One sentence in the NISPOM disposes of this headline. “Requests for determinations of eligibility for access to classified information will not be used to establish a cache of cleared employees.” That is 32 CFR 117.10(a)(5), CFR edition revised as of July 1, 2025. You cannot sponsor a bench.

What you can build is narrower: a roster of already-cleared people held together by contingent offer letters and nothing stronger. The enforceable federal exposure runs not to the candidate you might disappoint but to the government, through what you wrote in the proposal.

Can you sponsor clearances for a contract you have not won?

Not a bench. But “no sponsorship until award” overstates the rule, and that error costs bids.

117.10(a)(1)(i) says the contractor “must determine that access to classified information is essential in the performance of tasks or services related to the fulfillment of a classified contract.” Read it against the definition. Under 32 CFR 117.3, the requirements for a classified contract “are applicable to all phases of precontract … activity, including solicitations (bids, quotations, and proposals).” 117.9(a)(10) adds that sponsorship may occur “at any point during the contracting … life cycle … (including the solicitation or competition phase).” If the solicitation itself is classified, pre-award access can be essential.

The bars that kill a bench sit elsewhere. Paragraph (a)(5) requires you to limit requests “to the minimum number of employees and consultants necessary for operational efficiency” before forbidding the cache outright. Paragraph (a)(7) adds that contractors “will not submit requests … for individuals who are not their employees or consultants; nor … for employees of subcontractors.” Your teammate’s people are not yours to submit. Note what (a)(7) does permit: a genuine consultant is not a contingent offer dressed up. See our guide to 32 CFR part 117.

Does the pre-employment route in 117.10(f) create a loophole?

It creates a start-date mechanism, not a stockpiling one.

The third paragraph gets dropped. The contractor “may submit a request for investigation prior to the date of employment, provided: (i) A written commitment for employment has been made by the contractor. (ii) The candidate has accepted the offer in writing. (2) The commitment … must indicate employment will commence within 45 days of the employee being granted eligibility … associated with the contract or USG requirement for which they were hired. (3) Contractors will comply with the requirements pursuant to paragraph (a)(5) of this section.”

The 45 days runs from the grant of eligibility at a level that allows the work, not from your offer letter, your award, or the day you submitted. That matters: under 117.10(l)(1) a temporary (interim) SECRET determination is valid only “at the level of the eligibility granted,” so an interim SECRET on a TS/SCI billet does not start this clock. And (f)(2) anchors to “the contract or USG requirement for which they were hired,” a requirement rather than necessarily an award in hand. Our note on time-to-billing follows that sequence.

One scope limit is easy to invert. Under 117.10(a)(8), access to “SCI, SAP, FRD, and RD information is a determination made by the granting authority … for each category of information.” That governs who decides access, not which process applies. Paragraph (f) is not category-limited: hire into an SCI or SAP billet and its written-commitment, written-acceptance and 45-day conditions still bind.

Does the FAR require a contingent offer letter?

It does not. We read FAR 15.305 in full at FAC 2026-01: nothing in it mandates contingent offers, letters of intent, or availability certifications.

Its only reference to the offeror’s own personnel, 15.305(a)(2)(iii), concerns past performance rather than availability. The section opens by requiring an agency to “assess their relative qualities solely on the factors and subfactors specified in the solicitation.” That is where this convention lives: Section L instructions, Section M factors, varying by procurement. Ask which section requires the letter; there is not one.

Where does the real exposure sit?

With the government, not the candidate. Naming a person you had no reasonable basis to expect to provide can be a material misrepresentation, and GAO’s remedy has reached termination plus exclusion from the competition. Three parts: the offeror “either knowingly or negligently” made the representation, the agency relied on it, and that reliance “had a material effect on the evaluation results.”

In ASRC Federal Data Solutions, LLC, B-421008 et al., decided December 2, 2022, the quotation “stated the awardee had contingent offers for key personnel,” but the identified individual stated that “they were exclusively committed to another firm, did not consent to the use of their name or qualifications … and did not accept a contingent offer of employment.” GAO recommended terminating the blanket purchase agreement and excluding the awardee. That link is an archived copy; gao.gov refuses automated requests.

Be precise: the case was an HHS request for quotations for IT services, resulting in a blanket purchase agreement. Not a cleared defense contract, not a FAR part 15 source selection, and GAO has issued no ruling specific to contingent offers for clearance holders. Note also what GAO declines to police: whether proposed personnel “will, in fact, perform … is generally a matter of contract administration that our Office does not review.” In ASRC, the key person who had consented and accepted became “a private dispute,” not a protestable misrepresentation.

The useful sentence comes from an earlier decision, Patricio Enterprises, quoted in ASRC: “An offeror may not represent the commitment of incumbent employees based only on a hope or belief that the offeror will ultimately be able to make good on its representation.” That is the line between a real contingent offer and a name on a slide.

Exclusion is not automatic, but do not price it as a long shot. Where a material misrepresentation has a material effect on a competition, GAO says, “the integrity of the procurement system ‘demands no less’ than the remedy of exclusion.” The exceptions follow: “There are other circumstances, however, where we have not recommended exclusion … we typically consider such factors as the degree of negligence or intentionality … as well as the significance of the misrepresentation to the evaluation.” A good-faith intent to hire is not itself a defense, so get written consent, keep it, re-confirm before submission, and verify the clearance itself.

Can you still plan around the incumbent right of first refusal?

No. It was revoked, and a capture plan describing it in the present tense is describing an obligation that no longer exists.

Executive Order 14055 of November 18, 2021 (86 FR 66397) was revoked by Executive Order 14148 on January 20, 2025 (90 FR 8237). The Department of Labor then rescinded 29 CFR part 9 outright, effective December 22, 2025. Both FAR Subpart 22.12 and clause 52.222-17 now read [Reserved] at FAC 2026-01.

