah. So this is sort of a caution to contractors that are attempting to win by being the lowest price all the time. So in some cases, lowest price is the only way to win. In other cases, often referred to as best value solicitations or trade off solicitations as the official term or trade offs. Exactly. Being more responsible giving the government more confidence that you will deliver what you say you will deliver on time may be worth more than being the absolute lowest price. Just submitting a proposal that has the lowest evaluated price doesn’t necessarily mean you will win on some solicitations that will unless you’re so low that they don’t think that you are responsible. I think we said that six different ways. Kevin, it’s a complex cube. on the industry side, be sure you understand the difference. non responsive means that you as a contractor didn’t submit a compliant proposal that’s just isolated on this acquisition. This one contract your non responsive, non responsible means that this contract shouldn’t be awarded to you and is usually interpreted to mean you shouldn’t win any other contracts like this.
Kevin Jans 19:55
Yeah, it’s a huge difference than when one is a rifle and the other one is a shotgun.
Paul Schauer 20:01
Yeah, this is one reason why the government asked for past performance, past performance references in their solicitations. When you submit three different examples of contracts similar to this contract, they’re considering awarding two contracts that you’ve performed successfully. That is great evidence that you are responsible contract. If you can’t come up with any examples where you’ve done this type of work or at this scale in the past, you may have other hurdles to leap for the government to be comfortable and consider you to be responsible, hence the huge difference. All right, Kevin, looping this back to the very beginning words matter definitions matter. Responsive is one thing responsible is a completely different thing.
Kevin Jans 20:48
If these words aren’t clear to you, in our part two is full of definitions. So ask for clarification, looking for part two and then ask the government to clarify and if you’re a Skyway customer ask us this is what we do. We were focused on bringing clarity to Gov con. And if you’re not a customer, go to Skywayacq.com And check us out.
Paul Schauer 21:09
And with that, Kevin, I’ll talk to you later. All right, I’ll see you Paul. All right. Thanks for joining us for another Contracting Officer podcast. If you’re looking for context, created playlists for our podcasts on our site to help you find what you’re looking for a little more easily. Visit Skywayacq.com/cop/, and you’ll find the playlists COP for contracting officer podcast. Alright, thanks again for listening. And we’ll see you next time.