[Title 2 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2025 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 2
Federal Financial Assistance
Revised as of January 1, 2025
Containing a codification of documents of general
applicability and future effect
As of January 1, 2025
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
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Table of Contents
Page
Explanation................................................. vii
Title 2:
SUBTITLE A--Office of Management and Budget Guidance
for Federal Financial Assistance 3
Chapter I--Office of Management and Budget
Government-wide Guidance for Federal Financial
Assistance 7
Chapter II--Office of Management and Budget Guidance 83
SUBTITLE B--Federal Agency Regulations for Grants and
Agreements
Chapter III--Department of Health and Human Services 239
Chapter IV--Department of Agriculture 251
Chapter VI--Department of State 283
Chapter VII--Agency for International Development 289
Chapter VIII--Department of Veterans Affairs 307
Chapter IX--Department of Energy 315
Chapter X--Department of Treasury 365
Chapter XI--Department of Defense 369
Chapter XII--Department of Transportation 493
Chapter XIII--Department of Commerce 499
Chapter XIV--Department of the Interior 507
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Chapter XV--Environmental Protection Agency 533
Chapter XVI--US International Development Finance
Corporation 553
Chapter XVIII--National Aeronautics and Space
Administration 559
Chapter XIX--U.S. Agency for Global Media 567
Chapter XX--United States Nuclear Regulatory
Commission 571
Chapter XXII--Corporation for National and Community
Service 575
Chapter XXIII--Social Security Administration 581
Chapter XXIV--Department of Housing and Urban
Development 587
Chapter XXV--National Science Foundation 599
Chapter XXVI--National Archives and Records
Administration 603
Chapter XXVII--Small Business Administration 607
Chapter XXVIII--Department of Justice 615
Chapter XXIX--Department of Labor 621
Chapter XXX--Department of Homeland Security 631
Chapter XXXI--Institute of Museum and Library
Services 639
Chapter XXXII--National Endowment for the Arts 649
Chapter XXXIII--National Endowment for the
Humanities 655
Chapter XXXIV--Department of Education 661
Chapter XXXV--Export-Import Bank of the United
States 675
Chapter XXXVI--Office of National Drug Control
Policy, Executive Office of the President 679
Chapter XXXVII--Peace Corps 683
Chapter LVIII--Election Assistance Commission 687
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Chapter LIX--Gulf Coast Ecosystem Restoration
Council 693
Chapter LX--Federal Communications Commission 697
Finding Aids:
Table of CFR Titles and Chapters........................ 703
Alphabetical List of Agencies Appearing in the CFR...... 723
List of CFR Sections Affected........................... 733
[[Page vi]]
----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 2 CFR 1.100 refers
to title 2, part 1,
section 100.
----------------------------
[[Page vii]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
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evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
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Many agencies have begun publishing numerous OMB control numbers as
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PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
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INCORPORATION BY REFERENCE
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is adequately summarized in the preamble
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(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
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this volume.
[[Page ix]]
An index to the text of ``Title 3--The President'' is carried within
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Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2025.
[[Page xi]]
THIS TITLE
Title 2--Federal Financial Assistance is composed of one volume.
This volume is comprised of Subtitle A--Office of Management and Budget
Guidance for Federal Financial Assistance and Subtitle B--Federal Agency
Regulations for Grants and Agreements. The contents of this volume
represent all current regulations codified under this title of the CFR
as of January 1, 2025.
For this volume, Susannah C. Hurley was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 2--FEDERAL FINANCIAL ASSISTANCE
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SUBTITLE A--Office of Management and Budget Guidance for Federal
Financial Assistance
Part
chapter i--OFFICE OF MANAGEMENT AND BUDGET GOVERNMENT-WIDE
GUIDANCE FOR FEDERAL FINANCIAL ASSISTANCE................. 175
chapter ii--Office of Management and Budget Guidance........ 200
SUBTITLE B--Federal Agency Regulations for Grants and Agreements
chapter iii--Department of Health and Human Services........ 376
chapter iv--Department of Agriculture....................... 417
chapter vi--Department of State............................. 601
chapter vii--Agency for International Development........... 780
chapter viii--Department of Veterans Affairs................ 801
chapter ix--Department of Energy............................ 901
chapter x--Department of Treasury........................... 1000
chapter xi--Department of Defense........................... 1125
chapter xii--Department of Transportation................... 1200
chapter xiii--Department of Commerce........................ 1326
chapter xiv--Department of the Interior..................... 1400
chapter xv--Environmental Protection Agency................. 1532
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chapter xvi--US International Development Finance
Corporation............................................... 1600
chapter xviii--National Aeronautics and Space Administration 1880
chapter xix--U.S. Agency for Global Media................... 1900
chapter xx--United States Nuclear Regulatory Commission..... 2000
chapter xxii--Corporation for National and Community Service 2200
chapter xxiii--Social Security Administration............... 2336
chapter xxiv--Department of Housing and Urban Development... 2424
chapter xxv--National Science Foundation.................... 2520
chapter xxvi--National Archives and Records Administration.. 2600
chapter xxvii--Small Business Administration................ 2700
chapter xxviii--Department of Justice....................... 2867
chapter xxix--Department of Labor........................... 2900
chapter xxx--Department of Homeland Security................ 3000
chapter xxxi--Institute of Museum and Library Services...... 3185
chapter xxxii--National Endowment for the Arts.............. 3254
chapter xxxiii--National Endowment for the Humanities....... 3369
chapter xxxiv--Department of Education...................... 3485
chapter xxxv--Export-Import Bank of the United States....... 3513
chapter xxxvi--Office of National Drug Control Policy,
Executive Office of the President......................... 3603
chapter xxxvii--Peace Corps................................. 3700
chapter lviii--Election Assistance Commission............... 5800
chapter lix--Gulf Coast Ecosystem Restoration Council....... 5900
chapter lx--Federal Communications Commission............... 6000
[[Page 3]]
Subtitle A--Office of Management and Budget Guidance for Federal
Financial Assistance
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Part Page
1 About Title 2 of the Code of Federal
Regulations and Subtitle A.............. 5
[[Page 5]]
PART 1_ABOUT TITLE 2 OF THE CODE OF FEDERAL REGULATIONS AND SUBTITLE A-
-Table of Contents
Subpart A_Introduction to Title 2 of the CFR
1.100 Content of this title.
1.105 Organization and subtitle content.
1.110 Issuing authorities.
Subpart B_Introduction to Subtitle A
1.200 Purpose of chapters I and II.
1.205 Applicability to Federal financial assistance.
1.210 Applicability to Federal agencies and others.
1.215 Relationship to previous issuances.
1.220 Federal agency implementation of this subtitle.
1.230 Maintenance of this subtitle.
1.231 Severability.
Subpart C_Responsibilities of OMB and Federal Agencies
1.300 OMB responsibilities.
1.305 Federal agency responsibilities.
Authority: 31 U.S.C. 503; 31 U.S.C. 1111; 31 U.S.C. 6307; 41 U.S.C.
1121; Reorganization Plan No. 2 of 1970; E.O. 11541, 35 FR 10737.
Source: 89 FR 30108, Apr. 22, 2024, unless otherwise noted.
Subpart A_Introduction to Title 2 of the CFR
Editorial Note: 89 FR 101463, Dec. 16, 2024, updated the subject
matter of Title 2 to ``Federal Financial Assistance'' (previously
``Grants and Agreements'').
Sec. 1.100 Content of this title.
This title contains:
(a) Office of Management and Budget (OMB) guidance to Federal
agencies on government-wide policies for the award and administration of
Federal financial assistance; and
(b) Federal agency regulations implementing that OMB guidance.
Sec. 1.105 Organization and subtitle content.
(a) This title is organized into two subtitles.
(b) The OMB guidance described in Sec. 1.100(a) is published in
subtitle A. Publication of the OMB guidance in the CFR does not change
its nature--it is guidance, not regulation.
(c) Each Federal agency that awards Federal financial assistance has
a chapter in subtitle B in which it issues those regulations. The
Federal agency regulations in subtitle B differ in nature from the OMB
guidance in subtitle A because the OMB guidance is not regulatory.
Federal agency regulations in subtitle B may give regulatory effect to
the OMB guidance, to the extent that the agency regulations require
compliance with all or portions of the OMB guidance. See also Sec.
1.220.
Sec. 1.110 Issuing authorities.
OMB issues this subtitle. Each Federal agency that has a chapter in
subtitle B of this title issues that chapter.
Subpart B_Introduction to Subtitle A
Sec. 1.200 Purpose of chapters I and II.
Chapters I and II of subtitle A provide OMB guidance to Federal
agencies that helps ensure consistent and uniform government-wide
policies and procedures for the management of the agencies' Federal
financial assistance.
Sec. 1.205 Applicability to Federal financial assistance.
The types of instruments that are subject to the guidance in this
subtitle vary from one portion of the guidance to another. All portions
of the guidance apply to grants and cooperative agreements, and some
portions also apply to other types of Federal financial assistance.
Sec. 1.210 Applicability to Federal agencies and others.
(a) This subtitle contains guidance that directly applies only to
Federal agencies.
(b) The guidance in this subtitle may affect other entities through
each Federal agency's implementation of the guidance, portions of which
may apply to:
(1) The agency's awarding or administering officials;
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(2) Recipients and subrecipients that receive or apply for the
agency's Federal financial assistance or receive subawards under grants
or cooperative agreements; or
(3) Any other entities involved in agency transactions subject to
the guidance in this chapter.
Sec. 1.215 Relationship to previous issuances.
Although some of the guidance was organized differently within OMB
circulars or other documents, much of the guidance in this subtitle
existed prior to the establishment of title 2 of the CFR.
Sec. 1.220 Federal agency implementation of this subtitle.
A Federal agency that awards Federal financial assistance subject to
the OMB guidance in this subtitle implements the guidance in agency
regulations in subtitle B of this title and in guidance documents,
policy documents, and procedural issuances, such as internal
instructions to the agency's awarding and administering officials. An
applicant, recipient, or subrecipient would see the effect of that
implementation in the organization and content of the agency's
announcements of funding opportunities and in its award terms and
conditions.
Sec. 1.230 Maintenance of this subtitle.
