Responsibility Determinations Under the Federal Acquisition Regulation: Legal Standards and Procedures

Kate M. Manuel
Legislative Attorney

This report discusses the standards and procedures that federal agencies use in making responsibility determinations under the Federal Acquisition Regulation (FAR). As a general rule, government agencies contract with the lowest qualified responsible bidder or offeror. Responsibility is an attribute of the contractor, while price and qualifications are attributes of the bid or offer. Under the FAR, "[n]o purchase or award shall be made unless the contracting officer makes an affirmative determination of responsibility." 

To be determined responsible, prospective contractors must meet general standards, which include so-called "collateral requirements." These standards apply to all procurement contracts, even if they are not incorporated into the solicitation. They include the following seven criteria related to contractors' capabilities and conduct: (1) adequate financial resources; (2) ability to comply with the delivery or performance schedule; (3) satisfactory performance record; (4) satisfactory record of integrity and business ethics; (5) necessary organization and experience; (6) necessary equipment and facilities; and (7) otherwise qualified and eligible. The seventh criterion encompasses collateral requirements, or other provisions of law specifying when contractors are disqualified from or ineligible for awards. Under current collateral requirements, contractors must be found nonresponsible when, among other things, they (1) do not comply with federal equal employment opportunity requirements; (2) fail to agree to an acceptable plan for subcontracting with small businesses; (3) are known government employees; (4) are quasi-military armed forces; or (5) have unavoidable and unmitigated organizational conflicts of interest. Unlike performance standards, which assess whether prospective contractors can be expected to complete the contract work in a timely and satisfactory manner, collateral requirements ensure that the government's dealings with contractors promote socioeconomic goals. 

In addition to the general standards, contractors may have to meet special standards, also known as "definitive criteria," which apply only to specific acquisitions. Special standards must be expressly included in agencies' solicitations. They are used when unusual expertise, special facilities, or specific experience or equipment are necessary to ensure that the government's needs are satisfied. 

Contracting officers determine prospective contractors' responsibility prior to each contract award by considering information submitted by the contractor or otherwise acquired by the agency. When they lack sufficient information to determine that the contractor is responsible, they must make a determination of nonresponsibility. Contractors are generally not entitled to due process when contracting officers make a responsibility determination, meaning that they typically do not get notice of nonresponsibility determinations or an opportunity to present evidence regarding their responsibility. Contracting officers have substantial discretion in making determinations. Protesters have standing to challenge contracting officers' determinations before the Government Accountability Office or federal courts only in limited circumstances. 

The standards and procedures used in making responsibility determinations have recently received increased attention from some Members of Congress and the general public, in part because of reports that certain federal contractors have engaged in allegedly irresponsible conduct negatively affecting the U.S. government or its citizens. The 111th Congress has enacted or proposed legislation that augments the responsibility standards, particularly the collateral requirements (e.g. P.L. 111-68, P.L. 111-117, P.L. 111-118, P.L. 111-212, H.R. 1555, H.R. 3221, H.R. 4444, H.R. 4983, H.R. 5136, H.R. 5726, S. 3323).


Date of Report: August 18, 2010
Number of Pages: 20
Order Number: R40633
Price: $29.95

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Election Year Restrictions on Mass Mailings by Members of Congress: How H.R. 2056 Would Change Current Law

Matthew Eric Glassman
Analyst on the Congress

Current law prohibits the franking of mass mailings by Senators fewer than 60 days, and by House Members fewer than 90 days, prior to any primary or general election in which the Member is a candidate. H.R. 2056 would amend Title 39, United States Code, by altering the prohibition for both Senators and House Members to the period starting 90 days prior to any primary and ending on the day of the general election, unless the Member has made a public announcement that the Member will not be a candidate for reelection to any federal office. 

The legislation would also prohibit the franking of mass mailings for the same period by any congressional committee or subcommittee of which the chair or ranking member is a candidate for reelection to any federal office. 

These changes would increase the mass-mailing-prohibited period for all Senators and some House Members. Table 1 and Table 2 of this report detail the hypothetical effects H.R. 2056 would have caused had it been enacted prior to the 2010 election season and the 2008 election season. For example, had the legislation been enacted prior to the 2010 election season, affected Members would have seen increased prohibited periods ranging from one day to 244 days, depending on the primary date in the Member's home state. 

This report provides an overview of the proposed changes and an analysis of the effect of the legislation on the mass-mailing-prohibited period for each state's Members, and other issues related to the proposed changes. 

H.R. 2056 has been referred to the Committees on House Administration, Energy and Commerce, Ways and Means, and Oversight and Government Reform. No further action has been taken.


Date of Report: August 20, 2010
Number of Pages: 15
Order Number: R40569
Price: $29.95

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The U.S. Postal Service’s Financial Condition: Overview and Issues for Congress

Kevin R. Kosar
Analyst in American National Government

This report provides an overview of the U.S. Postal Service's (USPS's) financial condition, recent legislation to alleviate the USPS's financial challenges, and possible issues for the 111th Congress. It also addresses current legislation that aims to improve the USPS's financial condition—H.R. 22, S. 1507, and H.R. 5746. 

