Rule2024-31403
Federal Acquisition Regulation: Improving Consistency Between Procurement and Nonprocurement Procedures on Suspension and Debarment
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Published
January 3, 2025
Effective
January 17, 2025
Issuing agencies
Defense DepartmentGeneral Services AdministrationNational Aeronautics and Space Administration
Abstract
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to improve consistency between the procurement and nonprocurement procedures on suspension and debarment, based on the recommendations of the Interagency Suspension and Debarment Committee.
Full Text
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[Federal Register Volume 90, Number 2 (Friday, January 3, 2025)]
[Rules and Regulations]
[Pages 507-517]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-31403]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 3, 9, 22, 25, 26, 33, and 52
[FAC 2025-03; FAR Case 2019-015, Item I; Docket No. FAR-2019-0015;
Sequence No. 1]
RIN 9000-AN98
Federal Acquisition Regulation: Improving Consistency Between
Procurement and Nonprocurement Procedures on Suspension and Debarment
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the
Federal Acquisition Regulation (FAR) to improve consistency between the
procurement and nonprocurement procedures on suspension and debarment,
based on the recommendations of the Interagency Suspension and
Debarment Committee.
DATES: Effective January 17, 2025.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Zenaida Delgado, Procurement Analyst, at 202-969-7207 or by email
at <a href="/cdn-cgi/l/email-protection#a0dac5cec1c9c4c18ec4c5ccc7c1c4cfe0c7d3c18ec7cfd6"><span class="__cf_email__" data-cfemail="374d5259565e53561953525b505653587750445619505841">[email protected]</span></a>. For information pertaining to status or
publication schedules contact the Regulatory Secretariat Division at
202-501-4755 or <a href="/cdn-cgi/l/email-protection#d295819380b7b581b7b192b5a1b3fcb5bda4"><span class="__cf_email__" data-cfemail="a5e2f6e4f7c0c2f6c0c6e5c2d6c48bc2cad3">[email protected]</span></a>. Please cite FAC 2025-03, FAR Case
2019-015.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule at 89 FR 1043 on
January 9, 2024, to improve consistency between procurement and
nonprocurement procedures on suspension and debarment, based on the
recommendations of the Interagency Suspension and Debarment Committee
(ISDC). The procurement procedures on suspension and debarment are
covered in the FAR. The nonprocurement procedures on suspension and
debarment (i.e., Nonprocurement Common Rule (NCR)) are covered in 2 CFR
part 180 and agency implementing regulations. For further details
please see the proposed rule. Five respondents submitted comments on
the proposed rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule. A discussion of the comments and the
changes made to the rule as a result of those comments are provided as
follows:
A. Summary of significant changes: No changes to the FAR text have
been made from the proposed to final rule that have a significant
negative effect on contractors. Minor changes and clarifications have
been made to the final rule. These changes are outlined below:
1. Revised FAR 9.406-1(a) to provide clarification regarding which
mitigating and aggravating factors may apply to individuals.
2. Revised FAR 9.406-3(b)(1) and 9.407-3(b)(1) to clarify that if
the suspending and debarring official (SDO) extends the opportunity for
the contractor to submit material in opposition, then the SDO should
also give a deadline for submission of materials.
3. Revised FAR 9.406-3(c)(1)(i) to allow the notice of proposed
debarment, or the notice of suspension, to be sent by U.S. mail or
private delivery service to the last known street address, with
delivery notification service.
4. Revised FAR 9.406-3(c)(1)(ii) to allow the notice of proposed
debarment, or the notice of suspension, to be sent by email to the
point of contact email address in the contractor's registration in the
System for Award Management (SAM), if any, or to the last known email
address as confirmed by the agency.
5. Revised FAR 9.406-3(d)(1) to clarify that the official record
closes upon the expiration of the contractor's time to submit
information and argument in opposition, including any extensions.
B. Analysis of Public Comments
1. Outside the Scope of the Rule
Comment: A respondent recommended adding FAR language to address
applicability of the suspension and debarment rules to Other
Transaction Authority (OTA) Agreements and to grants.
Response: This comment is outside the scope of this rule. Neither
OTA Agreements nor grants are covered in the FAR.
Comment: A respondent recommended adding a definition of ``present
responsibility.''
Response: This issue was previously considered in a notice issued
by the Office of Management and Budget (OMB) regarding guidelines for
Nonprocurement Debarment and Suspension at 52 FR 20360 on May 29, 1987,
and it was concluded that the definition is unnecessary. The suggestion
has been referred to the ISDC for further consideration.
2. Immediate Exclusionary Effect of a Notice of Proposed Debarment
Under the FAR
Comment: A respondent stated that the term ``notice of proposed
debarment'' under the FAR is misleading because the debarment is not
``proposed''--it is ``imposed.'' Most of the respondents recommended
that the immediate exclusionary effect of proposed debarment be removed
from the FAR to align better with the NCR, and disagree with the
Government's rationale for retaining it in the FAR. These respondents
indicated that if the risk to the Government in a specific case
requires immediate exclusion to protect the Government's business
interests, an SDO can issue a notice of suspension under FAR 9.407.
Where immediate exclusion is not necessary and the Government would not
choose to suspend the contractor, the proposal for debarment should not
have an exclusionary effect. Immediate exclusion is particularly
unwarranted in cases where the proposed debarment is not based on a
conviction or civil judgment, and fact-finding proceedings are
necessary. These respondents indicated that there is no increased
business risk to the Government in the procurement context than in
nonprocurement transactions. The respondents stated that the Government
enters into procurement contracts for public purposes of equal
importance
[[Page 508]]
and comparative risk as some nonprocurement transactions. The
respondents also pointed out that the Appropriations Act language cited
in the proposed rule does not require an SDO to issue an exclusionary
notice as part of the assessment of whether suspension and debarment is
appropriate. The respondents stated that those statutes simply require
the official to have considered whether exclusion is necessary to
protect the Government, which can be done without an immediate
exclusion (e.g., with a pre-notice letter or proactive outreach by the
contractor).
Response: DoD, GSA, and NASA acknowledge the comments but continue
to think, after deliberation with the ISDC, that the policy reasons
articulated in the preamble to the proposed rule for giving different
effect to a proposed debarment when applied to a procurement contract
versus a grant remain valid. These policy reasons are based on
differences in the purpose of procurement contracts and grants, as well
as occasional differences in comparative risk between these
instruments. Equally important, neither the ISDC nor the Federal
Acquisition Regulatory Council think that the application of a proposed
debarment, long allowed by the FAR to protect the taxpayer from harm,
leads to inappropriate use or overuse of immediate exclusions. In
addition, the final FAR rule formally recognizes the use of pre-notice
letters for the suspending and debarring official to consider as an
alternative to an immediate exclusion. For these reasons, no changes
have been made regarding the immediate exclusionary effect of a notice
of proposed debarment.
3. Methods of Communication
Comment: A respondent expressed support for the amendments to FAR
9.406-3(b)(1) and 9.407-3(b)(1) to permit contractors and their
representatives to present matters in opposition remotely. However, the
respondent is concerned that permitting notices of proposed debarment,
suspension, and the SDO decisions to be sent by standard U.S. mail
(with no return receipt requested) or by email ``[t]o the last known
email address'' may be inadequate to give contractors notice and an
opportunity to respond. The respondent recommended aligning this
provision with the NCR to require that any notice sent by U.S. mail be
sent by certified mail or its equivalent to increase the likelihood
that the notice will actually be received. The respondent pointed out
that this recommendation is consistent with notions of due process and
fundamental fairness. It is also consistent with the purpose of the
proposed rule: to better align the FAR and NCR.