OMB issues guidance in this subtitle after publication in the
Federal Register. Any portion of the guidance that has a potential
impact on the public is published with an opportunity for public
comment.
Sec. 1.231 Severability.
The provisions of this subtitle are separate and severable from one
another. If any provision of this subtitle is held invalid or
unenforceable as applied to a particular person or circumstance, the
provision should be construed so as to continue to give the maximum
effect permitted by law as applied to other persons not similarly
situated or to dissimilar circumstances. If any provision is determined
to be wholly invalid and unenforceable, it should be severed from the
remaining provisions of this subtitle, which should remain in effect.
Subpart C_Responsibilities of OMB and Federal Agencies
Sec. 1.300 OMB responsibilities.
OMB is responsible for:
(a) Issuing and maintaining the guidance in this subtitle, as
described in Sec. 1.230;
(b) Interpreting the policy requirements in this subtitle;
(c) Reviewing Federal agency regulations implementing the
requirements of this subtitle, as required by Executive Order 12866;
(d) Conducting broad oversight of government-wide compliance with
the guidance in this subtitle; and
(e) Performing other OMB functions specified in this subtitle.
Sec. 1.305 Federal agency responsibilities.
The head of each Federal agency that awards and administers Federal
financial assistance subject to the guidance in this subtitle is
responsible for:
(a) Implementing the guidance in this subtitle;
(b) Ensuring that the Federal agency complies with their
implementation of the guidance;
(c) Coordinating with the Council on Federal Financial Assistance,
the Grants Quality Service Management Office, and other governance
committees as appropriate; and
(d) Performing other functions specified in this subtitle.
[[Page 7]]
CHAPTER I--OFFICE OF MANAGEMENT AND BUDGET GOVERNMENT-WIDE GUIDANCE FOR
FEDERAL FINANCIAL ASSISTANCE
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Part Page
2-24
[Reserved]
25 Unique entity identifier and system for
award management........................ 9
26-169
[Reserved]
170 Reporting subaward and Executive
compensation information................ 12
171-174
[Reserved]
175 Award term for trafficking in persons....... 16
176 Award terms for assistance agreements that
include funds under the American
Recovery and Reinvestment Act of 2009,
Public Law 111-5........................ 20
177-179
[Reserved]
180 OMB guidelines to agencies on government-
wide debarment and suspension
(nonprocurement)........................ 41
181
[Reserved]
182 Governmentwide requirements for drug-free
workplace (financial assistance)........ 66
183 Never contract with the enemy............... 73
184 Buy America preferences for infrastructure
projects................................ 76
185-199
[Reserved]
[[Page 9]]
PARTS 2 24 [RESERVED]
PART 25_UNIQUE ENTITY IDENTIFIER AND SYSTEM FOR AWARD MANAGEMENT-
-Table of Contents
Subpart A_General
Sec.
25.100 Purpose of this part.
25.105 Applicability.
25.110 Exceptions to this part.
Subpart B_Policy
25.200 Requirements for notice of funding opportunities, regulations,
and application instructions.
25.205 Effect of noncompliance with a requirement to obtain a UEI or
register in SAM.gov.
25.210 Authority to modify agency application forms or formats.
25.215 Requirements for agency information systems.
25.220 Use of award term.
Subpart C_Recipient Requirements of Subrecipients
25.300 Requirement for recipients to ensure subrecipients have a unique
entity identifier.
Subpart D_Definitions.
25.400 Definitions.
Appendix A to Part 25--Award Term
Authority: 31 U.S.C. 503; 31 U.S.C. 6101 note; 31 U.S.C. 6102; 31
U.S.C. 6307; 41 U.S.C. 2313; Pub. L. 109-282; Pub. L. 110-252; Pub. L.
113-101; Pub. L. 117-40.
Source: 89 FR 30109, Apr. 22, 2024, unless otherwise noted.
Subpart A_General
Sec. 25.100 Purpose of this part.
This part provides guidance to Federal agencies that:
(a) The unique entity identifier (UEI) is the universal identifier
for Federal financial assistance applicants, as well as recipients and
their direct subrecipients (first-tier subrecipients), and;
(b) The System for Award Management (SAM.gov) is the repository for
standard information about applicants and recipients.
Sec. 25.105 Applicability.
(a) This part applies to a Federal agency's Federal financial
assistance as defined in Sec. 25.400. This part applies to all
applicants for and recipients of Federal financial assistance unless
exempted by Federal statute or Sec. 25.110.
(b) Subrecipients are required to obtain a UEI in accordance with
subpart C. This part does not apply to subrecipients of subrecipients
(second-tier subrecipients) or contractors under Federal awards.
(c) This part does not apply to an individual who applies for or
receives Federal financial assistance as a natural person (unrelated to
any business or nonprofit organization an individual owns or operates).
(d) Because this part applies to loan guarantees and other
guaranteed programs, recipients of the guarantee from the Federal agency
(for example, lenders of guaranteed loans) are required to complete
entity validations and acquire a UEI. Additionally, at the Federal
agency's discretion, non-individual beneficiary borrowers (for example,
small businesses or corporations) may be required by the Federal agency
to obtain a UEI or register in SAM.gov.
Sec. 25.110 Exceptions to this part.
(a) General exceptions. (1) Under a condition identified in
paragraph (a)(2) of this section, a Federal agency may exempt an
applicant or recipient of Federal financial assistance from the
requirement to obtain a UEI, register in SAM.gov, or both.
(i) If a Federal agency grants an exception under paragraph (a)(2)
of this section, the Federal agency must use a generic entity identifier
in the data it reports to USAspending.gov if reporting for a prime award
of Federal financial assistance to the recipient is required by the
Federal Funding Accountability and Transparency Act (Pub. L. 109-282, as
amended, hereafter cited as ``Transparency Act''). Granting an exception
under paragraph (a)(2) of this section does not impact a Federal
agency's responsibility for reporting under the Transparency Act, except
that it may
[[Page 10]]
use a generic entity identifier in the circumstances described.
(ii) Federal agencies should use generic entity identifiers rarely
as it prevents recipients from fulfilling reporting requirements such as
subaward or executive compensation reporting required by the
Transparency Act.
(2) A Federal agency may exempt an applicant, recipient, or
subrecipient when:
(i) The Federal agency determines that it must protect information
about the entity from disclosure in the national security or foreign
policy interests of the United States or to avoid jeopardizing the
personal safety of the entity's staff, partners, beneficiaries, and
participants;
(ii)(A) All of the following conditions are met:
(1) The entity is a foreign organization or foreign public entity;
(2) The Federal award or subaward will be performed outside the
United States;
(3) The Federal award or subaward will be less than $25,000; and
(4) The Federal agency deems it to be impractical for the entity to
comply with the requirements of this part.
(B) The Federal agency must determine this exemption on a case-by-
case basis while utilizing a risk-based approach;
(iii) For applicants or recipients, the Federal agency may exempt
foreign organizations or foreign public entities from completing full
registration in SAM.gov for a Federal award less than $500,000 that will
be performed outside the United States. Foreign organizations or foreign
public entities exempted from registering in SAM.gov under this
provision must still obtain a UEI. The Federal agency must determine
this exemption on a case-by-case basis while utilizing a risk-based
approach; or
(iv) For applicants, the Federal agency determines that there are
exigent circumstances that prohibit the applicant from receiving a UEI
and registering in SAM.gov before receiving a Federal award. In these
instances, Federal agencies must require the recipient to obtain a UEI
and complete registration in SAM.gov within 30 days of the Federal award
date.
(b) Class exceptions. OMB may approve additional exceptions for
classes of Federal awards, applicants, or recipients subject to the
requirements of this part when exceptions are not prohibited by statute.
Subpart B_Policy
Sec. 25.200 Requirements for notice of funding opportunities, regulations,
and application instructions.
(a) A Federal agency that issues Federal financial assistance (see
Sec. 25.400) must include the requirements of paragraph (b) of this
section in each notice of funding opportunity, regulation, or other
issuance containing instructions for applicants that is issued on or
after the effective date of this guidance. A notice of funding
opportunity is any paper or electronic issuance that a Federal agency
uses to announce a funding opportunity, whether it is called a ``program
announcement,'' ``notice of funding availability,'' ``broad agency
announcement,'' ``research announcement,'' ``solicitation,'' or any
other term.
(b) The notice of funding opportunity, regulation, or other issuance
must require each applicant that does not have an exemption under Sec.
25.110 to:
(1) Be registered in SAM.gov before submitting an application;
(2) Maintain a current and active registration in SAM.gov at all
times during which it has an active Federal award as a recipient or an
application under consideration by a Federal agency. The applicant or
recipient must review and update its information in SAM.gov annually
from the date of initial registration or subsequent updates to ensure it
is current, accurate, and complete. If applicable, this includes
identifying the applicant's or recipient's immediate and highest-level
owner and subsidiaries, as well as providing information on all
predecessors that have received a Federal award or contract within the
last three years; and
(3) Include its UEI in each application it submits to the Federal
agency.
(c) For the purposes of this policy, the applicant must meet the
Federal agency's eligibility criteria and have
[[Page 11]]
the legal authority to apply for and receive the Federal award. For
example, if a consortium applies for a Federal award to be made to the
consortium as the recipient, the consortium must have a UEI. If a
consortium is eligible to receive funding under a Federal agency
program, but the agency's policy is to make the Federal award to a lead
entity for the consortium, the UEI of the lead applicant must be used.
Sec. 25.205 Effect of noncompliance with a requirement to obtain a
UEI or register in SAM.gov.
(a) Unless an entity is exempt under Sec. 25.110, a Federal agency
may not issue a Federal award or amend an existing Federal award to
provide additional Federal funds if the entity is not in compliance with
the requirements of this part. This does not apply to amendments to
terminate or close out a Federal award.
(b) At the time a Federal agency is ready to make a Federal award,
if the intended recipient has not complied with the requirements to
obtain a UEI and maintain an active registration in SAM.gov with current
information, the Federal agency may make a Federal award to another
applicant.
Sec. 25.210 Authority to modify agency application forms or formats.
To implement the policies in Sec. Sec. 25.200 and 25.205, a Federal
agency may add a UEI field to information collections previously
approved by OMB, with no further approval required.
Sec. 25.215 Requirements for agency information systems.