Since 1971, the USPS has been a self-supporting government agency that covers its operating costs with revenues generated through the sales of postage and related products and services. 

Recently, the USPS has experienced significant financial challenges. After running modest profits from FY2004 through FY2006, the USPS lost $5.3 billion in FY2007 and $2.8 billion in FY2008. In May 2009, the USPS warned that it might experience a cash shortage at the end of September 2009. Two months later, the Government Accountability Office added the USPS's financial condition "to the list of high-risk areas needing attention by the Congress and the executive branch." 

On September 30, 2009, Congress enacted H.R. 2918, the Legislative Branch Appropriations Act [of] 2010. President Barack Obama signed the bill into law (P.L. 111-68) the next day. Section 164 of the law alleviated the USPS's cash shortage by reducing the USPS's statutorily required September 30, 2009, payment to the Postal Service Retiree Health Benefits Fund from $5.4 billion to $1.4 billion. (The USPS must repay the $4 billion deferred obligation after FY2016.) 

While Congress alleviated the USPS's FY2009 cash shortage, it is unclear what the future holds for the USPS's finances. Even with this assistance, the USPS had an FY2009 operating loss of $3.8 billion, and a $5.2 billion loss in the first three quarters of FY2010. The USPS has said it may not have sufficient cash to continue operations throughout FY2011. 

A number of ideas for incremental reforms have been put forth that would improve the USPS's financial condition in the short term so that it might continue as a self-funding government agency, all of which would require Congress to amend current postal law. The ideas include (1) increasing the USPS's revenues by altering postage rates and increasing its offering of nonpostal rates and services; and (2) reducing the USPS's expenses by a number of means, such as recalculating the USPS's retiree health care and pension obligations and payments, closing postal facilities, and reducing mail delivery from six to five days.


Date of Report: August 17, 2010
Number of Pages: 22
Order Number: R41024
Price: $29.95

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Congressional Franking Privilege: Background and Recent Legislation

Matthew Eric Glassman
Analyst on the Congress

The congressional franking privilege, which dates from 1775, allows Members of Congress to transmit mail matter under their signature without postage. Congress, through legislative branch appropriations, reimburses the U.S. Postal Service for the franked mail it handles. Use of the frank is regulated by federal law, House and Senate rules, and committee regulations. Reform efforts during the past 20 years have reduced overall franking expenditures in both election and non-election years. Even-numbered-year franking expenditures have been reduced by almost 70% from $113.4 million in FY1988 to $32.6 million in FY2008, while odd-numbered-year franking expenditures have been reduced by over 80% from $89.5 million in FY1989 to $16.8 million in FY2009. 

During the 111th Congress, two pieces of legislation have been introduced to alter the franking privilege for Members. H.R. 5151 would restrict Representatives' use of the frank to documents transmitted under the official letterhead used for the Member's stationary. H.R. 2056 would prohibit Senators and Representatives from sending mass mailings during a period starting 90 days prior to a primary and ending on the day of the general election for any election in which the Member is a candidate for reelection. 

During the 110th Congress, five pieces of legislation were introduced to alter the franking privilege for Members. H.R. 2788 would have required that all pieces of mail sent in a mass mailing include a statement indicating the cost of producing and mailing the mass mailing. H.R. 2687 would have prohibited mass mailings in the form of newsletters, questionnaires, or congratulatory notices. H.R. 1614, S. 936, and S. 1285 would have prohibited Senators and Representatives from sending mass mailings during a period starting 90 days prior to a primary and ending on the day of the general election for any election in which the Member is a candidate for reelection. 

This report will be updated as legislative action warrants. See also CRS Report R40569, Election Year Restrictions on Mass Mailings by Members of Congress: How H.R. 2056 Would Change Current Law, by Matthew Eric Glassman; CRS Report RL34188, Congressional Official Mail Costs, by Matthew Eric Glassman; and CRS Report RL34274, Franking Privilege: Historical Development and Options for Change, by Matthew Eric Glassman.


Date of Report: August 20, 2010
Number of Pages: 9
Order Number: RS22771
Price: $19.95

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Legislative Planning: Considerations for Congressional Staff

Judy Schneider
Specialist on the Congress

The Congressional Research Service frequently receives inquiries about legislative planning. Legislative and office action plans are often used by congressional offices for almost every significant project, from organizing an extensive conference in the district or state to introducing and guiding legislation. A major action plan requires a firm understanding of the project's goal, a research strategy, and a time line for completing the project. 

This report presents some of the factors usually considered in preparing an action plan. The information is provided in three sections. The first provides an overview which lays out summary considerations. The second raises questions to consider in preparing an outline for a project. The third details a sample action plan.


Date of Report: August 17, 2010
Number of Pages: 8
Order Number: RS20991
Price: $19.95

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