Response: DoD, GSA, and NASA recognize the need for broad agency
flexibility due to the variety of agency missions. FAR 9.406-3(c)(1)(i)
was revised to allow the written notice to be sent by U.S. mail or
private delivery service to the last known street address, with
delivery notification service. FAR 9.406-3(c)(1)(ii) was revised to
allow the written notice to be sent by email to the point of contact
email address in the contractor's SAM registration, if any, or to the
last known email address as confirmed by the agency. These changes
provide agencies additional tools beyond using U.S. certified mail with
return receipt requested, and they are consistent with the flexibility
provided by the NCR, see 2 CFR 180.975 and 180.615.
Comment: Regarding sending notices by email, a respondent
recommended clarifying how SDOs will determine the ``last known email
address'' for a contractor, its identified counsel, or agent for
service of process. The respondent further recommended defining the
contractor's ``last known email address'' as the point of contact email
address in the contractor's SAM registration. Additionally, the
respondent recommended requiring SDOs to take additional steps to
confirm the contractor's receipt of notices sent by email, such as
requiring a response to confirm receipt, requesting a ``read receipt''
on the email, or following up by telephone to confirm that the email
was received.
Response: The changes to FAR 9.406-3(c)(1)(i) and (ii) allow
agencies the flexibility to rely on a variety of verification services
and resources to confirm the last known street address or the last
known email address. Requiring specific delivery confirmation practices
is overly prescriptive.
Comment: A respondent recommended amending FAR 9.406-4 to add
``demonstration of non-receipt of notice'' as a reason for the SDO to
reduce the period or extent of debarment. Another respondent
recommended providing for immediate reinstatement of contractors
debarred without receiving notice of a proposed debarment. The SDO
could then reissue the notice of proposed debarment and provide the
contractor an opportunity to respond before determining whether to
continue the debarment for the remainder of the period of debarment. If
the SDO determines that debarment is warranted, the contractor would be
debarred only for the amount of time remaining in the original period
of debarment prior to reinstatement. If the SDO determines that
debarment was not warranted, all records of the prior exclusion should
be removed from <a href="http://SAM.gov">SAM.gov</a> and other applicable Government databases. And,
if the SDO determines that an administrative agreement is appropriate,
information in relevant Government databases should be amended to
reflect that the contractor was proposed for debarment and an
administrative agreement was executed but should not reflect that
debarment was ever imposed.
Response: The FAR and the NCR describe how agencies achieve proper
notice such that notice is considered to have been received by the
contractor. The language in the preamble to the proposed rule (89 FR
1045) regarding nonreceipt of notice was not intended to create
procedures for immediate reinstatement, but rather to provide an
example of a reason under FAR 9.406-4(c)(5) that a debarring official
may deem appropriate to reduce the period or extent of debarment. As
FAR 9.406-4(c)(5) is a catch-all provision, the suggestion to add
``demonstration of non-receipt of notice'' is not adopted.
Comment: A respondent commended the decision to require that
notices of proposed debarment be sent directly to the contractor, the
contractor's identified counsel for purposes of the administrative
proceedings, or the contractor's agent for service of process, rather
than permitting notices to be sent to partners, officers, directors,
owners, or joint venturers. The respondent also commended retaining the
requirement that notices be sent directly to specifically named
affiliates (and adding that such notices may be sent to the affiliate's
identified counsel for purposes of the administrative proceedings, or
the affiliate's agent for service of process). Requiring that notices
be sent directly to the party named in the notice promotes due process
by helping ensure that notices are actually received and that the
cognizant party has an opportunity to respond.
Response: DoD, GSA, and NASA acknowledge the respondent's support
for the rule.
4. Administrative Agreement
Comment: A respondent recommended that the final rule clarify that
``potential suspension proceeding'' and ``potential debarment
proceedings'' are those suspension or debarment proceedings initiated
by, at a minimum, a pre-notice letter or other formal action and
further clarify that an administrative agreement resulting from
[[Page 509]]
a contractor's proactive outreach, as opposed to resulting from a
``potential proceeding,'' need not be publicly posted to the Federal
Awardee Performance and Integrity Information System (FAPIIS).
Response: The statute (41 U.S.C. 2313) applies to any
administrative agreement, making no exceptions for how the agreement
came about. The applicable requirement mandates FAPIIS include
information regarding ``[e]ach Federal administrative agreement entered
into by the person and the Federal Government in the period to resolve
a suspension or debarment proceeding.'' 41 U.S.C. 2313(c)(4). An
administrative agreement restricting the Government's ability to seek
suspension or debarment necessarily resolves suspension and debarment
proceedings. Any such agreement forecloses the opportunity to pursue
those remedies on the facts of the existing administrative agreement.
5. Administrative Record
Comment: A respondent recommended including language in the final
rule that requires all agencies to (i) provide as part of the notice
initiating a proposed debarment or suspension, or with a pre-notice
letter, a copy of the relevant administrative record or other compiled
information, in the case of a pre-notice letter, and (ii) distribute,
upon receipt of a request from a contractor for the administrative
record or information supporting a pre-notice letter, a copy of the
administrative record or compiled information to the contractor within
five days of receipt of the written request. These recommended changes
promote a decision-making process that is ``as informal as is
practicable, consistent with principles of fundamental fairness,'' see
FAR 9.406-3(b), and serve to standardize practices across all Federal
SDO activities. The respondent recognized this recommendation falls
outside the stated objective of improving the ``consistency between the
procurement and nonprocurement procedures on suspension and
debarment.'' Nonetheless, the respondent encouraged consideration of
this change to promote consistent standards of fundamental fairness.
The respondent added that in an appropriate rulemaking, a similar
change could be made to the NCR to achieve alignment.
Response: DoD, GSA, and NASA acknowledge the suggestion and decline
to adopt it. This matter appropriately remains one of agency
discretion.
Comment: A respondent recommended adding a definition of
``Administrative Record'' (or ``Official Record'') to the FAR.
Response: The administrative record is the information the SDO has
at the time that official makes a decision regarding a suspension or
debarment proceeding. See FAR 9.406-3(d) and 9.407-3(d). In the context
provided by the FAR, a formal definition is not necessary.
Comment: Under the NCR, SDOs are required to include in the
administrative record for proposed debarments and suspensions ``[a]ny
further information and argument presented in support of, or opposition
to, the [action].'' See 2 CFR 180.750(a)(2) and 180.845(b)(2). The
respondent recommended that the FAR require a copy of all supplemental
materials not provided by the contractor be distributed to the
contractor within five days of the SDO's decision to include the
materials in the administrative record. This change promotes consistent
standards across agencies as well as fundamental fairness.
Response: DoD, GSA, and NASA acknowledge the suggestion and decline
to adopt it. Rather than representing what to include in the
administrative record for proposed debarments and suspensions, 2 CFR
180.750(a)(2) and 180.845(b)(2) represent what to include in the
administrative record after the SDO suspends or proposes the contractor
for debarment. The administrative record is typically given to a
contractor after a decision has been made; however, in the time between
notices agencies have the discretion to provide documents to the
contractor upon request. This flexibility is commensurate with FAR
9.406-3(b)(1).
Comment: A respondent expressed support for the FAR revision to
require that an SDO make a debarment decision within 45 days after the
``the official administrative record is closed.'' 89 FR 1049. Given the
significance of closing the ``official administrative record,'' the
respondent recommended also requiring that the contractor be notified
of the date when the official administrative record is to close. This
revision promotes transparency and orderly process in the debarment
proceedings, allows the contractor to add any additional information to
the record before its closure, and allows the contractor to assert
procedural rights relating to the timing of the debarment decision. The
recommended change would also ensure that the agency and the contractor
are on the same footing for purposes of measuring the time given for
the SDO's decision making. The respondent asserts that this change
would also promote consistent standards across agencies and is
consistent with notions of fundamental fairness.