Each Federal agency that awards Federal financial assistance (see
Sec. 25.400) must ensure that its information systems are able to both
accept and transmit the UEI as the universal identifier for Federal
financial assistance applicants and recipients.
Sec. 25.220 Use of award term.
(a) A Federal agency must include the award term in Appendix A in
all Federal financial assistance agreements (see Sec. 25.400) to
accomplish the purpose of Sec. 25.100.
(b) A Federal agency may use different letters and numbers than
those in Appendix A to designate the paragraphs of the award term.
Subpart C_Recipient Requirements of Subrecipients
Sec. 25.300 Requirement for recipients to ensure subrecipients have a
unique entity identifier.
(a) A recipient may not make a subaward to a subrecipient that has
not obtained a UEI and provided it to the recipient. Subrecipients are
not required to complete full registration in SAM.gov to obtain a UEI.
(b) A recipient must notify any potential subrecipients that the
recipient cannot make a subaward unless the subrecipient obtains and
provides a UEI to the recipient.
Subpart D_Definitions
Sec. 25.400 Definitions.
Terms not defined in this part have the same meaning as provided in
2 CFR part 200, subpart A. As used in this part:
Applicant means any entity that applies for a Federal award directly
to a Federal agency.
Entity includes:
(1) Whether for profit or nonprofit:
(i) A corporation;
(ii) An association;
(iii) A partnership;
(iv) A limited liability company;
(v) A limited liability partnership;
(vi) A sole proprietorship;
(vii) Any other legal business entity;
(viii) Any other grantee or contractor that is not excluded by
paragraph (2);
(ix) Any State or locality; and
(x) any subcontractor or subgrantee that is not excluded by
paragraph (2);
(2) Does not include:
(i) An individual recipient of Federal financial assistance; or
(ii) A Federal employee.
Federal Award means an award of Federal financial assistance that an
entity receives from a Federal agency.
Federal financial assistance means:
(1) Assistance that entities receive or administer in the form of a:
(i) Grant;
(ii) Cooperative agreement (which does not include a cooperative
research
[[Page 12]]
and development agreement pursuant to the Federal Technology Transfer
Act of 1986, as amended (15 U.S.C. 3710a);
(iii) Loan;
(iv) Loan guarantee;
(v) Subsidy;
(vi) Insurance;
(vii) Food commodity;
(viii) Direct appropriation;
(ix) Assessed or voluntary contribution; or
(x) Any other financial assistance transaction that authorizes the
entity's expenditure of Federal funds.
(2) For the purposes of this part, the term ``Federal financial
assistance'' does not include:
(i) Technical assistance that provides services in lieu of money;
and
(ii) A transfer of title to federally-owned property provided in
lieu of money, even if the award is called a grant.
Recipient means an entity that receives or administers a Federal
Award directly from a Federal agency.
System for Award Management (SAM.gov) means the Federal repository
into which an entity must provide the information required for the
conduct of business as a recipient.
Unique entity identifier means the universal identifier assigned by
SAM.gov to uniquely identify an entity.
Sec. Appendix A to Part 25--Award Term
I. System for Award Management (SAM.gov) and Universal Identifier
Requirements
(a) Requirement for System for Award Management. (1) Unless exempt
from this requirement under 2 CFR 25.110, the recipient must maintain a
current and active registration in SAM.gov. The recipient's registration
must always be current and active until the recipient submits all final
reports required under this Federal award or receives the final payment,
whichever is later. The recipient must review and update its information
in SAM.gov at least annually from the date of its initial registration
or any subsequent updates to ensure it is current, accurate, and
complete. If applicable, this includes identifying the recipient's
immediate and highest-level owner and subsidiaries and providing
information about the recipient's predecessors that have received a
Federal award or contract within the last three years.
(b) Requirement for Unique Entity Identifier (UEI). (1) If the
recipient is authorized to make subawards under this Federal award, the
recipient:
(i) Must notify potential subrecipients that no entity may receive a
subaward until the entity has provided its UEI to the recipient.
(ii) Must not make a subaward to an entity unless the entity has
provided its UEI to the recipient. Subrecipients are not required to
complete full registration in SAM.gov to obtain a UEI.
(c) Definitions. For the purposes of this award term:
System for Award Management (SAM.gov) means the Federal repository
into which a recipient must provide the information required for the
conduct of business as a recipient. Additional information about
registration procedures may be found in SAM.gov (currently at https://
www.sam.gov).
Unique entity identifier means the universal identifier assigned by
SAM.gov to uniquely identify an entity.
Entity is defined at 2 CFR 25.400 and includes all of the following
types as defined in 2 CFR 200.1:
(1) Non-Federal entity;
(2) Foreign organization;
(3) Foreign public entity;
(4) Domestic for-profit organization; and
(5) Federal agency.
Subaward has the meaning given in 2 CFR 200.1.
Subrecipient has the meaning given in 2 CFR 200.1.
PARTS 26 169 [RESERVED]
PART 170_REPORTING SUBAWARD AND EXECUTIVE COMPENSATION INFORMATION-
-Table of Contents
Subpart A_General
Sec.
170.100 Purpose of this part.
170.105 Applicability.
Subpart B_Policy
170.200 Federal agency reporting requirements.
170.210 Requirements for notices of funding opportunities, regulations,
and application instructions.
170.220 Use of award term.
Subpart C_Definitions
170.300 Definitions.
Appendix A to Part 170--Award term
Authority: 31 U.S.C. 503; 31 U.S.C. 6102; 31 U.S.C. 6307; Pub. L.
109-282; Pub. L. 110-252, Pub. L. 113-101, Pub. L. 117-40.
Source: 89 FR 30111, Apr. 22, 2024, unless otherwise noted.
[[Page 13]]
Subpart A_General
Sec. 170.100 Purpose of this part.
This part provides guidance to Federal agencies on establishing
requirements for recipients of Federal awards to report information on
subawards and executive total compensation, as required by the Federal
Funding Accountability and Transparency Act of 2006 (Pub. L. 109-282),
as amended by the Digital Accountability and Transparency Act of 2014
(Pub. L. 113-101) and other Public Laws, hereafter referred to as the
``Transparency Act.''
Sec. 170.105 Applicability.
(a) Applicability in general. This part applies to a Federal
agency's Federal financial assistance as defined in Sec. 170.300. This
part applies to all recipients and subrecipients of Federal awards who
meet the reporting requirements of paragraph (c) of this section, unless
exempt under Federal statute or by paragraph (d) of this section.
(b) Non-applicability to individuals. This part does not apply to an
individual who applies for or receives Federal financial assistance as a
natural person (that is, unrelated to any business or nonprofit
organization an individual owns or operates).
(c) Reporting Requirements. (1) The names and total compensation of
an entity's five most highly compensated executives must be reported if:
(i) In the entity's preceding fiscal year, it received:
(A) 80 percent or more of its annual gross revenue in Federal
procurement contracts (and subcontracts) and Federal awards (and
subawards) subject to the Transparency Act, as defined at Sec. 170.300;
and
(B) $25,000,000 or more in annual gross revenue from Federal
procurement contracts (and subcontracts) and Federal awards (and
subawards) subject to the Transparency Act, as defined at Sec. 170.300;
and
(ii) The public does not have access to information about the
compensation of senior executives of the entity through periodic reports
filed under section 13(a) or 15(d) of the Securities Exchange Act of
1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue
Code of 1986.
(2) [Reserved]
(d) Class exceptions. OMB may approve additional exceptions for
classes of Federal awards or recipients when not prohibited by Federal
statute.
Subpart B_Policy
Sec. 170.200 Federal agency reporting requirements.
(a) Federal agencies must publicly report Federal awards that equal
or exceed the micro-purchase threshold (see 2 CFR 200.1). Federal
agencies must publish the required Federal award information on
USAspending.gov in accordance with the guidance provided by OMB and the
U.S. Department of the Treasury's Government-wide Spending Data Model
(GSDM).
(b) Federal agencies should ensure that their agency-specific
requirements do not require recipients to submit data that is the same
as or similar to data required by the Transparency Act during a given
reporting period.
Sec. 170.210 Requirements for notices of funding opportunities,
regulations, and application instructions.
(a) A Federal agency that makes Federal awards subject to the
Transparency Act must include the requirements of paragraph (b) of this
section in each notice of funding opportunity, regulation, or other
issuance containing instructions for applicants under which Federal
awards may be made that are subject to Transparency Act reporting
requirements. A notice of funding opportunity is any paper or electronic
issuance that a Federal agency uses to announce a funding opportunity,
whether it is called a ``program announcement,'' ``notice of funding
availability,'' ``broad agency announcement,'' ``research
announcement,'' ``solicitation,'' or any other term.
(b) The notice of funding opportunity, regulation, or other issuance
must require each applicant, to which this part applies, to have the
necessary processes and systems in place to comply with this part if
they receive a Federal award.
[[Page 14]]
Sec. 170.220 Use of award term.
(a) A Federal agency must include the award term in Appendix A to
this part in each Federal award to a recipient under which the total
funding is anticipated to equal or exceed $30,000 in Federal funding.
(b) Consistent with paragraph (a) of this section, a Federal agency
is not required to include the award term in Appendix A of this part if
the total amount of Federal funding under the Federal award will not
equal or exceed $30,000. However, the Federal agency must subsequently
add the award term if increases to the Federal funding result in the
award equaling or exceeding $30,000.
(c) A Federal agency may use different letters and numbers than
those in Appendix A to designate the paragraphs of the award term.
Subpart C_Definitions
Sec. 170.300 Definitions.
Terms not defined in this part have the same meaning as provided in
2 CFR part 200, subpart A. As used in this part:
Applicant means any entity that applies for a Federal award directly
from a Federal agency.
Entity includes:
(1) Whether for profit or nonprofit:
(i) A corporation;
(ii) An association;
(iii) A partnership;
(iv) A limited liability company;
(v) A limited liability partnership;
(vi) A sole proprietorship;
(vii) Any other legal business entity;
(viii) Another grantee or contractor that is not excluded by
subparagraph (2) or (3); and
(ix) Any State or locality;
(2) Does not include:
(i) An individual recipient of Federal financial assistance; or
(ii) A Federal employee.
Federal Award means an award of Federal financial assistance that an
entity receives from a Federal agency.