Two scope limits, because this gets over-applied fast. What went is the right of first refusal for incumbent employees on federal service contracts. The Service Contract Act was not repealed; wage determinations and fringe obligations are a separate regime, untouched. And do not hunt for the clause in awarded contracts: because the FAR Council “never promulgated regulations to implement” EO 14055, DOL says its own rule “effectively never became applicable,” and it is “unaware of any solicitations that incorporated” it.

How do you actually reach the incumbent workforce?

Mostly by recruiting, which is lawful and ordinary. GAO said so in ASRC: “it is neither unusual nor inherently improper for an awardee to recruit and hire personnel previously employed by an incumbent contractor.” One clause adds a compulsory channel. FAR 52.237-3, Continuity of Services, obliges the outgoing contractor to disclose personnel records and let the successor interview its people on site.

Paragraph (c) of the clause: “The Contractor … shall disclose necessary personnel records and allow the successor to conduct on-site interviews with these employees.”

It binds the outgoing contractor whose contract contains it, not the successor, and confers nothing on the employee. You are not a party to it: non-cooperation is a matter for the contracting officer, not a right you can assert. It is not a replacement for the revoked EO 14055. What it does not reach is the employee’s own decision: “If selected employees are agreeable to the change” sits inside the clause.

FAR 37.110(c) says the contracting officer “may insert” this clause, in deliberate contrast to the “shall insert” of 37.110(a) and (b). It is discretionary, so check the actual contract rather than assuming the incumbent on your recompete is bound. The FAR lists “services requiring personnel with special security clearances” among its examples of where the clause may fit. Cleared recompetes often carry it by our reading, though no published figure exists.

Does a contingent offer letter bind anybody?

That is a state law question and the answer changes by state. No general federal rule governs the private offer letter you send a cleared candidate. What follows is background, not legal advice: on your own offer letters, ask your own employment counsel.

California shows how sharp state law can get, and it is not somebody else’s statute just because cleared work sits in Virginia, Maryland and DC. California Labor Code section 970 reaches three directions of movement; the third finds our readers: influencing a person to change “from any place within the State to any place outside” for work, by “knowingly false representations” about a closed list of four subjects: the kind, character or existence of the work; its duration or compensation; housing conditions; and any pending labor dispute. A Chantilly employer recruiting a California engineer east is inside it. Section 971 makes violation a misdemeanor, but the teeth are civil. Under section 972 a violator “is liable to the party aggrieved, in a civil action, for double damages,” brought “without first establishing any criminal liability.”

Note what 970 needs. Relocation is an element, so a local contingent offer sits outside it, and the representation must be knowingly false: a good-faith offer that fails because you did not win is not that. But do not read “not a crime” as “no exposure.” A California appellate court applied promissory estoppel against an employer that withdrew after the hire had resigned and relocated: an employer “cannot expect a new employee to sever his former employment and move across the country only to be terminated before the ink dries on his new lease” (Sheppard v. Morgan Keegan & Co., Cal. Ct. App., Feb. 22, 1990). We cannot survey fifty states. Before rescinding an offer to someone who has already quit or moved, take it to counsel. The other side of this transaction is our piece on what a contingent offer on a cleared req means.

What does carrying a pre-award bench actually cost?

Nobody has published a defensible number. We looked: there is no statistically sourced figure for carrying a cleared candidate through an unawarded procurement, and no benchmark for what share are still available at award. Recruiting vendors publish attrition percentages; they are not surveys and we will not repeat them as though they were. Build your planning input from your own proposal-to-award intervals. Our breakdown of what a cleared hire really costs covers the components that are documented. Nor does a waiting bench decay on its own: nothing in 117.10 says so, and under 117.10(h)(1) a current determination of sufficient scope “will provide the basis for a new eligibility determination” absent significant derogatory information.

One honest word on sourcing, since we run a cleared job board: here a posting is usually the wrong instrument. People worth a contingent offer on a named-key-personnel proposal are typically incumbents you identified by name from award data, reached through a recruiter or a referral. A board earns its place on the volume behind the named slots, on surge and backfill, and on roles nobody could name in advance. Our guide to where to post cleared jobs covers that split.

Frequently Asked Questions

Can we submit a clearance request for a candidate offered a job contingent on winning?

Not on the strength of the bid alone. 117.10(f) requires a written commitment and written acceptance, and (f)(2) ties it to “the contract or USG requirement for which they were hired,” with (f)(3) applying the no-cache rule to the whole route. A named person who must hold access to do identified work can qualify; a roster held against a hoped-for win is the cache the rule forbids.

Does the 45-day clock start when we send the offer letter?

No. It runs from the grant of eligibility at a level that allows the work, and an interim at the wrong level is not that grant.

What if a named key person takes another job before award?

GAO’s analysis turns on what you knew at submission, not the outcome. Documented consent that went stale is a different record from a name used without permission. Notify the contracting officer rather than staying silent.

Can we sponsor our subcontractor’s people so the team is cleared at award?

No. 117.10(a)(7) is explicit that contractors “will not submit requests … for individuals who are not their employees or consultants; nor … for employees of subcontractors.” Each company sponsors its own. On an SCI or SAP billet, (a)(8) puts the access decision with the granting authority, but the (f) conditions still bind your investigation request.

Before the next proposal goes out, pull the signed consent for every named key person and re-confirm anyone whose letter predates this submission. That file is the record GAO reads when a competitor asks how you came to promise someone you did not have. Recruiting the incumbent’s people needs no clause and never did. What 52.237-3 adds, where a contracting officer put it in the contract, is an incumbent obliged to cooperate at transition: a supplement to ordinary sourcing, not permission for it.