Response: DOD, GSA, and NASA recognize the importance of
transparency in the Government's suspension and debarment procedures.
The Councils considered the respondent's suggestion and made edits at
FAR 9.406-3(d)(1) to clarify that the official record closes upon the
expiration of the contractor's time to submit information and argument
in opposition, including any extensions. If a contractor is unsure
whether the administrative record has been closed, they should ask the
SDO to clarify.
6. Mitigating and Aggravating Factors That Could Apply to an Individual
Person Proposed for Exclusion
Comment: A respondent stated that even with the proposed inclusion
of additional aggravating or mitigating factors from the NCR in the
FAR, under both the FAR and the NCR, the factors that an SDO considers
when evaluating whether exclusion is necessary apply most directly to
organizations, not people. The respondent stated that this gap is
significant given that the majority of suspension and debarment actions
appear to be brought against individuals, as opposed to organizations.
Moreover, unlike an organization, an individual proposed for exclusion
may not be able to afford counsel to represent him or her in a
suspension or debarment proceeding. As these factors are currently
drafted, and without the means to secure experienced counsel, an
individual may not even realize that the mitigating and aggravating
factors are a consideration that could apply in the situation of an
individual facing potential exclusion. Fundamental fairness,
transparency, informality, and due process counsel in favor of
developing factors that the average person can understand. The
respondent provided examples of potential factors that could apply to
an individual person proposed for exclusion. The respondent recognized
that this suggestion extends beyond mere alignment of the FAR with the
NCR but encouraged consideration of adding these additional factors to
promote fundamental fairness in the treatment of individuals proposed
for suspension or debarment.
Response: DOD, GSA, and NASA have considered the recommendation to
include mitigating and aggravating factors for individuals. As set
forth in FAR 9.406-1(a), such factors apply to a ``contractor.''
Pursuant to FAR 9.403, the definition of ``contractor''
[[Page 510]]
specifically includes both individuals and other legal entities. The
Councils recognize that clarifying the mitigating and aggravating
factors that are applicable to individuals may increase transparency.
Consequently, FAR 9.406-1(a) is modified to provide clarification
regarding which factors may apply to individuals. Other mitigating or
aggravating factors proposed by the respondent are more suitably
considered at the SDO's discretion under the catch-all factor at FAR
9.406-1(a)(17).
C. Other Changes
The term ``sanctions'' is replaced with ``remedies'' at FAR
9.402(b) for consistency with the FAR language in part 9. Language was
added at FAR 9.406-3(f)(1) and 9.407-3(e)(1) for parallel construction
with FAR 9.406-3(f)(2) and 9.407-3(e)(2), respectively. Minor edits
were made to the final rule to update text for current FAR drafting
conventions and to improve readability.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items) or for Commercial Services
This rule does not create new solicitation provisions or contract
clauses, nor does it change the applicability or burden of any existing
provisions or clauses included in solicitations and contracts valued at
or below the SAT, or for commercial products, including COTS items, or
for commercial services.
IV. Expected Impact of the Rule
This rule improves consistency between the procurement and
nonprocurement procedures on suspension and debarment. These changes in
the FAR bring the two systems into closer alignment, which will enhance
transparency and consistency within the Government's suspension and
debarment procedures. This will allow contractors a better
understanding of how the two systems' procedures relate to each other.
V. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 (as amended by E.O. 14094) and 13563
direct agencies to assess the costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public health and safety effects, distributive
impacts, and equity). E.O. 13563 emphasizes the importance of
quantifying both costs and benefits, of reducing costs, of harmonizing
rules, and of promoting flexibility. This is not a significant
regulatory action and, therefore, was not subject to review under
section 6(b) of E.O. 12866, Regulatory Planning and Review, dated
September 30, 1993.
VI. Congressional Review Act
Pursuant to the Congressional Review Act, DoD, GSA, and NASA will
send this rule to each House of the Congress and to the Comptroller
General of the United States. The Office of Information and Regulatory
Affairs (OIRA) in the Office of Management and Budget has determined
that this rule does not meet the definition in 5 U.S.C. 804(2).
VII. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601-612.
1. Statement of the need for, and the objectives of, the rule.
DoD, GSA, and NASA are amending the FAR to improve consistency
between the procurement and nonprocurement procedures on suspension
and debarment, based on recommendations of the Interagency
Suspension and Debarment Committee.
The objective of this rule is to change the FAR so that the two
systems of procurement and nonprocurement suspension and debarment
will be in closer alignment where appropriate, to enhance
transparency and consistency within the FAR system.
2. Statement of the significant issues raised by the public
comments in response to the initial regulatory flexibility analysis,
a statement of the assessment of the agency of such issues, and a
statement of any changes made to the rules as a result of such
comments.
There were no significant issues raised by the public comments
in response to the initial regulatory flexibility analysis.
3. Description of and an estimate of the number of small
entities to which the rule will apply.
The final rule applies to all entities that do business with the
Federal Government.
The exclusions section of SAM does not contain data on the size
of an excluded party as size is only specifically determined
contract by contract based on the North American Industry
Classification System (NAICS) code. When the entity is recorded in
SAM as an excluded party, the SDO identifies the entity as either
(1) an individual, (2) firm, (3) vessel, or (4) special entity
designation. Collection of unique identification numbers are on
``firms'' and optionally on ``special entity designations''.
Data was analyzed by obtaining the list of entities that were
excluded in fiscal years 2021, 2022, and 2023. Next, the entities on
that list were compared with unique identification numbers against
the SAM data to see if any were actively registered in those fiscal
years for all awards. Lastly, the entities that would be considered
small businesses were identified based on their primary NAICS code.
The following is a breakdown of those distinct entities, which
had an entity registration in active status and concurrent active
exclusion record per fiscal year (FY):
----------------------------------------------------------------------------------------------------------------
FY 2021 FY 2022 FY 2023 Median
Suspension and debarment- SAM -------------------------------------------------------------------------------
exclusions SB/total SB/total SB/total
exclusions exclusions exclusions SB percent
----------------------------------------------------------------------------------------------------------------
Small Business/Total Exclusions. 273/429........... 251/417........... 241/392...........
Small Business Percentage....... 64 percent........ 60 percent........ 61 percent........ 61 percent.
----------------------------------------------------------------------------------------------------------------
4. Description of projected reporting, recordkeeping, and other
compliance requirements of the rule.
The rule does not include any reporting or recordkeeping
requirements. The rule does not contain any information collection
requirements that require the approval of the Office of Management
and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35)
or other compliance requirements for small entities.
44 U.S.C. 3518 and 5 CFR 1320.4(a)(2) give an exception for the
collection of information during the conduct of an administrative
action, investigation, or audit involving an agency against specific
individuals or entities.
5. Description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes.
The FAR changes are not expected to have a significant economic
impact on a substantial number of small entities. The rule imposes
minor procedural changes in compliance requirements on contractors
and minor process procedures for the Government. However, this
alignment enhances transparency and consistency within the
Government's suspension and debarment procedures, reducing the
complexities in understanding of the two distinct processes and
procedural requirements for suspension and debarment Governmentwide.
It is anticipated that this rule will have a positive impact on
small businesses with increased transparency in the process. DoD,
GSA, and NASA were unable to identify any significant alternatives
[[Page 511]]
to accomplish the desired objective of the rule.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
the Small Business Administration.
VIII. Paperwork Reduction Act
This rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. 3501-3521).