Executive means an officer, managing partner, or any other employee
holding a management position.
Federal financial assistance:
(1) Means assistance that entities receive or administer in the form
of a:
(i) Grant;
(ii) Cooperative agreement (which does not include a cooperative
research and development agreement pursuant to the Federal Technology
Transfer Act of 1986, as amended (15 U.S.C. 3710a);
(iii) Loan;
(iv) Loan guarantee;
(v) Subsidy;
(vi) Insurance;
(vii) Food commodity;
(viii) Direct appropriation;
(ix) Assessed or voluntary contribution; or
(x) Any other financial assistance transaction that authorizes the
entity's expenditure of Federal funds.
(2) For the purposes of this part, the term ``Federal financial
assistance'' does not include:
(i) Technical assistance that provides services in lieu of money;
(ii) A transfer of title to federally-owned property provided in
lieu of money, even if the award is called a grant;
(iii) Any classified Federal award; or
(iv) Any award funded in whole or in part with Recovery funds, as
defined in section 1512 of the American Recovery and Reinvestment Act of
2009 (Pub. L. 111-5).
Recipient means an entity that receives or administers a Federal
Award directly from a Federal agency.
Total Compensation means the cash and noncash dollar value an
executive earns during an entity's preceding fiscal year. This includes
all items of compensation as prescribed in 17 CFR 229.402(c)(2).
Sec. Appendix A to Part 170--Award Term
I. Reporting Subawards and Executive Compensation
(a) Reporting of first-tier subawards--(1) Applicability. Unless the
recipient is exempt as provided in paragraph (d) of this award term, the
recipient must report each subaward that equals or exceeds $30,000 in
Federal funds for a subaward to an entity or Federal agency. The
recipient must also report a subaward if a modification increases the
Federal funding to an amount that equals or exceeds $30,000. All
reported subawards should reflect the total amount of the subaward.
(2) Reporting Requirements. (i) The recipient must report each
subaward described in
[[Page 15]]
paragraph (a)(1) of this award term to the Federal Funding
Accountability and Transparency Act Subaward Reporting System (FSRS) at
http://www.fsrs.gov.
(ii) For subaward information, report no later than the end of the
month following the month in which the subaward was issued. (For
example, if the subaward was made on November 7, 2025, the subaward must
be reported by no later than December 31, 2025).
(b) Reporting total compensation of recipient executives for
entities--(1) Applicability. The recipient must report the total
compensation for each of the recipient's five most highly compensated
executives for the preceding completed fiscal year if:
(i) The total Federal funding authorized to date under this Federal
award equals or exceeds $30,000;
(ii) in the preceding fiscal year, the recipient received:
(A) 80 percent or more of the recipient's annual gross revenues from
Federal procurement contracts (and subcontracts) and Federal awards (and
subawards) subject to the Transparency Act; and
(B) $25,000,000 or more in annual gross revenues from Federal
procurement contracts (and subcontracts) and Federal awards (and
subawards) subject to the Transparency Act; and,
(iii) The public does not have access to information about the
compensation of the executives through periodic reports filed under
section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C.
78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986
after receiving this subaward. (To determine if the public has access to
the compensation information, see the U.S. Security and Exchange
Commission total compensation filings at http://www.sec.gov/answers/
execomp.htm.)
(2) Reporting Requirements. The recipient must report executive
total compensation described in paragraph (b)(1) of this appendix:
(i) As part of the recipient's registration profile at https://
www.sam.gov.
(ii) No later than the month following the month in which this
Federal award is made, and annually after that. (For example, if this
Federal award was made on November 7, 2025, the executive total
compensation must be reported by no later than December 31, 2025.)
(c) Reporting of total compensation of subrecipient executives--(1)
Applicability. Unless a first-tier subrecipient is exempt as provided in
paragraph (d) of this appendix, the recipient must report the executive
total compensation of each of the subrecipient's five most highly
compensated executives for the subrecipient's preceding completed fiscal
year, if:
(i) The total Federal funding authorized to date under the subaward
equals or exceeds $30,000;
(ii) In the subrecipient's preceding fiscal year, the subrecipient
received:
(A) 80 percent or more of its annual gross revenues from Federal
procurement contracts (and subcontracts) and Federal awards (and
subawards) subject to the Transparency Act; and,
(B) $25,000,000 or more in annual gross revenues from Federal
procurement contracts (and subcontracts), and Federal awards (and
subawards) subject to the Transparency Act; and
(iii) The public does not have access to information about the
compensation of the executives through periodic reports filed under
section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C.
78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of
1986after receiving this subaward. (To determine if the public has
access to the compensation information, see the U.S. Security and
Exchange Commission total compensation filings at http://www.sec.gov/
answers/execomp.htm.)
(2) Reporting Requirements. Subrecipients must report to the
recipient their executive total compensation described in paragraph
(c)(1) of this appendix. The recipient is required to submit this
information to the Federal Funding Accountability and Transparency Act
Subaward Reporting System (FSRS) at http://www.fsrs.gov no later than
the end of the month following the month in which the subaward was made.
(For example, if the subaward was made on November 7, 2025, the subaward
must be reported by no later than December 31, 2025).
(d) Exemptions. (1) A recipient with gross income under $300,000 in
the previous tax year is exempt from the requirements to report:
(i) Subawards, and
(ii) The total compensation of the five most highly compensated
executives of any subrecipient.
(e) Definitions.
For purposes of this award term:
Entity includes:
(1) Whether for profit or nonprofit:
(i) A corporation;
(ii) An association;
(iii) A partnership;
(iv) A limited liability company;
(v) A limited liability partnership;
(vi) A sole proprietorship;
(vii) Any other legal business entity;
(viii) Another grantee or contractor that is not excluded by
subparagraph (2); and
(ix) Any State or locality;
(2) Does not include:
(i) An individual recipient of Federal financial assistance; or
(ii) A Federal employee.
[[Page 16]]
Executive means an officer, managing partner, or any other employee
holding a management position.
Subaward has the meaning given in 2 CFR 200.1.
Subrecipient has the meaning given in 2 CFR 200.1.
Total Compensation means the cash and noncash dollar value an
executive earns during an entity's preceding fiscal year. This includes
all items of compensation as prescribed in 17 CFR 229.402(c)(2).
[89 FR 30111, Apr. 22, 2024, as amended at 89 FR 79732, Oct. 1, 2024]
PARTS 171 174 [RESERVED]
PART 175_AWARD TERM FOR TRAFFICKING IN PERSONS--Table of Contents
Sec.
Subpart A_General
175.100 Purpose of this part.
175.105 Statutory requirement.
Subpart B_Guidance
175.200 Use of award term.
175.205 Referral.
Subpart C_Definitions
175.300 Definitions.
Appendix A to Part 175--Award term
Authority: 22 U.S.C. 7104(g); 22 U.S.C. 7104a; 22 U.S.C. 7104b; 22
U.S.C. 7104c; 31 U.S.C. 503; 31 U.S.C. 6307; 31 U.S.C. 1111; 41 U.S.C.
1121; Reorganization Plan No. 2 of 1970; E.O. 11541, 35 FR 10737.
Source: 89 FR 30113, Apr. 22, 2024, unless otherwise noted.
Subpart A_General
Sec. 175.100 Purpose of this part.
This part establishes a Federal award term for grants and
cooperative agreements to implement the requirements in 22 U.S.C.
7104(g); 22 U.S.C. 7104a; 22 U.S.C. 7104b; and 22 U.S.C. 7104c.
Sec. 175.105 Statutory requirement.
(a) Federal agencies are required to include in each Federal grant
or cooperative agreement a condition that authorizes the Federal agency
to terminate the award or take any remedial actions authorized by 22
U.S.C. 7104b(c), without penalty, if a private entity receiving funds
under the award as a recipient or subrecipient engages in:
(1) Severe forms of trafficking in persons;
(2) The procurement of a commercial sex act during the period of
time that the grant or cooperative agreement is in effect;
(3) The use of forced labor in the performance of the grant or
cooperative agreement; or
(4) Acts that directly support or advance trafficking in persons,
including the following acts:
(i) Destroying, concealing, removing, confiscating, or otherwise
denying an employee access to that employee's identity or immigration
documents;
(ii) Failing to provide return transportation or pay for return
transportation costs to an employee from a country outside the United
States to the country from which the employee was recruited upon the end
of employment if requested by the employee, unless:
(A) exempted from the requirement to provide or pay for such return
transportation by the Federal department or agency providing or entering
into the grant or cooperative agreement; or
(B) the employee is a victim of human trafficking seeking victim
services or legal redress in the country of employment or a witness in a
human trafficking enforcement action;
(iii) Soliciting a person for the purpose of employment, or offering
employment, by means of materially false or fraudulent pretenses,
representations, or promises regarding that employment;
(iv) Charging recruited employees a placement or recruitment fee; or
(v) Providing or arranging housing that fails to meet the host
country's housing and safety standards.
(b) Compliance plan and certification requirement:
(1) Certification. Prior to receiving a grant or cooperative
agreement, if the estimated value of services required to be performed
under the grant or cooperative agreement outside the United States
exceeds $500,000, a recipient must certify that:
(i) The recipient has implemented a plan to prevent the activities
described
[[Page 17]]
in paragraph (a) of this section, and is in compliance with this plan;
(ii) The recipient has implemented procedures to prevent any
activities described in paragraph (a) of this section and to monitor,
detect, and terminate any subrecipient, contractor, subcontractor, or
employee of the recipient engaging in any activities described in
paragraph (a) of this section; and
(iii) To the best of the recipient's knowledge, neither the
recipient, nor any subrecipient, contractor, or subcontractor of the
recipient or any agent of the recipient or of such a subrecipient,
contractor, or subcontractor, is engaged in any of the activities
described in paragraph (a) of this section.
(2) Annual certification. The recipient must submit an annual
certification consistent with paragraph (b)(1) of this section for each
year the award is in effect.
(3) Compliance plan. Any plan or procedures implemented pursuant to
paragraph (b) must be appropriate to the size and complexity of the
grant or cooperative agreement and to the nature and scope of its
activities, including the number of non-United States citizens expected
to be employed.
(4) Copies of the compliance plan. The recipient must provide a copy
of the plan to the grant officer upon request, and as appropriate, must
post the useful and relevant contents of the plan or related materials
on its website and at the workplace.
