Rule2024-08855
Nonprocurement Suspension and Debarment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 1, 2024
Effective
May 30, 2024
Issuing agencies
U.S. International Development Finance Corporation
Abstract
The U.S. International Development Finance Corporation (DFC) is issuing a final rule to implement its nonprocurement debarment and suspension regulations. With this regulatory action, DFC adopts Office of Management and Budget (OMB) regulations with some agency specific additions and clarifications. This final rule states what contracts are covered under this regulation, identifies the official authorized to grant exceptions to an excluded persons list, and states the person responsible for communicating requirements to both first and second tier program participants. Elements not addressed in this regulation are covered by the Governmentwide sections in the common rule.
Full Text
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<title>Federal Register, Volume 89 Issue 85 (Wednesday, May 1, 2024)</title>
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[Federal Register Volume 89, Number 85 (Wednesday, May 1, 2024)]
[Rules and Regulations]
[Pages 34953-34955]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08855]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 89, No. 85 / Wednesday, May 1, 2024 / Rules
and Regulations
[[Page 34953]]
INTERNATIONAL DEVELOPMENT FINANCE CORPORATION
2 CFR Chapter XVI
Nonprocurement Suspension and Debarment
AGENCY: U.S. International Development Finance Corporation.
ACTION: Final rule.
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SUMMARY: The U.S. International Development Finance Corporation (DFC)
is issuing a final rule to implement its nonprocurement debarment and
suspension regulations. With this regulatory action, DFC adopts Office
of Management and Budget (OMB) regulations with some agency specific
additions and clarifications. This final rule states what contracts are
covered under this regulation, identifies the official authorized to
grant exceptions to an excluded persons list, and states the person
responsible for communicating requirements to both first and second
tier program participants. Elements not addressed in this regulation
are covered by the Governmentwide sections in the common rule.
DATES: This rule is effective May 30, 2024.
FOR FURTHER INFORMATION CONTACT: Agency Submitting Officer: Deborah
Papadopoulos, (202) 357-3979, Email: <a href="/cdn-cgi/l/email-protection#6e080b0a1c0b092e0a080d40090118"><span class="__cf_email__" data-cfemail="e7818283958280a7838184c9808891">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
Executive Order 12549 (51 FR 6370, February 18, 1986) established a
Governmentwide debarment and suspension system covering the full range
of Federal procurement and nonprocurement activities, and established
procedures for debarment and suspension from participation in Federal
nonprocurement programs. Section 6 of the Executive order authorized
OMB to issue guidelines to Executive departments and agencies that
govern which programs and activities are covered by the Executive
order, prescribe Governmentwide criteria and Governmentwide minimum due
process procedures, and set forth other related details for the
effective administration of the guidelines. Section 3 directed agencies
to issue implementing regulations that are consistent with OMB
guidelines.
OMB issued an interim final guidance that implemented a common rule
for Governmentwide Debarment and Suspension (Nonprocurement). This
common rule is codified in part 180 of title 2 of the Code of Federal
Regulations (70 FR 51864, August 31, 2005). In addition to restating
and updating its guidance on nonprocurement debarment and suspension,
the interim final guidance requires all Federal agencies to adopt a new
approach to Federal agency implementation of the guidance. OMB requires
each agency to issue a brief rule that: (1) Adopts the guidance, giving
it regulatory effect for that agency's activities; and (2) states any
agency-specific additions, clarifications, and exceptions to the
Governmentwide policies and procedures contained in the guidance.
Under this system, a person who is debarred or suspended is
excluded from Federal financial and nonfinancial assistance and
benefits under Federal programs and activities. Debarment or suspension
of a participant in a program by one agency is registered with the
General Services Administration (GSA)-maintained System for Award
Management (SAM) exclusion list and has Governmentwide, reciprocal
effect on that participant's ability to obtain procurement and
nonprocurement contracts.
DFC published its proposed rule regarding nonprocurement suspension
and debarment on January 5, 2024 (89 FR 714). During the public comment
period, we received two comments, which are addressed in Sec. Sec.
1600.220 and 1600.890 (see the corrections published on January 22,
2024 (89 FR 3896), and March 8, 2024 (89 FR 16701)).
Regulatory Analysis
Executive Order 12866
DFC is an independent agency and is not subject to Executive Order
12866.
Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))
This regulatory action will not have a significant adverse impact
on a substantial number of small entities.
Unfunded Mandates Act of 1995
This regulatory action does not contain a Federal mandate that will
result in the expenditure by State, local, and Tribal governments, in
aggregate, or by the private sector of $100 million or more in any one
year.
Paperwork Reduction Act of 1995
This rule does not impose any additional reporting or recordkeeping
requirements under the Paperwork Reduction Act.
Federalism (Executive Order 13132)
This regulatory action does not have federalism implications, as
set forth in Executive Order 13132. It will not have substantial direct
effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.
List of Subjects in 2 CFR Part 1600
Administrative practice and procedure, Assistance programs,
Debarment and suspension, Reporting and recordkeeping requirements.
0
For the reasons set forth in the preamble, under the authority at 2 CFR
180.30, the United States International Development Finance Corporation
adds 2 CFR chapter XVI, consisting of parts 1600 through 1699, to read
as follows:
Chapter XVI--US International Development Finance Corporation
PART 1600--NONPROCUREMENT DEBARMENT AND SUSPENSION
PARTS 1601-1699 [RESERVED]
PART 1600--NONPROCUREMENT DEBARMENT AND SUSPENSION
Sec.
1600.10 What does this part do?
1600.20 Does this part apply to me?
1600.30 What regulations must I follow?
Subpart A--General
1600.137 Who in DFC may grant an exception to let an excluded person
participate in a covered transaction?
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Subpart B--Covered Transactions
1600.215 Which nonprocurement transactions are not covered
transactions?
1600.220 What contracts and subcontracts are covered transactions?
Subpart C--Responsibilities of Participants Regarding Transactions
1600.332 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Subpart D--Responsibilities of Federal Agency Officials Regarding
Transactions
1600.437 What method do I use to communicate to a participant the
requirements for participating in a covered transaction?
Subparts E-F [Reserved]
Subpart G--Suspension
1600.765 How may I request reconsideration of my DFC suspension?
Subpart H--Debarment
1600.890 How may I request reconsideration of my DFC debarment?
Subpart I--Definitions
1600.930 Debarring official.
1600.1010 Suspending official.
Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31
U.S.C. 6101 note); E.O. 12549, 51 FR 6370, 3 CFR, 1986 Comp., p.
189; E.O. 12689, 54 FR 34131, 3 CFR, 1989 Comp., p. 235.
Sec. 1600.10 What does this part do?
This part adopts the Office of Management and Budget (OMB) guidance
in subparts A through I of 2 CFR part 180, as supplemented by this
part, as the U.S. International Development Finance Corporation (DFC)
regulations for non-procurement debarment and suspension. It thereby
gives regulatory effect for DFC to the OMB guidance as supplemented by
this part. This part satisfies the requirements in section 3 of
Executive Order 12549, ``Debarment and Suspension'' (3 CFR, 1986 Comp.,
p. 189); Executive Order 12689, ``Debarment and Suspension'' (3 CFR,
1989 Comp., p. 235); and section 2455 of the Federal Acquisition
Streamlining Act of 1994, Public Law 103-355 (31 U.S.C. 6101 note).
Sec. 1600.20 Does this part apply to me?
This part and, through this part, pertinent portions of the OMB
guidance in subparts A through I of 2 CFR part 180 (see table at 2 CFR
180.100(b)) apply to you if you are a--
(a) Participant or principal in a ``covered transaction'' (see 2
CFR part 180, subpart B, and the definition of ``non-procurement
transaction'' at 2 CFR 180.970);
(b) Respondent in a DFC suspension or debarment action;
(c) DFC suspending or debarring official; and
(d) DFC investment, guarantee, insurance or grant official
authorized to enter into any type of non-procurement transaction that
is a covered transaction.
Sec. 1600.30 What regulations must I follow?
The DFC regulations that you must follow are the regulations
specified in each applicable section of the OMB guidance in subparts A
through I of 2 CFR part 180 as that section is supplemented by the
section in this part with the same section number or by additional
provisions with no corresponding section number. For any section of OMB
guidance in subparts A through I of 2 CFR part 180 that has no
corresponding section in this part, DFC regulations are those in the
OMB guidance.
Subpart A--General
Sec. 1600.137 Who in DFC may grant an exception to let an excluded
person participate in a covered transaction?