List of Subjects in 48 CFR Parts 2, 3, 9, 22, 25, 26, 33, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA are amending 48 CFR parts 2, 3, 9,
22, 25, 26, 33, and 52 as set forth below:
0
1. The authority citation for 48 CFR parts 2, 3, 9, 22, 25, 26, 33, and
52 continues to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C.
20113.
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 2.101 by--
0
a. Revising the definition of ``Conviction'';
0
b. In the definition of ``Debarment'', removing ``a debarring'' and
``is excluded is ``debarred.'' '' and adding ``a suspending and
debarring'' and ``is ``debarred'' is excluded.'' in their places,
respectively;
0
c. Adding in alphabetical order the definition of ``Suspending and
debarring official''; and
0
d. In the definition of ``Suspension'', removing ``suspending
official'' and ``disqualified is ``suspended.'' '' and adding
``suspending and debarring official'' and `` ``suspended'' is
disqualified.'' in their places, respectively.
The revision and addition read as follows:
2.101 Definitions.
* * * * *
Conviction means a judgment or conviction of a criminal offense by
any court of competent jurisdiction, whether entered upon a verdict or
a plea, and includes a conviction entered upon a plea of nolo
contendere. For use in subpart 9.4, see the definition at 9.403. For
use in subpart 26.5, see the definition at 26.503.
* * * * *
Suspending and debarring official means--
(1) An agency head; or
(2) A designee authorized by the agency head to impose a suspension
and/or a debarment.
* * * * *
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
3.104-7 [Amended]
0
3. Amend section 3.104-7 by removing from paragraph (d)(3) ``suspending
or'' and adding ``suspending and'' in its place.
PART 9--CONTRACTOR QUALIFICATIONS
9.104-5 [Amended]
0
4. Amend section 9.104-5 by removing from paragraph (b)(3) ``suspending
or'' and adding ``suspending and'' in its place.
0
5. Amend section 9.104-6 by--
0
a. Revising paragraph (b)(4); and
0
b. Removing from paragraph (c) introductory text ``debarred or
suspended'' and adding ``debarred, suspended, or has agreed to a
voluntary exclusion'' in its place.
The revision reads as follows:
9.104-6 Federal Awardee Performance and Integrity Information System.
* * * * *
(b) * * *
(4) Since FAPIIS may contain information on any of the offeror's
previous contracts and information covering a 5-year period, some of
that information may not be relevant to a determination of present
responsibility, e.g., a prior administrative action such as debarment,
suspension, voluntary exclusion, or administrative agreement, that has
expired or otherwise been resolved, or information relating to
contracts for completely different products or services.
* * * * *
9.402 [Amended]
0
6. Amend section 9.402 by--
0
a. In paragraph (b):
0
i. Removing ``sanctions'' and adding ``remedies'' in its place; and
0
ii. Removing ``set forth''; and
0
b. Removing from paragraph (d) ``Interagency Committee on Debarment and
Suspension'' and ``Section 873'' and adding ``Interagency Suspension
and Debarment Committee'' and ``section 873'' in their places,
respectively.
0
7. Amend section 9.403 by--
0
a. Adding in alphabetical order the definition of ``Administrative
agreement'';
0
b. Revising the definition of ``Civil judgment'';
0
c. Adding in alphabetical order the definition of ``Conviction'';
0
d. Removing the definition of ``Debarring official'';
0
e. Adding a sentence to the end of the definition of ``Nonprocurement
Common Rule'';
0
f. Adding in alphabetical order the definition of ``Pre-notice
letter'';
0
g. Removing the definition of ``Suspending official''; and
0
h. Adding in alphabetical order the definition of ``Voluntary
exclusion''.
The additions and revision read as follows:
9.403 Definitions.
* * * * *
Administrative agreement means an agreement between an agency
suspending and debarring official and the contractor used to resolve a
suspension or debarment proceeding, or a potential suspension or
debarment proceeding.
* * * * *
Civil judgment means the disposition of a civil action by any court
of competent jurisdiction, whether by verdict, decision, settlement,
stipulation, other disposition that creates a civil liability for the
complained of wrongful acts, or a final determination of liability
under the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801-
3812).
* * * * *
Conviction means--
(1) A judgment or any other determination of guilt of a criminal
offense by any court of competent jurisdiction, whether entered upon a
verdict or plea, including a plea of nolo contendere; or
(2) Any other resolution that is the functional equivalent of a
judgment establishing a criminal offense by a court of competent
jurisdiction, including probation before judgment and deferred
prosecution. A disposition without the participation of the court is
the functional equivalent of a judgment only if it includes an
admission of guilt.
* * * * *
Nonprocurement Common Rule * * * See 2 CFR part 180 and agency
enacting regulations in 2 CFR subtitle B.
Pre-notice letter means a written correspondence issued to a
contractor in a suspension or debarment matter,
[[Page 512]]
which does not immediately result in an exclusion or ineligibility. The
letter is issued at the discretion of the suspending and debarring
official. The letter is not a mandatory step in the suspension or
debarment process.
* * * * *
Voluntary exclusion means a contractor's written agreement to be
excluded for a period under the terms of a settlement between the
contractor and the suspending and debarring official of one or more
agencies. A voluntary exclusion must have Governmentwide effect.
9.404 [Amended]
0
8. Amend section 9.404 by--
0
a. Removing from paragraph (b)(1) ``debarment, declared ineligible,''
and adding ``debarment, voluntarily excluded, declared ineligible,'' in
its place;
0
b. Removing from paragraph (c)(3) introductory text ``exclusion
accomplished by the Agency'' and adding ``exclusion, including each
voluntary exclusion, accomplished by the agency'' in its place; and
0
c. Removing from paragraph (c)(4) ``or proposed debarment taken by''
and adding ``proposed debarment, or voluntary exclusion taken or
entered into by'' in its place.
0
9. Amend section 9.405 by--
0
a. Revising paragraph (a); and
0
b. Removing from paragraph (d) ``or proposed for debarment are'' and
adding ``proposed for debarment, or voluntarily excluded, are'' in its
place.
The revision reads as follows:
9.405 Effect of listing.
(a) Contractors debarred, suspended, proposed for debarment, or
voluntarily excluded, are excluded from receiving contracts, and
agencies shall not solicit offers from, award contracts to, or consent
to subcontracts with these contractors, unless the agency head
determines that there is a compelling reason for such action (see
9.405-1(a)(2), 9.405-2, 9.406-1(d), 9.407-1(d), and 26.505(e)).
Contractors debarred, suspended, proposed for debarment, or voluntarily
excluded, are also excluded from conducting business with the
Government as agents or representatives of other contractors.
* * * * *
9.405-1 [Amended]
0
10. Amend section 9.405-1 by--
0
a. Removing from paragraph (a) heading ``or proposed for debarment''
and adding ``proposed for debarment, or voluntarily excluded'' in its
place;
0
b. Removing from paragraph (a)(1) ``or proposed debarment of'' and ``or
proposed for debarment unless'' and adding ``proposed debarment, or
voluntary exclusion, of'' and ``proposed for debarment, or voluntarily
excluded, unless'' in their places, respectively; and
0
c. Removing from paragraph (a)(2) introductory text ``or proposed for
debarment, unless'' and adding ``proposed for debarment, or voluntarily
excluded, unless'' in its place.
9.405-2 [Amended]
0
11. Amend section 9.405-2 by--
0
a. Removing from paragraph (a) ``or proposed for debarment is'' and
adding ``proposed for debarment, or voluntarily excluded, is'' in its
place;
0
b. Removing from paragraph (b) introductory text ``or proposed for
debarment, unless'', ``or proposed for debarment as'', ``Protecting the
Government's Interests'', and ``or Proposed for Debarment, to'' and
adding ``proposed for debarment, or voluntarily excluded, unless'',
``proposed for debarment, or voluntarily excluded, as'', ``Protecting
the Government's Interest'', and ``Proposed for Debarment, or
Voluntarily Excluded, to'' in their places, respectively; and
0
c. Removing from paragraph (b)(4) ``or proposed debarment'' and adding
``proposed debarment, or voluntary exclusion'' in its place.