(5) Minimum requirements of the compliance plan. The compliance plan
must include, at a minimum, the following:
(i) An awareness program to inform recipient employees about the
Government's policy prohibiting trafficking-related activities described
in paragraph (a) of this section, the activities prohibited, and the
actions that will be taken against the employee for violations.
Additional information about Trafficking in Persons and examples of
awareness programs can be found at the website for the Department of
State's Office to Monitor and Combat Trafficking in Persons at http://
www.state.gov/j/tip/.
(ii) A process for employees to report, without fear of retaliation,
activity inconsistent with the policy prohibiting trafficking in
persons.
(iii) A recruitment and wage plan that only permits the use of
recruitment companies with trained employees, prohibits charging
recruitment fees to the employees or potential employees and ensures
that wages meet applicable host-country legal requirements or explains
any variance.
(iv) A housing plan, if the recipient, subrecipient, contractor, or
subcontractor intends to provide or arrange housing, that ensures that
the housing meets host-country housing and safety standards.
(v) Procedures to prevent agents, subrecipients, contractors, or
subcontractors at any tier and at any dollar value from engaging in
trafficking in persons, including activities in paragraph (a) of this
section, and to monitor, detect, and terminate any agents, subgrants, or
subrecipient, contractor, or subcontractor employees that have engaged
in such activities.
(c) Notification to Inspectors General and cooperation with
government. The head of a Federal agency making or awarding a grant or
cooperative agreement must require that the recipient of the grant or
cooperative agreement:
(1) Immediately inform the Federal agency and Inspector General of
the Federal agency of any information it receives from any source that
alleges credible information that the recipient, any subrecipient,
contractor, or subcontractor of the recipient, or any agent of the
recipient or of such a subrecipient, contractor, or subcontractor, has
engaged in conduct described in paragraph (a) of this section; and
(2) Fully cooperate with any Federal agencies responsible for
audits, investigations, or corrective actions relating to trafficking in
persons.
Subpart B_Guidance
Sec. 175.200 Use of award term.
(a) To implement the requirements of 22 U.S.C. 7104(g) a Federal
agency must include the award term in Appendix A of this part for the
following Federal awards:
(1) A grant or cooperative agreement to a private entity, as defined
in Sec. 175.300; and
[[Page 18]]
(2) A grant or cooperative agreement to a State, local government,
Indian Tribe, foreign public entity, or any other recipient if funding
under the award could be provided to a subrecipient that is a private
entity.
(b) A Federal agency may use different letters and numbers than
those in Appendix A to designate the paragraphs of the award term. A
Federal agency may also include additional information in the award
term, consistent with the statutory authority of this part, such as
further information on the compliance plan and certification
requirements in Sec. 175.105(b).
Sec. 175.205 Referral.
A Federal agency official should inform the agency's suspension and
debarment official if an award is terminated based on a violation of a
prohibition in the award term under Appendix A.
Subpart C_Definitions
Sec. 175.300 Definitions.
Terms not defined in this part have the same meaning as provided in
2 CFR part 200, subpart A. As used in this part:
Abuse or threatened abuse of law or legal process means the use or
threatened use of a law or legal process, whether administrative, civil,
or criminal, in any manner or for any purpose for which the law was not
designed, in order to exert pressure on another person to cause that
person to take some action or refrain from taking some action.
Coercion means:
(1) Threats of serious harm to or physical restraint against any
person;
(2) Any scheme, plan, or pattern intended to cause a person to
believe that failure to perform an act would result in serious harm to
or physical restraint against any person; or
(3) The abuse or threatened abuse of the legal process.
Commercial sex act means any sex act on account of which anything of
value is given to or received by any person.
Debt bondage means the status or condition of a debtor arising from
a pledge by the debtor of his or her personal services or of those of a
person under his or her control as a security for debt, if the value of
those services as reasonably assessed is not applied toward the
liquidation of the debt or the length and nature of those services are
not respectively limited and defined.
Involuntary servitude includes a condition of servitude induced by
means of:
(1) Any scheme, plan, or pattern intended to cause a person to
believe that, if the person did not enter into or continue in such
condition, that person or another person would suffer serious harm or
physical restraint; or
(2) The abuse or threatened abuse of the legal process.
Private Entity means any entity, including for-profit organizations,
nonprofit organizations, institutes of higher education, and hospitals.
The term does not include foreign public entities, Indian Tribes, local
governments, or states as defined in 2 CFR 200.1.
Recruitment Fee means fees of any type, including charges, costs,
assessments, or other financial obligations, that are associated with
the recruiting process, regardless of the time, manner, or location of
imposition or collection of the fee.
(1) Recruitment fees include, but are not limited to, the following
fees (when they are associated with the recruiting process) for:
(i) Advertising;
(ii) Obtaining permanent or temporary labor certification, including
any associated fees;
(iii) Processing applications and petitions;
(iv) Acquiring visas, including any associated fees;
(v) Acquiring photographs and identity or immigration documents,
such as passports, including any associated fees;
(vi) Accessing the job opportunity, including required medical
examinations and immunizations; background, reference, and security
clearance checks and examinations; and additional certifications;
(vii) An employer's recruiters, agents or attorneys, or other notary
or legal fees;
(viii) Language interpretation or translation, arranging for or
accompanying on travel, or providing other
[[Page 19]]
advice to employees or potential employees;
(ix) Government-mandated fees, such as border crossing fees, levies,
or worker welfare fund;
(x) Transportation and subsistence costs:
(A) While in transit, including, but not limited to, airfare or
costs of other modes of transportation, terminal fees, and travel taxes
associated with travel from the country of origin to the country of
performance and the return journey upon the end of employment; and
(B) From the airport or disembarkation point to the worksite;
(xi) Security deposits, bonds, and insurance; and
(xii) Equipment charges.
(2) A recruitment fee, as described in the introductory text of this
definition, is a recruitment fee, regardless of whether the payment is:
(i) Paid in property or money;
(ii) Deducted from wages;
(iii) Paid back in wage or benefit concessions;
(iv) Paid back as a kickback, bribe, in-kind payment, free labor,
tip, or tribute; or
(v) Collected by an employer or a third party, whether licensed or
unlicensed, including, but not limited to:
(A) Agents;
(B) Labor brokers;
(C) Recruiters;
(D) Staffing firms (including private employment and placement
firms);
(E) Subsidiaries/affiliates of the employer;
(F) Any agent or employee of such entities; and
(G) Subcontractors at all tiers.
Severe forms of trafficking in persons means:
(1) Sex trafficking in which a commercial sex act is induced by
force, fraud, or coercion or in which the person induced to perform such
act has not attained 18 years of age; or
(2) The recruitment, harboring, transportation, provision, or
obtaining of a person for labor or services, through the use of force,
fraud, or coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage or slavery.
Sex trafficking means the recruitment, harboring, transportation,
provision, obtaining, patronizing, or soliciting of a person for the
purpose of a commercial sex act.
Sec. Appendix A to Part 175--Award Term
I. Trafficking in Persons
(a) Provisions applicable to a recipient that is a private entity.
(1) Under this award, the recipient, its employees, subrecipients under
this award, and subrecipient's employees must not engage in:
(i) Severe forms of trafficking in persons;
(ii) The procurement of a commercial sex act during the period of
time that this award or any subaward is in effect;
(iii) The use of forced labor in the performance of this award or
any subaward; or
(iv) Acts that directly support or advance trafficking in persons,
including the following acts:
(A) Destroying, concealing, removing, confiscating, or otherwise
denying an employee access to that employee's identity or immigration
documents;
(B) Failing to provide return transportation or pay for return
transportation costs to an employee from a country outside the United
States to the country from which the employee was recruited upon the end
of employment if requested by the employee, unless:
(1) Exempted from the requirement to provide or pay for such return
transportation by the Federal department or agency providing or entering
into the grant or cooperative agreement; or
(2) The employee is a victim of human trafficking seeking victim
services or legal redress in the country of employment or a witness in a
human trafficking enforcement action;
(C) Soliciting a person for the purpose of employment, or offering
employment, by means of materially false or fraudulent pretenses,
representations, or promises regarding that employment;
(D) Charging recruited employees a placement or recruitment fee; or
(E) Providing or arranging housing that fails to meet the host
country's housing and safety standards.
(2) The Federal agency may unilaterally terminate this award or take
any remedial actions authorized by 22 U.S.C. 7104b(c), without penalty,
if any private entity under this award:
(i) Is determined to have violated a prohibition in paragraph (a)(1)
of this appendix; or
(ii) Has an employee that is determined to have violated a
prohibition in paragraph (a)(1) of this this appendix through conduct
that is either:
(A) Associated with the performance under this award; or
[[Page 20]]
(B) Imputed to the recipient or the subrecipient using the standards
and due process for imputing the conduct of an individual to an
organization that are provided in 2 CFR part 180, ``OMB Guidelines to
Agencies on Government-wide Debarment and Suspension (Nonprocurement),''
as implemented by our agency at [agency must insert reference here to
its regulatory implementation of the OMB guidelines in 2 CFR part 180
(for example, ``2 CFR part XX'')].
(b) Provision applicable to a recipient other than a private entity.
(1) The Federal agency may unilaterally terminate this award or take any
remedial actions authorized by 22 U.S.C. 7104b(c), without penalty, if a
subrecipient that is a private entity under this award:
(i) Is determined to have violated a prohibition in paragraph (a)(1)
of this appendix; or
(ii) Has an employee that is determined to have violated a
prohibition in paragraph (a)(1) of this appendix through conduct that is
either:
(A) Associated with the performance under this award; or
(B) Imputed to the subrecipient using the standards and due process
for imputing the conduct of an individual to an organization that are
provided in 2 CFR part 180, ``OMB Guidelines to Agencies on Government-
wide Debarment and Suspension (Nonprocurement),'' as implemented by our
agency at [agency must insert reference here to its regulatory
implementation of the OMB guidelines in 2 CFR part 180 (for example, ``2
CFR part XX'')].
(c) Provisions applicable to any recipient. (1) The recipient must
inform the Federal agency and the Inspector General of the Federal
agency immediately of any information you receive from any source
alleging a violation of a prohibition in paragraph (a)(1) of this
appendix.