The Chief Executive Officer (CEO) of DFC or designee may grant an
exception permitting an excluded person to participate in a particular
covered transaction. If the CEO of DFC or designee grants an exception,
the exception must be in writing and state the reason(s) for deviating
from the Governmentwide policy in Executive Order 12549.
Subpart B--Covered Transactions
Sec. 1600.215 Which nonprocurement transactions are not covered
transactions?
In addition to the nonprocurement transactions which are not
covered transactions under 2 CFR 180.215, any nonprocurement
transaction entered into under a primary tier nonprocurement
transaction that does not require DFC explicit prior consent is not a
covered transaction under 2 CFR 180.215(g)(2).
Sec. 1600.220 What contracts and subcontracts are covered
transactions?
First-tier procurements (i.e., primary contracts) under a covered
nonprocurement transaction are covered transactions. Although the OMB
guidance at 2 CFR 180.220(c) allows a Federal agency to do so (see also
optional lower tier coverage in the figure in the appendix to 2 CFR
part 180), DFC does not extend coverage of nonprocurement suspension
and debarment requirements beyond first-tier procurement under a
covered nonprocurement transaction. Moreover, for purposes of
determining whether a procurement contract is included as a covered
transaction, the threshold in 2 CFR 180.220(b) is increased from
$25,000 to the ``simplified acquisition threshold'' as defined in 48
CFR 2.101.
Subpart C--Responsibilities of Participants Regarding Transactions
Sec. 1600.332 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
You, as a participant, must include a term or condition in lower-
tier transactions that are covered transactions, requiring lower-tier
participants to comply with the OMB guidance in 2 CFR part 180, subpart
C, as supplemented by this subpart.
Subpart D--Responsibilities of Federal Agency Officials Regarding
Transactions
Sec. 1600.437 What method do I use to communicate to a participant
the requirements for participating in a covered transaction?
To communicate to a participant the requirements described in 2 CFR
180.435, you must include provisions in the contractual documentation
of the transaction to ensure compliance with 2 CFR part 180, subpart C,
as supplemented by subpart C of this part. The provisions must also
require the participant to include similar terms or conditions of
compliance in lower-tier covered transactions.
Subparts E-F [Reserved]
Subpart G--Suspension
Sec. 1600.765 How may I request reconsideration of my DFC suspension?
(a) If the DFC suspending official issues a decision under 2 CFR
180.755 to continue your suspension after you present information in
opposition to that suspension under 2 CFR 180.720, you can ask the
suspending official to reconsider the decision for material errors of
fact or law that you believe will change the outcome of the matter.
(b) A request for review under this section must be in writing;
state the specific findings you believe to be in error; and include the
reasons or legal bases for your position.
(c) The suspending official must notify you of their decisions
under this section, in writing, using the notice procedures at 2 CFR
180.615 and 180.975.
Subpart H--Debarment
Sec. 1600.890 How may I request reconsideration of my DFC debarment?
(a) If the DFC debarring official issues a decision under 2 CFR
180.870 to debar
[[Page 34955]]
you after you present information in opposition to a proposed debarment
under 2 CFR 180.815, you can ask the debarring official to reconsider
the decision for material errors of fact or law that you believe will
change the outcome of the matter.
(b) A request for review under this section must be in writing;
state the specific findings you believe to be in error; and include the
reasons or legal bases for your position.
(c) DFC may debar a person or entity for refusing to engage in
efforts to remediate identified environmental, social, and human rights
harm stemming from their activities, including harm that may be
identified through a DFC Office of Accountability complaints process.
(d) The debarring official must notify you of their decisions under
this section, in writing, using the notice procedures at 2 CFR 180.615
and 180.975.
Subpart I--Definitions
Sec. 1600.930 Debarring official.
The debarring official for DFC is the Vice President & Chief
Administrative Officer, Office of Administration, or designee as
delegated in Agency policy.
Sec. 1600.1010 Suspending official.
The suspending official for DFC is the Vice President & Chief
Administrative Officer, Office of Administration, or designee as
delegated in Agency policy.
PARTS 1601-1699 [RESERVED]
Dated: April 10, 2024.
Lisa Wischkaemper,
Assistant General Counsel, Office of the General Counsel, U.S.
International Development Finance Corporation.
[FR Doc. 2024-08855 Filed 4-30-24; 8:45 am]
BILLING CODE 3210-02-P
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