0
12. Revise section 9.406-1 to read as follows:
9.406-1 General.
(a) It is the suspending and debarring official's responsibility to
determine whether debarment is in the Government's interest. The
suspending and debarring official may, in the public interest, debar a
contractor for any of the causes in 9.406-2, using the procedures in
9.406-3. The existence of a cause for debarment, however, does not
necessarily require that the contractor be debarred; the seriousness of
the contractor's acts or omissions and any remedial measures,
mitigating factors, or aggravating factors should be considered in
making any debarment decision. Before arriving at any debarment
decision, the suspending and debarring official should consider factors
such as the following (some of the factors below could apply to
individuals such as contractors that are individuals, and are so
marked):
(1) Whether the contractor had effective standards of conduct and
internal control systems in place at the time of the activity which
constitutes cause for debarment or had adopted such procedures prior to
any Government investigation of the activity cited as a cause for
debarment.
(2) Whether the contractor (including an individual) brought the
activity cited as a cause for debarment to the attention of the
appropriate Government agency in a timely manner.
(3) Whether the contractor has fully investigated the circumstances
surrounding the cause for debarment (or the individual cooperated with
the investigation) and, if so, made the result of the investigation
available to the suspending and debarring official.
(4) Whether the contractor (including an individual) cooperated
fully with Government agencies during the investigation and any court
or administrative action.
(5) Whether the contractor (including an individual) has paid or
has agreed to pay all criminal, civil, and administrative liability for
the improper activity, including any investigative or administrative
costs incurred by the Government, and has made or agreed to make full
restitution.
(6) Whether the contractor has taken appropriate disciplinary
action against the individuals responsible for the activity which
constitutes cause for debarment.
(7) Whether the contractor (including an individual) has
implemented or agreed to implement remedial measures, including any
identified by the Government.
(8)(i) Whether the contractor has instituted or agreed to institute
new or revised review and control procedures, ethics training, or other
relevant training programs.
(ii) For an individual, whether the individual has attended
relevant remediation training.
(9) Whether the contractor (including an individual) has had
adequate time to eliminate the circumstances that led to the cause for
debarment.
(10)(i) Whether the contractor's management recognizes, accepts,
and understands the seriousness of the misconduct giving rise to the
cause for debarment and has implemented programs to prevent recurrence.
(ii) For an individual, whether the individual recognizes, accepts,
and understands the seriousness of the misconduct giving rise to the
cause for debarment and has adopted practices to prevent recurrence.
(11) Whether the contractor (including an individual) has a pattern
or prior history of wrongdoing, the frequency of incidents and/or
duration of the wrongdoing, and the actual or potential harm or impact
that results, or may result, from the wrongdoing.
(12) Whether and to what extent the contractor (including an
individual) planned, initiated, or carried out the
[[Page 513]]
wrongdoing, and the kind of positions within the contractor's
organization held by the individual involved in the wrongdoing.
(13) Whether the wrongdoing was pervasive within the contractor's
organization.
(14) Whether the individual or the contractor's principals
tolerated the offense.
(15) Whether the contractor (including an individual) is or has
been excluded or disqualified by an agency of the Federal Government or
has not been allowed to participate in State or local contracts or
assistance agreements on a basis of conduct similar to one or more of
the causes for debarment specified in this subpart.
(16) Whether the contractor (including an individual) has entered
into an administrative agreement with a Federal agency or a similar
agreement with a State or local government that is not Governmentwide
but is based on conduct similar to one or more of the causes for
debarment specified in this subpart.
(17) Whether there are any other factors to consider for the
contractor (including an individual) appropriate to the circumstances
of a particular case.
(b) The existence or nonexistence of any aggravating or mitigating
factors or remedial measures such as set forth in paragraph (a) of this
section is not necessarily determinative of a contractor's present
responsibility. Accordingly, if a cause for debarment exists, the
contractor has the burden of demonstrating, to the satisfaction of the
suspending and debarring official, its present responsibility and that
debarment is not necessary.
(c) Debarment constitutes debarment of all divisions or other
organizational elements of the contractor, unless the debarment
decision is limited by its terms to specific divisions, organizational
elements, or commodities. The suspending and debarring official may
extend the debarment decision to include any affiliates of the
contractor if they are--
(1) Specifically named; and
(2) Given written notice of the proposed debarment and an
opportunity to respond (see 9.406-3(c)).
(d) A contractor's debarment, or proposed debarment, shall be
effective throughout the executive branch of the Government, unless the
agency head or a designee (except see 26.505(e)) states in writing the
compelling reasons justifying continued business dealings between that
agency and the contractor.
(e)(1) When the suspending and debarring official has authority to
debar contractors from both contracts pursuant to the Federal
Acquisition Regulation in this chapter and contracts for the purchase
of Federal personal property pursuant to the Federal Management
Regulation (FMR) in 41 CFR part 102-38, that official shall consider
simultaneously debarring the contractor from the award of acquisition
contracts and from the purchase of Federal personal property.
(2) When debarring a contractor from the award of acquisition
contracts and from the purchase of Federal personal property, the
debarment notice shall so indicate and the appropriate FAR and FMR
citations shall be included.
9.406-2 [Amended]
0
13. Amend section 9.406-2 by removing from the introductory text ``The
debarring'' and adding ``The suspending and debarring'' in its place.
0
14. Amend section 9.406-3 by--
0
a. Removing from paragraph (a) ``the debarring official'' and adding
``the suspending and debarring official'' in its place;
0
b. Revising the heading of paragraph (b), paragraphs (b)(1) and (c),
the heading of paragraph (d), and paragraph (d)(1);
0
c. Removing from paragraph (d)(2)(i) ``The debarring official'' and
adding ``The suspending and debarring official'' in its place;
0
d. Removing from paragraph (d)(2)(ii) ``The debarring official''
wherever it appears and adding ``The suspending and debarring
official'' in its place;
0
e. Removing from paragraph (d)(2)(iii) ``The debarring official's'' and
adding ``The suspending and debarring official's'' in its place;
0
f. Revising the heading of paragraph (e) and paragraph (e)(1)
introductory text;
0
g. Removing from paragraph (e)(1)(iv) ``9.406-1(c)'' and adding
``9.406-1(d)'' in its place;
h. Removing from paragraph (e)(2) ``the debarring official'' and
``by certified mail, return receipt requested'' and adding ``the
suspending and debarring official'' and ``using the procedures in
paragraphs (c)(1) and (2) of this section'' in their places,
respectively;
0
i. Revising paragraph (f); and
0
j. Adding paragraphs (g) and (h).
The revisions and additions read as follows:
9.406-3 Procedures.
* * * * *
(b) Decision-making process. (1) Agencies shall establish
procedures governing the debarment decision-making process that are as
informal as is practicable, consistent with principles of fundamental
fairness. These procedures shall afford the contractor (and any
specifically named affiliates) an opportunity to submit, in person, in
writing, or through a representative, information and argument in
opposition to the proposed debarment. If the suspending and debarring
official extends the opportunity for the contractor to submit material
in opposition, then the official should also give a deadline for
submission of materials. The suspending and debarring official may use
flexible procedures to allow a contractor to present matters in
opposition in person or remotely through appropriate technology; if so,
the suspending and debarring official should change the notice in
paragraph (c)(3)(iv) of this section to include those flexible
procedures.