(2) The Federal agency's right to unilaterally terminate this award
as described in paragraphs (a)(2) or (b)(1) of this appendix:
(i) Implements the requirements of 22 U.S.C. 78, and
(ii) Is in addition to all other remedies for noncompliance that are
available to the Federal agency under this award.
(3) The recipient must include the requirements of paragraph (a)(1)
of this award term in any subaward it makes to a private entity.
(4) If applicable, the recipient must also comply with the
compliance plan and certification requirements in 2 CFR 175.105(b).
(d) Definitions. For purposes of this award term:
Employee means either:
(1) An individual employed by the recipient or a subrecipient who is
engaged in the performance of the project or program under this award;
or
(2) Another person engaged in the performance of the project or
program under this award and not compensated by the recipient including,
but not limited to, a volunteer or individual whose services are
contributed by a third party as an in-kind contribution toward cost
sharing requirements.
Private Entity means any entity, including for-profit organizations,
nonprofit organizations, institutions of higher education, and
hospitals. The term does not include foreign public entities, Indian
Tribes, local governments, or states as defined in 2 CFR 200.1.
The terms ``severe forms of trafficking in persons,'' ``commercial
sex act,'' ``sex trafficking,'' ``Abuse or threatened abuse of law or
legal process,'' ``coercion,'' ``debt bondage,'' and ``involuntary
servitude'' have the meanings given at section 103 of the TVPA, as
amended (22 U.S.C. 7102).
PART 176_AWARD TERMS FOR ASSISTANCE AGREEMENTS THAT INCLUDE FUNDS UNDER
THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009, PUBLIC LAW 111-5-
-Table of Contents
Sec.
176.10 Purpose of this part.
176.20 Agency responsibilities (general).
176.30 Definitions.
Subpart A_Reporting and Registration Requirements under Section 1512 of
the American Recovery and Reinvestment Act of 2009
176.40 Procedure.
176.50 Award term--Reporting and registration requirements under section
1512 of the Recovery Act.
Subpart B_Buy American Requirement under Section 1605 of the American
Recovery and Reinvestment Act of 2009
176.60 Statutory requirement.
176.70 Policy.
176.80 Exceptions.
176.90 Acquisitions covered under international agreements.
176.100 Timely determination concerning the inapplicability of section
1605 of the Recovery Act.
176.110 Evaluating proposals of foreign iron, steel, and/or manufactured
goods.
176.120 Determinations on late requests.
176.130 Noncompliance.
176.140 Award term--Required Use of American Iron, Steel, and
Manufactured Goods--Section 1605 of the American Recovery and
Reinvestment Act of 2009.
[[Page 21]]
176.150 Notice of Required Use of American Iron, Steel, and Manufactured
Goods--Section 1605 of the American Recovery and Reinvestment
Act of 2009.
176.160 Award term--Required Use of American Iron, Steel, and
Manufactured Goods (covered under International Agreements)--
Section 1605 of the American Recovery and Reinvestment Act of
2009.
176.170 Notice of Required Use of American Iron, Steel, and Manufactured
Goods (covered under International Agreements)--Section 1605
of the American Recovery and Reinvestment Act of 2009.
Appendix to Subpart B of Part 176--U.S. States, Other Sub-Federal
Entities, and Other Entities Subject to U.S. Obligations Under
International Agreements (as of February 16, 2010)
Subpart C_Wage Rate Requirements under Section 1606 of the American
Recovery and Reinvestment Act of 2009
176.180 Procedure.
176.190 Award term--Wage rate requirements under Section 1606 of the
Recovery Act.
Subpart D_Single Audit Information for Recipients of Recovery Act Funds
176.200 Procedure.
176.210 Award term--Recovery Act transactions listed in Schedule of
Expenditures of Federal Awards and Recipient Responsibilities
for Informing Subrecipients.
Authority: American Recovery and Reinvestment Act of 2009, Public
Law 111-5; Federal Funding Accountability and Transparency Act of 2006,
(Pub. L. 109-282), as amended.
Source: 74 FR 18450, Apr. 23, 2009, unless otherwise noted.
Sec. 176.10 Purpose of this part.
This part establishes Federal Governmentwide award terms for
financial assistance awards, namely, grants, cooperative agreements, and
loans, to implement the cross-cutting requirements of the American
Recovery and Reinvestment Act of 2009, Public Law 111-5 (Recovery Act).
These requirements are cross-cutting in that they apply to more than one
agency's awards.
Sec. 176.20 Agency responsibilities (general).
(a) In any assistance award funded in whole or in part by the
Recovery Act, the award official shall indicate that the award is being
made under the Recovery Act, and indicate what projects and/or
activities are being funded under the Recovery Act. This requirement
applies whenever Recovery Act funds are used, regardless of the
assistance type.
(b) To maximize transparency of Recovery Act funds required for
reporting by the assistance recipient, the award official shall consider
structuring assistance awards to allow for separately tracking Recovery
Act funds.
(c) Award officials shall ensure that recipients comply with the
Recovery Act requirements of Subpart A. If the recipient fails to comply
with the reporting requirements or other award terms, the award official
or other authorized agency action official shall take the appropriate
enforcement or termination action in accordance with 2 CFR 215.62 or the
agency's implementation of the OMB Circular A-102 grants management
common rule. OMB Circular A-102 is available at http://
www.whitehouse.gov /omb/circulars/a102 /a102.html.
(d) The award official shall make the recipient's failure to comply
with the reporting requirements a part of the recipient's performance
record.
Sec. 176.30 Definitions.
As used in this part--
Award means any grant, cooperative agreement or loan made with
Recovery Act funds. Award official means a person with the authority to
enter into, administer, and/or terminate financial assistance awards and
make related determinations and findings.
Classified or ``classified information'' means any knowledge that
can be communicated or any documentary material, regardless of its
physical form or characteristics, that--
(1)(i) Is owned by, is produced by or for, or is under the control
of the United States Government; or
(ii) Has been classified by the Department of Energy as privately
generated restricted data following the procedures in 10 CFR 1045.21;
and
[[Page 22]]
(2) Must be protected against unauthorized disclosure according to
Executive Order 12958, Classified National Security Information, April
17, 1995, or classified in accordance with the Atomic Energy Act of
1954.
Recipient means any entity other than an individual that receives
Recovery Act funds in the form of a grant, cooperative agreement or loan
directly from the Federal Government.
Recovery funds or Recovery Act funds are funds made available
through the appropriations of the American Recovery and Reinvestment Act
of 2009, Public Law 111-5.
Subaward means--
(1) A legal instrument to provide support for the performance of any
portion of the substantive project or program for which the recipient
received this award and that the recipient awards to an eligible
subrecipient;
(2) The term does not include the recipient's procurement of
property and services needed to carry out the project or program (for
further explanation, see Sec. ____.210 of the attachment to OMB Circular
A-133, ``Audits of States, Local Governments, and Non-Profit
Organizations''). OMB Circular A-133 is available at http://
www.whitehouse.gov /omb/circulars/a133 /a133.html.
(3) A subaward may be provided through any legal agreement,
including an agreement that the recipient or a subrecipient considers a
contract.
Subcontract means a legal instrument used by a recipient for
procurement of property and services needed to carry out the project or
program.
Subrecipient or Subawardee means a non-Federal entity that expends
Federal awards received from a pass-through entity to carry out a
Federal program, but does not include an individual that is a
beneficiary of such a program. A subrecipient may also be a recipient of
other Federal awards directly from a Federal awarding agency. Guidance
on distinguishing between a subrecipient and a vendor is provided in
Sec. ____.210 of OMB Circular A-133.
Subpart A_Reporting and Registration Requirements Under Section 1512 of
the American Recovery and Reinvestment Act of 2009
Sec. 176.40 Procedure.
The award official shall insert the standard award term in this
subpart in all awards funded in whole or in part with Recovery Act
funds, except for those that are classified, awarded to individuals, or
awarded under mandatory and entitlement programs, except as specifically
required by OMB, or expressly exempted from the reporting requirement in
the Recovery Act.
Sec. 176.50 Award term--Reporting and registration requirements under
section 1512 of the Recovery Act.
Agencies are responsible for ensuring that their recipients report
information required under the Recovery Act in a timely manner. The
following award term shall be used by agencies to implement the
recipient reporting and registration requirements in section 1512:
(a) This award requires the recipient to complete projects or
activities which are funded under the American Recovery and Reinvestment
Act of 2009 (Recovery Act) and to report on use of Recovery Act funds
provided through this award. Information from these reports will be made
available to the public.
(b) The reports are due no later than ten calendar days after each
calendar quarter in which the recipient receives the assistance award
funded in whole or in part by the Recovery Act.
(c) Recipients and their first-tier recipients must maintain current
registrations in the System of Award Management (http://www.ccr.gov) at
all times during which they have active federal awards funded with
Recovery Act funds. A Dun and Bradstreet Data Universal Numbering System
(DUNS) Number (http://www.dnb.com) is one of the requirements for
registration in the System of Award Management.
(d) The recipient shall report the information described in section
1512(c) of the Recovery Act using the reporting instructions and data
elements that will be provided online at http://
[[Page 23]]
www.FederalReporting.gov and ensure that any information that is pre-
filled is corrected or updated as needed.
Subpart B_Buy American Requirement Under Section 1605 of the American
Recovery and Reinvestment Act of 2009
Sec. 176.60 Statutory requirement.
Section 1605 of the Recovery Act prohibits use of recovery funds for
a project for the construction, alteration, maintenance, or repair of a
public building or public work unless all of the iron, steel, and
manufactured goods used in the project are produced in the United
States. The law requires that this prohibition be applied in a manner
consistent with U.S. obligations under international agreements, and it
provides for waiver under three circumstances:
(a) Iron, steel, or relevant manufactured goods are not produced in
the United States in sufficient and reasonably available quantities and
of a satisfactory quality;
(b) Inclusion of iron, steel, or manufactured goods produced in the
United States will increase the cost of the overall project by more than
25 percent; or
(c) Applying the domestic preference would be inconsistent with the
public interest.
Sec. 176.70 Policy.