* * * * *
(c) Notice of proposal to debar. A notice of proposed debarment
shall be issued by the suspending and debarring official to the
contractor and any specifically named affiliates.
(1) The written notice shall be sent--
(i) By U.S. mail or private delivery service to the last known
street address, with delivery notification service;
(ii) By email to the point of contact email address in the
contractor's SAM registration, if any, or to the last known email
address as confirmed by the agency; or
(iii) By certified mail to the last known street address with
return receipt requested.
(2) The notice shall be sent--
(i) To the contractor, the contractor's identified counsel for
purposes of the administrative proceedings, or the contractor's agent
for service of process; and
(ii) For each specifically named affiliate, to the affiliate
itself, the affiliate's identified counsel for purposes of the
administrative proceedings, or the affiliate's agent for service of
process.
(3) The notice shall state--
(i) That debarment is being considered;
(ii) The reasons for the proposed debarment in terms sufficient to
put the contractor on notice of the conduct or transaction(s) upon
which it is based;
(iii) The cause(s) relied upon under 9.406-2 for proposing
debarment;
(iv) That, within 30 days after receipt of the notice, the
contractor may submit, in person, in writing, or through a
representative, information and argument in opposition to the proposed
debarment, including any additional specific information that raises a
genuine dispute over the material facts;
[[Page 514]]
(v) The agency's procedures governing debarment decision making;
(vi) The effect of the issuance of the notice of proposed
debarment;
(vii) The potential effect of an actual debarment;
(viii) That in addition to any information and argument in
opposition to a proposed debarment, the contractor must identify--
(A) Specific facts that contradict the statements contained in the
notice of proposed debarment. Include any information about any of the
factors listed in 9.406-1(a). A general denial is insufficient to raise
a genuine dispute over facts material to the proposed debarment;
(B) All existing, proposed, or prior exclusions and all similar
actions taken by Federal, State, or local agencies, including
administrative agreements that affect only those agencies;
(C) All criminal and civil proceedings not included in the notice
of proposed debarment that grew out of facts relevant to the cause(s)
stated in the notice; and
(D) All of the contractor's affiliates; and
(ix) That if the contractor fails to disclose the information in
paragraph (c)(3)(viii) of this section, or provides false information,
the agency taking the action may seek further criminal, civil, or
administrative action against the contractor, as appropriate.
(d) Suspending and debarring official's decision. (1) In actions
based upon a conviction or civil judgment, or in which there is no
genuine dispute over material facts, the suspending and debarring
official shall make a decision on the basis of all the information in
the administrative record, including any submission made by the
contractor. If no suspension is in effect, the decision shall be made
within 45 days from the date that the official administrative record is
closed, unless the suspending and debarring official extends this
period for good cause. The official record closes upon the expiration
of the contractor's time to submit information and argument in
opposition, including any extensions (see paragraph (b)(1) of this
section).
* * * * *
(e) Notice of suspending and debarring official's decision. (1) If
the suspending and debarring official decides to impose debarment, the
contractor and any affiliates involved shall be given prompt notice
using the procedures in paragraphs (c)(1) and (2) of this section--
* * * * *
(f) Administrative agreements. (1) If the contractor enters into an
administrative agreement with the Government in order to resolve a
debarment or potential debarment proceeding, the suspending and
debarring official shall access the website (available at <a href="https://www.cpars.gov">https://www.cpars.gov</a>, then select FAPIIS), enter the requested information,
and upload documentation reflecting the administrative agreement.
(2) The suspending and debarring official is responsible for the
timely and accurate submission of documentation reflecting the
administrative agreement. The submission should be made within 3
working days.
(3) With regard to information that may be covered by a disclosure
exemption under the Freedom of Information Act, the suspending and
debarring official shall follow the procedures at 9.105-2(b)(2)(iv).
(g) Voluntary exclusions. (1) If the contractor enters into a
voluntary exclusion with the Government in order to resolve a debarment
or potential debarment matter, the suspending and debarring official
shall access the website (available at <a href="https://www.sam.gov">https://www.sam.gov</a>) and enter
the requested information into the exclusions section of SAM (see
9.404(c)(3)).
(2) The suspending and debarring official is responsible for the
timely and accurate submission of documentation reflecting the
voluntary exclusion. The submission should be made within 3 working
days.
(3) Regarding information that may be covered by a disclosure
exemption under the Freedom of Information Act, the suspending and
debarring official shall follow the procedures at 9.105-2(b)(2)(iv).
(h) Pre-notice letters. Prior to initiating a proposed debarment, a
pre-notice letter may be issued at the discretion of the agency
suspending and debarring official. A pre-notice letter is not required
to initiate debarment under this subpart. (See 9.403.)
9.406-4 [Amended]
0
15. Amend section 9.406-4 by--
0
a. Removing from paragraph (b) and paragraph (c) introductory text
``The debarring official'' and adding ``The suspending and debarring
official'' in their places; and
0
b. Removing from paragraph (c)(5) ``the debarring official'' and adding
``the suspending and debarring official'' in its place.
0
16. Amend section 9.407-1 by--
0
a. Removing from paragraph (a) ``suspending official'' and adding
``suspending and debarring official'' in its place;
0
b. Revising paragraph (b);
0
c. Removing from paragraph (c) introductory text ``suspending
official'' and adding ``suspending and debarring official'' in its
place;
0
d. Revising paragraph (e)(1); and
0
e. Removing from paragraph (e)(2) ``FAR and FPMR'' and adding ``FAR and
FMR'' in its place.
The revisions read as follows:
9.407-1 General.
* * * * *
(b)(1) Suspension is a serious action to be imposed on the basis of
adequate evidence, pending the completion of an investigation or legal
proceedings, when it has been determined that immediate action is
necessary to protect the Government's interest. In deciding whether
immediate action is necessary to protect the Government's interest, the
suspending and debarring official has wide discretion. The suspending
and debarring official may infer the necessity for immediate action to
protect the Government's interest either from the nature of the
circumstances giving rise to a cause for suspension or from potential
business relationships or involvement with a program of the Federal
Government. In assessing the adequacy of the evidence, agencies should
consider how much information is available, how credible it is given
the circumstances, whether or not important allegations are
corroborated, and what inferences can reasonably be drawn as a result.
This assessment should include an examination of basic documents such
as contracts, inspection reports, and correspondence. An indictment or
other official findings by Federal, State, or local bodies that
determine factual and/or legal matters, constitutes adequate evidence
for purposes of suspension actions.
(2) The existence of a cause for suspension does not necessarily
require that the contractor be suspended. The suspending and debarring
official should consider the seriousness of the contractor's acts or
omissions and may, but is not required to, consider remedial measures,
mitigating factors, or aggravating factors, such as those in 9.406-
1(a). A contractor has the burden of promptly presenting to the
suspending and debarring official evidence of remedial measures or
mitigating factors when it has reason to know that a cause for
suspension exists. The existence or nonexistence of any remedial
measures or aggravating or mitigating factors is not necessarily
determinative of a contractor's present responsibility.
* * * * *
[[Page 515]]
(e)(1) When the suspending and debarring official has authority to
suspend contractors from both contracts pursuant to the Federal
Acquisition Regulation in this chapter and contracts for the purchase
of Federal personal property pursuant to Federal Management Regulation
(FMR) in 41 CFR part 102-38, that official shall consider
simultaneously suspending the contractor from the award of acquisition
contracts and from the purchase of Federal personal property.
* * * * *
9.407-2 [Amended]
0
17. Amend section 9.407-2 by removing from paragraphs (a) introductory
text and (c) ``The suspending official'' and adding ``The suspending
and debarring official'' in their places.
0
18. Amend section 9.407-3 by--
0
a. Removing from paragraph (a) ``suspending official'' and adding
``suspending and debarring official'' in its place;
0
b. Revising the heading of paragraph (b) and paragraph (b)(1);
0
c. Removing from paragraph (b)(2) introductory text ``of Department of
Justice advice, that'' and adding ``of advice from the Department of
Justice, a U.S. Attorney's office, State attorney general's office, or
a State or local prosecutor's office, that'' in its place;
0
d. Removing from paragraph (c) introductory text ``by certified mail,
return receipt requested'' and adding ``using the procedures in 9.406-
3(c)(1) and (2)'' in its place;
0
e. Revising paragraph (c)(1);
0
f. Removing from the end of paragraph (c)(5) the word ``and'';
0
g. Revising paragraph (c)(6);
0
h. Adding paragraphs (c)(7) and (8);
0
i. Revising paragraph (d) heading and paragraph (d)(1);
0
j. Removing from paragraph (d)(2)(i) ``suspending official'' and adding
``suspending and debarring official'' in its place;
0
k. Removing from paragraph (d)(2)(ii) ``suspending official'' wherever
it appears and adding ``suspending and debarring official'' in its
place;
0
l. Removing from paragraph (d)(2)(iii) ``suspending official's'' and
adding ``suspending and debarring official's'' in its place;
0
m. Revising paragraphs (d)(3) and (4);
0
n. Adding a heading for paragraph (e);
0
o. Revising paragraphs (e)(1) and (2);
0
p. Removing from paragraph (e)(3) ``suspending official'' and adding
``suspending and debarring official'' in its place; and
0
q. Adding paragraphs (f) and (g).
The revisions and additions read as follows:
9.407-3 Procedures.
* * * * *
(b) Decision-making process. (1) Agencies shall establish
procedures governing the suspension decision-making process that are as
informal as is practicable, consistent with principles of fundamental
fairness. These procedures shall afford the contractor (and any
specifically named affiliates) an opportunity, following the imposition
of suspension, to submit, in person, in writing, or through a
representative, information and argument in opposition to the
suspension. If the suspending and debarring official extends the
opportunity for the contractor to submit material in opposition, then
the official should also give a deadline for submission of materials.
The suspending and debarring official may use the flexible procedures
in 9.406-3(b)(1); if so, the suspending and debarring official should
change the notice in paragraph (c)(5) of this section to include those
flexible procedures.
* * * * *
(c) * * *
(1) That they have been suspended and that the suspension is based
on an indictment or other adequate evidence that the contractor has
committed irregularities--
(i) Of a serious nature in business dealings with the Government;
or
(ii) Seriously reflecting on the propriety of further Government
dealings with the contractor--any such irregularities shall be
described in terms sufficient to place the contractor on notice without
disclosing the Government's evidence;
* * * * *
(6) That additional proceedings to determine disputed material
facts will be conducted unless--
(i) The action is based on an indictment; or
(ii) A determination is made, on the basis of advice by the
Department of Justice, a U.S. Attorney's office, State attorney
general's office, or a State or local prosecutor's office, that the
substantial interests of the Government in pending or contemplated
legal proceedings based on the same facts as the suspension would be
prejudiced;
(7) That, in addition to any information and argument in opposition
to a suspension, the contractor must identify--
(i) Specific facts that contradict the statements contained in the
notice of suspension. Include any information about any of the factors
listed in 9.406-1(a). A general denial is insufficient to raise a
genuine dispute over facts material to the suspension;
(ii) All existing, proposed, or prior exclusions and all similar
actions taken by Federal, State, or local agencies, including
administrative agreements that affect only those agencies;
(iii) All criminal and civil proceedings not included in the notice
of suspension that grew out of facts relevant to the cause(s) stated in
the notice; and
(iv) All of the contractor's affiliates; and
(8) That if the contractor fails to disclose the information in
paragraph (c)(7) of this section or provides false information, the
agency taking the action may seek further criminal, civil, or
administrative action against the contractor, as appropriate.
(d) Suspending and debarring official's decision. (1) The
suspending and debarring official's decision shall be based on all the
information in the administrative record, including any submission made
by the contractor, for actions--
(i) Based on an indictment;
(ii) In which the contractor's submission does not raise a genuine
dispute over material facts; or
(iii) In which additional proceedings to determine disputed
material facts have been denied on the basis of advice from the
Department of Justice, a U.S. Attorney's office, State attorney
general's office, or a State or local prosecutor's office.
* * * * *
(3) The suspending and debarring official may modify or terminate
the suspension or leave it in force (for example, see 9.406-4(c) for
the reasons for reducing the period or extent of debarment). However, a
decision to modify or terminate the suspension shall be without
prejudice to the subsequent imposition of--
(i) Suspension by any other agency; or
(ii) Debarment by any agency.
(4) Prompt written notice of the suspending and debarring
official's decision shall be sent to the contractor and any affiliates
involved, using the procedures in 9.406-3(c)(1) and (2).
(e) Administrative agreement. (1) If the contractor enters into an
administrative agreement with the Government in order to resolve a
suspension or potential suspension proceeding, the suspending and
debarring official shall access the website (available at <a href="https://www.cpars.gov">https://www.cpars.gov</a>, then select FAPIIS), enter the requested information,
and
[[Page 516]]
upload documentation reflecting the administrative agreement.
(2) The suspending and debarring official is responsible for the
timely and accurate submission of documentation reflecting the
administrative agreement. The submission should be made within 3
working days.
* * * * *
(f) Voluntary exclusion. (1) If the contractor enters into a
voluntary exclusion with the Government in order to resolve a
suspension or potential suspension proceeding, the suspending and
debarring official shall access the website (available at <a href="https://www.sam.gov">https://www.sam.gov</a>) and enter the requested information into the exclusions
section of SAM (see 9.404(c)(3)).
(2) The suspending and debarring official is responsible for the
timely and accurate submission of documentation reflecting the
voluntary exclusion. The submission should be made within 3 working
days.
(3) Regarding information that may be covered by a disclosure
exemption under the Freedom of Information Act, the suspending and
debarring official shall follow the procedures at 9.105-2(b)(2)(iv).
(g) Pre-notice letter. Prior to initiating a suspension, a pre-
notice letter may be issued at the discretion of the agency suspending
and debarring official. A pre-notice letter is not required to initiate
suspension under this subpart. (See 9.403.)
0
19. Amend section 9.407-4 by--
0
a. Removing from paragraph (a) ``of investigation'', ``suspending
official'', and ``this subsection'' and adding ``of an investigation'',
``suspending and debarring official'', and ``this section'' in their
places, respectively;
0
b. Removing from paragraph (b) ``Assistant Attorney General requests''
and adding ``office of a U.S. Assistant Attorney General, U.S.
Attorney, or other responsible prosecuting official requests'' in its
place; and
0
c. Revising paragraph (c).
The revision reads as follows:
9.407-4 Period of suspension.
* * * * *
(c) The suspending and debarring official shall notify the
Department of Justice or other responsible prosecuting official of the
proposed termination of the suspension, at least 30 days before the 12-
month period expires, to give that official an opportunity to request
an extension on the Government's behalf.
9.409 [Amended]
0
20. Amend section 9.409 by removing the text ``Protecting the
Government's Interests when Subcontracting with Contractors Debarred,
Suspended, or Proposed for Debarment, in'' and adding ``Protecting the
Government's Interest when Subcontracting with Contractors Debarred,
Suspended, Proposed for Debarment, or Voluntarily Excluded, in'' in its
place.