Except as provided in Sec. 176.80 or Sec. 176.90--
(a) None of the funds appropriated or otherwise made available by
the Recovery Act may be used for a project for the construction,
alteration, maintenance, or repair of a public building or public work
(see definitions at Sec. Sec. 176.140 and 176.160) unless--
(1) The public building or public work is located in the United
States; and
(2) All of the iron, steel, and manufactured goods used in the
project are produced or manufactured in the United States.
(i) Production in the United States of the iron or steel used in the
project requires that all manufacturing processes must take place in the
United States, except metallurgical processes involving refinement of
steel additives. These requirements do not apply to iron or steel used
as components or subcomponents of manufactured goods used in the
project.
(ii) There is no requirement with regard to the origin of components
or subcomponents in manufactured goods used in the project, as long as
the manufacturing occurs in the United States.
(b) Paragraph (a) of this section shall not apply where the Recovery
Act requires the application of alternative Buy American requirements
for iron, steel, and manufactured goods.
Sec. 176.80 Exceptions.
(a) When one of the following exceptions applies in a case or
category of cases, the award official may allow the recipient to use
foreign iron, steel and/or manufactured goods in the project without
regard to the restrictions of section 1605 of the Recovery Act:
(1) Nonavailability. The head of the Federal department or agency
may determine that the iron, steel or relevant manufactured good is not
produced or manufactured in the United States in sufficient and
reasonably available commercial quantities of a satisfactory quality.
The determinations of nonavailability of the articles listed at 48 CFR
25.104(a) and the procedures at 48 CFR 25.103(b)(1) also apply if any of
those articles are manufactured goods needed in the project.
(2) Unreasonable cost. The head of the Federal department or agency
may determine that the cost of domestic iron, steel, or relevant
manufactured goods will increase the cost of the overall project by more
than 25 percent in accordance with Sec. 176.110.
(3) Inconsistent with public interest. The head of the Federal
department or agency may determine that application of the restrictions
of section 1605 of the Recovery Act would be inconsistent with the
public interest.
(b) When a determination is made for any of the reasons stated in
this section that certain foreign iron, steel, and/or manufactured goods
may be used--
(1) The award official shall list the excepted materials in the
award; and
[[Page 24]]
(2) The head of the Federal department or agency shall publish a
notice in the Federal Register within two weeks after the determination
is made, unless the item has already been determined to be domestically
nonavailable. A list of items that are not domestically available is at
48 CFR 25.104(a). The Federal Register notice or information from the
notice may be posted by OMB to Recovery.gov. The notice shall include--
(i) The title ``Buy American Exception under the American Recovery
and Reinvestment Act of 2009'';
(ii) The dollar value and brief description of the project; and
(iii) A detailed written justification as to why the restriction is
being waived.
Sec. 176.90 Acquisitions covered under international agreements.
Section 1605(d) of the Recovery Act provides that the Buy American
requirement in section 1605 shall be applied in a manner consistent with
U.S. obligations under international agreements.
(a) The Buy American requirement set out in Sec. 176.70 shall not
be applied where the iron, steel, or manufactured goods used in the
project are from a Party to an international agreement, listed in
paragraph (b) of this section, and the recipient is required under an
international agreement, described in the appendix to this subpart, to
treat the goods and services of that Party the same as domestic goods
and services. As of January 1, 2010, this obligation shall only apply to
projects with an estimated value of $7,804,000 or more and projects that
are not specifically excluded from the application of those agreements.
(b) The international agreements that obligate recipients that are
covered under an international agreement to treat the goods and services
of a Party the same as domestic goods and services and the respective
Parties to the agreements are:
(1) The World Trade Organization Government Procurement Agreement
(Aruba, Austria, Belgium, Bulgaria, Canada, Chinese Taipei (Taiwan),
Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan,
Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg,
Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak
Republic, Slovenia, Spain, Sweden, Switzerland, and United Kingdom);
(2) The following Free Trade Agreements:
(i) Dominican Republic-Central America-United States Free Trade
Agreement (Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Nicaragua);
(ii) North American Free Trade Agreement (NAFTA) (Canada and
Mexico);
(iii) United States-Australia Free Trade Agreement;
(iv) United States-Bahrain Free Trade Agreement;
(v) United States-Chile Free Trade Agreement;
(vi) United States-Israel Free Trade Agreement;
(vii) United States-Morocco Free Trade Agreement;
(viii) United States-Oman Free Trade Agreement;
(ix) United States-Peru Trade Promotion Agreement; and
(x) United States-Singapore Free Trade Agreement.
(3) United States-European Communities Exchange of Letters (May 15,
1995): Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy,
Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal,
Romania, Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom;
and
(4) Agreement between the Government of Canada and the Government of
the United States of America on Government Procurement.
[74 FR 18450, Apr. 23, 2009, as amended at 75 FR 14323, Mar. 25, 2010]
Sec. 176.100 Timely determination concerning the inapplicability of
section 1605 of the Recovery Act.
(a) The head of the Federal department or agency involved may make a
determination regarding inapplicability of section 1605 to a particular
case or to a category of cases.
[[Page 25]]
(b) Before Recovery Act funds are awarded by the Federal agency or
obligated by the recipient for a project for the construction,
alteration, maintenance, or repair of a public building or public work,
an applicant or recipient may request from the award official a
determination concerning the inapplicability of section 1605 of the
Recovery Act for specifically identified items.
(c) The time for submitting the request and the information and
supporting data that must be included in the request are to be specified
in the agency's and recipient's request for applications and/or
proposals, and as appropriate, in other written communications. The
content of those communications should be consistent with the notice in
Sec. 176.150 or Sec. 176.170, whichever applies.
(d) The award official must evaluate all requests based on the
information provided and may supplement this information with other
readily available information.
(e) In making a determination based on the increased cost to the
project of using domestic iron, steel, and/or manufactured goods, the
award official must compare the total estimated cost of the project
using foreign iron, steel and/or relevant manufactured goods to the
estimated cost if all domestic iron, steel, and/or relevant manufactured
goods were used. If use of domestic iron, steel, and/or relevant
manufactured goods would increase the cost of the overall project by
more than 25 percent, then the award official shall determine that the
cost of the domestic iron, steel, and/or relevant manufactured goods is
unreasonable.
Sec. 176.110 Evaluating proposals of foreign iron, steel, and/or
manufactured goods.
(a) If the award official receives a request for an exception based
on the cost of certain domestic iron, steel, and/or manufactured goods
being unreasonable, in accordance with Sec. 176.80, then the award
official shall apply evaluation factors to the proposal to use such
foreign iron, steel, and/or manufactured goods as follows:
(1) Use an evaluation factor of 25 percent, applied to the total
estimated cost of the project, if the foreign iron, steel, and/or
manufactured goods are to be used in the project based on an exception
for unreasonable cost requested by the applicant.
(2) Total evaluated cost = project cost estimate + (.25 x project
cost estimate, if paragraph (a)(1) of this section applies).
(b) Applicants or recipients also may submit alternate proposals
based on use of equivalent domestic iron, steel, and/or manufactured
goods to avoid possible denial of Recovery Act funding for the proposal
if the Federal Government determines that an exception permitting use of
the foreign item(s) does not apply.
(c) If the award official makes an award to an applicant that
proposed foreign iron, steel, and/or manufactured goods not listed in
the applicable notice in the request for applications or proposals, then
the award official must add the excepted materials to the list in the
award term.
Sec. 176.120 Determinations on late requests.
(a) If a recipient requests a determination regarding the
inapplicability of section 1605 of the Recovery Act after obligating
Recovery Act funds for a project for construction, alteration,
maintenance, or repair (late request), the recipient must explain why it
could not request the determination before making the obligation or why
the need for such determination otherwise was not reasonably
foreseeable. If the award official concludes that the recipient should
have made the request before making the obligation, the award official
may deny the request.
(b) The award official must base evaluation of any late request for
a determination regarding the inapplicability of section 1605 of the
Recovery Act on information required by Sec. 176.150(c) and (d) or
Sec. 176.170(c) and (d) and/or other readily available information.
(c) If a determination, under Sec. 176.80 is made after Recovery
Act funds were obligated for a project for construction, alteration,
maintenance, or repair that an exception to section 1605 of the Recovery
Act applies, the award official must amend the award to allow use of the
foreign iron, steel, and/or relevant manufactured goods. When
[[Page 26]]
the basis of the exception is nonavailability or public interest, the
amended award shall reflect adjustment of the award amount,
redistribution of budgeted funds, and/or other appropriate actions taken
to cover costs associated with acquiring or using the foreign iron,
steel, and/or manufactured goods. When the basis for the exception is
the unreasonable cost of domestic iron, steel, and/or manufactured goods
the award official shall adjust the award amount or the budget, as
appropriate, by at least the differential established in Sec.
176.110(a).
Sec. 176.130 Noncompliance.
The award official must--
(a) Review allegations of violations of section 1605 of the Recovery
Act;
(b) Unless fraud is suspected, notify the recipient of the apparent
unauthorized use of foreign iron, steel, and/or manufactured goods and
request a reply, to include proposed corrective action; and
(c) If the review reveals that a recipient or subrecipient has used
foreign iron, steel, and/or manufactured goods without authorization,
take appropriate action, including one or more of the following:
(1) Process a determination concerning the inapplicability of
section 1605 of the Recovery Act in accordance with Sec. 176.120.
(2) Consider requiring the removal and replacement of the
unauthorized foreign iron, steel, and/or manufactured goods.
(3) If removal and replacement of foreign iron, steel, and/or
manufactured goods used in a public building or a public work would be
impracticable, cause undue delay, or otherwise be detrimental to the
interests of the Federal Government, the award official may determine in
writing that the foreign iron, steel, and/or manufactured goods need not
be removed and replaced. A determination to retain foreign iron, steel,
and/or manufactured goods does not constitute a determination that an
exception to section 1605 of the Recovery Act applies, and this should
be stated in the determination. Further, a determination to retain
foreign iron, steel, and/or manufactured goods does not affect the
Federal Government's right to reduce the amount of the award by the cost
of the steel, iron, or manufactured goods that are used in the project
or to take enforcement or termination action in accordance with the
agency's grants management regulations.
(4) If the noncompliance is sufficiently serious, consider
exercising appropriate remedies, such as withholding cash payments
pending correction of the deficiency, suspending or terminating the
award, and withholding further awards for the project. Also consider
preparing and forwarding a report to the agency suspending or debarring
official in accordance with the agency's debarment rule implementing 2
CFR part 180. If the noncompliance appears to be fraudulent, refer the
matter to other appropriate agency officials, such as the officer
responsible for criminal investigation.