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
22.1504 [Amended]
0
21. Amend section 22.1504 by--
0
a. Removing from paragraph (b)(2) ``The suspending official'' and
adding ``The suspending and debarring official'' in its place; and
0
b. Removing from paragraph (b)(3) ``The debarring official'' and adding
``The suspending and debarring official'' in its place.
22.1704 [Amended]
0
22. Amend 22.1704 by removing from paragraph (c)(2)(i) introductory
text ``suspending or debarring'' and adding ``suspending and
debarring'' in its place.
0
23. Amend section 22.1802 by revising paragraph (e) to read as follows:
22.1802 Policy.
* * * * *
(e) DHS and the Social Security Administration (SSA) may terminate
a contractor's memorandum of understanding (MOU) and deny access to the
E-Verify system in accordance with the terms of the MOU. If DHS or SSA
terminates a contractor's MOU, the terminating agency must refer the
contractor to a suspending and debarring official for possible
suspension or debarment action. During the period between termination
of the MOU and a decision by the suspending and debarring official
whether to suspend or debar, the contractor is excused from its
obligations under paragraph (b) of the clause at 52.222-54. If the
contractor is suspended, debarred, or subject to a voluntary exclusion
as a result of the MOU termination, the contractor is not eligible to
participate in E-Verify during the period of its suspension, debarment,
or voluntary exclusion. If the contractor is not suspended, debarred,
or subject to a voluntary exclusion, then the contractor must reenroll
in E-Verify.
PART 25--FOREIGN ACQUISITION
25.206 [Amended]
0
24. Amend section 25.206 by removing from paragraph (c)(4) ``suspending
or debarring'' and ``Subpart 9.4'' and adding ``suspending and
debarring'' and ``subpart 9.4'' in their places, respectively.
25.607 [Amended]
0
25. Amend section 25.607 by removing from paragraph (c)(4) ``suspending
or debarring'' and adding ``suspending and debarring'' in its place.
25.702-3 [Amended]
0
26. Amend section 25.702-3 by--
0
a. Removing from paragraph (b) ``suspending official'' and ``Subpart''
and adding ``suspending and debarring official'' and ``subpart'' in
their places, respectively; and
0
b. Removing from paragraph (c) ``The debarring'' and ``Subpart'' and
adding ``The suspending and debarring'' and ``subpart'' in their
places, respectively.
25.703-2 [Amended]
0
27. Amend section 25.703-2 by--
0
a. Removing from paragraph (b)(1) ``commercial services, '' and adding
``commercial services,'' in its place;
0
b. Removing from paragraph (b)(2) ``suspending official'' and adding
``suspending and debarring official'' in its place; and
0
c. Removing from paragraph (b)(3) ``The debarring official'' and adding
``The suspending and debarring official'' in its place.
PART 26--OTHER SOCIOECONOMIC PROGRAMS
26.505 [Amended]
0
28. Amend section 26.505 by removing from paragraph (c) ``suspension
and debarment'' and adding ``suspending and debarring'' in its place.
PART 33--PROTESTS, DISPUTES, AND APPEALS
33.102 [Amended]
0
29. Amend section 33.102 by removing from paragraph (b)(3)(iii)
``debarment official'' and ``Subpart'' and adding ``suspending and
debarring official'' and ``subpart'' in their places, respectively.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
30. Amend section 52.209-6 by--
0
a. Revising the section heading and clause title and date;
0
b. Removing from paragraph (c) ``suspended, or proposed for debarment
by'' and adding ``suspended, proposed for debarment, or voluntarily
excluded, by'' in its place;
0
c. Removing from paragraph (d) introductory text ``or proposed for
[[Page 517]]
debarment'' and adding ``proposed for debarment, or voluntarily
excluded'' in its place; and
0
d. Removing from paragraph (d)(4) ``suspension, or proposed debarment''
and adding ``suspension, proposed debarment, or voluntary exclusion''
in its place.
The revisions read as follows:
52.209-6 Protecting the Government's Interest When Subcontracting
With Contractors Debarred, Suspended, Proposed for Debarment, or
Voluntarily Excluded.
* * * * *
Protecting the Government's Interest When Subcontracting With
Contractors Debarred, Suspended, Proposed for Debarment, or Voluntarily
Excluded (JAN 2025)
* * * * *
0
31. Amend section 52.212-5 by--
0
a. Revising paragraphs (b)(12), (32), and (40) and (e)(1)(xix); and
0
b. In Alternate II, revising the date of the alternate and paragraph
(e)(1)(ii)(R).
The revisions read as follows:
52.212-5 Contract Terms and Conditions Required To Implement Statutes
or Executive Orders--Commercial Products and Commercial Services.
* * * * *
(b) * * *
_ (12) 52.209-6, Protecting the Government's Interest When
Subcontracting With Contractors Debarred, Suspended, Proposed for
Debarment, or Voluntarily Excluded. (JAN 2025) (31 U.S.C. 6101 note).
* * * * *
_ (32) 52.222-19, Child Labor--Cooperation with Authorities and
Remedies (JAN 2025) (E.O. 13126).
* * * * *
_ (40) 52.222-54, Employment Eligibility Verification (JAN 2025)
(Executive Order 12989). (Not applicable to the acquisition of
commercially available off-the-shelf items or certain other types of
commercial products or commercial services as prescribed in FAR
22.1803.)
* * * * *
(e)(1) * * *
(xix) 52.222-54, Employment Eligibility Verification (JAN 2025)
(E.O. 12989).
* * * * *
Alternate II (JAN 2025) * * *
(e)(1) * * *
(ii) * * *
(R) 52.222-54, Employment Eligibility Verification (JAN 2025)
(Executive Order 12989).
* * * * *
0
32. Amend section 52.213-4 by revising paragraphs (b)(1)(iii) and
(b)(2)(ii) to read as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Products and Commercial Services).
* * * * *
(b) * * *
(1) * * *
(iii) 52.222-19, Child Labor--Cooperation with Authorities and
Remedies (JAN 2025) (E.O. 13126) (Applies to contracts for supplies
exceeding the micro-purchase threshold, as defined in FAR 2.101 on the
date of award of this contract).
* * * * *
(2) * * *
(ii) 52.209-6, Protecting the Government's Interest When
Subcontracting with Contractors Debarred, Suspended, Proposed for
Debarment, or Voluntarily Excluded (JAN 2025) (Applies to contracts
over the threshold specified in FAR 9.405-2(b) on the date of award of
this contract).
* * * * *
0
33. Amend section 52.222-19 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (d)(2) ``suspending official'' and
``Subpart'' and adding ``suspending and debarring official'' and
``subpart'' in their places, respectively; and
0
c. Removing from paragraph (d)(3) ``The debarring'' and ``Subpart'' and
adding ``The suspending and debarring'' and ``subpart'' in their
places, respectively.
The revision reads as follows:
52.222-19 Child Labor--Cooperation With Authorities and Remedies.
* * * * *
Child Labor--Cooperation With Authorities and Remedies (JAN 2025)
* * * * *
0
34. Amend section 52.222-54 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (b)(5)(i) ``suspension or debarment'' and
adding ``suspending and debarring'' in its place; and
0
c. Revising paragraph (b)(5)(ii).
The revisions read as follows:
52.222-54 Employment Eligibility Verification.
* * * * *
Employment Eligibility Verification (JAN 2025)
* * * * *
(b) * * *
(5) * * *
(ii) During the period between termination of the MOU and a
decision by the suspending and debarring official whether to suspend
or debar, the Contractor is excused from its obligations under
paragraph (b) of this clause. If the Contractor is not suspended,
debarred, or subject to a voluntary exclusion, then the Contractor
must reenroll in E-Verify.
* * * * *
[FR Doc. 2024-31403 Filed 1-2-25; 8:45 am]
BILLING CODE 6820-EP-P
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