Sec. 176.140 Award term--Required Use of American Iron, Steel, and
Manufactured Goods--Section 1605 of the American Recovery and Reinvestment
Act of 2009.
When awarding Recovery Act funds for construction, alteration,
maintenance, or repair of a public building or public work that does not
involve iron, steel, and/or manufactured goods covered under
international agreements, the agency shall use the award term described
in the following paragraphs:
(a) Definitions. As used in this award term and condition--
(1) Manufactured good means a good brought to the construction site
for incorporation into the building or work that has been--
(i) Processed into a specific form and shape; or
(ii) Combined with other raw material to create a material that has
different properties than the properties of the individual raw
materials.
(2) Public building and public work means a public building of, and
a public work of, a governmental entity (the United States; the District
of Columbia; commonwealths, territories, and minor outlying islands of
the United States; State and local governments; and multi-State,
regional, or interstate entities which have governmental functions).
These buildings and works may include, without limitation,
[[Page 27]]
bridges, dams, plants, highways, parkways, streets, subways, tunnels,
sewers, mains, power lines, pumping stations, heavy generators,
railways, airports, terminals, docks, piers, wharves, ways, lighthouses,
buoys, jetties, breakwaters, levees, and canals, and the construction,
alteration, maintenance, or repair of such buildings and works.
(3) Steel means an alloy that includes at least 50 percent iron,
between .02 and 2 percent carbon, and may include other elements.
(b) Domestic preference. (1) This award term and condition
implements Section 1605 of the American Recovery and Reinvestment Act of
2009 (Recovery Act) (Pub. L. 111-5), by requiring that all iron, steel,
and manufactured goods used in the project are produced in the United
States except as provided in paragraph (b)(3) and (b)(4) of this section
and condition.
(2) This requirement does not apply to the material listed by the
Federal Government as follows:
________________________________________________________________________
[Award official to list applicable excepted materials or indicate
``none'']
(3) The award official may add other iron, steel, and/or
manufactured goods to the list in paragraph (b)(2) of this section and
condition if the Federal Government determines that--
(i) The cost of the domestic iron, steel, and/or manufactured goods
would be unreasonable. The cost of domestic iron, steel, or manufactured
goods used in the project is unreasonable when the cumulative cost of
such material will increase the cost of the overall project by more than
25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or
manufactured in the United States in sufficient and reasonably available
quantities and of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the
Recovery Act would be inconsistent with the public interest.
(c) Request for determination of inapplicability of Section 1605 of
the Recovery Act. (1)(i) Any recipient request to use foreign iron,
steel, and/or manufactured goods in accordance with paragraph (b)(3) of
this section shall include adequate information for Federal Government
evaluation of the request, including--
(A) A description of the foreign and domestic iron, steel, and/or
manufactured goods;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron,
steel, and/or manufactured goods cited in accordance with paragraph
(b)(3) of this section.
(ii) A request based on unreasonable cost shall include a reasonable
survey of the market and a completed cost comparison table in the format
in paragraph (d) of this section.
(iii) The cost of iron, steel, and/or manufactured goods material
shall include all delivery costs to the construction site and any
applicable duty.
(iv) Any recipient request for a determination submitted after
Recovery Act funds have been obligated for a project for construction,
alteration, maintenance, or repair shall explain why the recipient could
not reasonably foresee the need for such determination and could not
have requested the determination before the funds were obligated. If the
recipient does not submit a satisfactory explanation, the award official
need not make a determination.
(2) If the Federal Government determines after funds have been
obligated for a project for construction, alteration, maintenance, or
repair that an exception to section 1605 of the Recovery Act applies,
the award official will amend the award to allow use of the foreign
iron, steel, and/or relevant manufactured goods. When the basis for the
exception is nonavailability or public interest, the amended award shall
reflect adjustment of the award amount, redistribution of budgeted
funds, and/or other actions taken to cover costs associated with
acquiring or using the foreign iron, steel, and/or relevant manufactured
goods. When the basis for the exception is the unreasonable cost of the
domestic iron,
[[Page 28]]
steel, or manufactured goods, the award official shall adjust the award
amount or redistribute budgeted funds by at least the differential
established in 2 CFR 176.110(a).
(3) Unless the Federal Government determines that an exception to
section 1605 of the Recovery Act applies, use of foreign iron, steel,
and/or manufactured goods is noncompliant with section 1605 of the
American Recovery and Reinvestment Act.
(d) Data. To permit evaluation of requests under paragraph (b) of
this section based on unreasonable cost, the Recipient shall include the
following information and any applicable supporting data based on the
survey of suppliers:
Foreign and Domestic Items Cost Comparison
----------------------------------------------------------------------------------------------------------------
Description Unit of measure Quantity Cost (dollars)*
----------------------------------------------------------------------------------------------------------------
Item 1:......................................................
Foreign steel, iron, or manufactured good................ _____ _____ _____
Domestic steel, iron, or manufactured good............... _____ _____ _____
Item 2:......................................................
Foreign steel, iron, or manufactured good................ _____ _____ _____
Domestic steel, iron, or manufactured good............... _____ _____ _____
----------------------------------------------------------------------------------------------------------------
[List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of
response; if oral, attach summary.]
[Include other applicable supporting information.]
[*Include all delivery costs to the construction site.]
Sec. 176.150 Notice of Required Use of American Iron, Steel, and
Manufactured Goods--Section 1605 of the American Recovery and Reinvestment
Act of 2009.
When requesting applications or proposals for Recovery Act programs
or activities that may involve construction, alteration, maintenance, or
repair of a public building or public work, and do not involve iron,
steel, and/or manufactured goods covered under international agreements,
the agency shall use the notice described in the following paragraphs in
their solicitations:
(a) Definitions. Manufactured good, public building and public work,
and steel, as used in this notice, are defined in the 2 CFR 176.140.
(b) Requests for determinations of inapplicability. A prospective
applicant requesting a determination regarding the inapplicability of
section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub.
L. 111-5) (Recovery Act) should submit the request to the award official
in time to allow a determination before submission of applications or
proposals. The prospective applicant shall include the information and
applicable supporting data required by paragraphs at 2 CFR 176.140(c)
and (d) in the request. If an applicant has not requested a
determination regarding the inapplicability of 1605 of the Recovery Act
before submitting its application or proposal, or has not received a
response to a previous request, the applicant shall include the
information and supporting data in the application or proposal.
(c) Evaluation of project proposals. If the Federal Government
determines that an exception based on unreasonable cost of domestic
iron, steel, and/or manufactured goods applies, the Federal Government
will evaluate a project requesting exception to the requirements of
section 1605 of the Recovery Act by adding to the estimated total cost
of the project 25 percent of the project cost, if foreign iron, steel,
or manufactured goods are used in the project based on unreasonable cost
of comparable manufactured domestic iron, steel, and/or manufactured
goods.
(d) Alternate project proposals. (1) When a project proposal
includes foreign iron, steel, and/or manufactured goods not listed by
the Federal Government at 2 CFR 176.140(b)(2), the applicant also may
submit an alternate proposal based on use of equivalent domestic iron,
steel, and/or manufactured goods.
(2) If an alternate proposal is submitted, the applicant shall
submit a separate cost comparison table prepared in accordance with 2
CFR
[[Page 29]]
176.140(c) and (d) for the proposal that is based on the use of any
foreign iron, steel, and/or manufactured goods for which the Federal
Government has not yet determined an exception applies.
(3) If the Federal Government determines that a particular exception
requested in accordance with 2 CFR 176.140(b) does not apply, the
Federal Government will evaluate only those proposals based on use of
the equivalent domestic iron, steel, and/or manufactured goods, and the
applicant shall be required to furnish such domestic items.
Sec. 176.160 Award term--Required Use of American Iron, Steel, and
Manufactured Goods (covered under International Agreements)--Section 1605
of the American Recovery and Reinvestment Act of 2009.
When awarding Recovery Act funds for construction, alteration,
maintenance, or repair of a public building or public work that involves
iron, steel, and/or manufactured goods materials covered under
international agreements, the agency shall use the award term described
in the following paragraphs:
(a) Definitions. As used in this award term and condition--
Designated country--(1) A World Trade Organization Government
Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria,
Canada, Chinese Taipei (Taiwan), Cyprus, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway,
Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain,
Sweden, Switzerland, and United Kingdom;
(2) A Free Trade Agreement (FTA) country (Australia, Bahrain,
Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Israel, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
(3) A United States-European Communities Exchange of Letters (May
15, 1995) country: Austria, Belgium, Bulgaria, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland,
Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland,
Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and United
Kingdom; or
(4) An Agreement between Canada and the United States of America on
Government Procurement country (Canada).
Designated country iron, steel, and/or manufactured goods--(1) Is
wholly the growth, product, or manufacture of a designated country; or
(2) In the case of a manufactured good that consist in whole or in
part of materials from another country, has been substantially
transformed in a designated country into a new and different
manufactured good distinct from the materials from which it was
transformed.
Domestic iron, steel, and/or manufactured good--(1) Is wholly the
growth, product, or manufacture of the United States; or
(2) In the case of a manufactured good that consists in whole or in
part of materials from another country, has been substantially
transformed in the United States into a new and different manufactured
good distinct from the materials from which it was transformed. There is
no requirement with regard to the origin of components or subcomponents
in manufactured goods or products, as long as the manufacture of the
goods occurs in the United States.
Foreign iron, steel, and/or manufactured good means iron, steel and/
or manufactured good that is not domestic or designated country iron,
steel, and/or manufactured good.
Manufactured good means a good brought to the construction site for
incorporation into the building or work that has been--
(1) Processed into a specific form and shape; or
(2) Combined with other raw material to create a material that has
different properties than the properties of the individual raw
materials.
Public building and public work means a public building of, and a
public work of, a governmental entity (the United States; the District
of Columbia; commonwealths, territories, and minor outlying islands of
the United States; State and local governments; and
[[Page 30]]
multi-State, regional, or interstate entities which have governmental
functions). These buildings and works may include, without limitation,
bridges, dams, plants, highways, parkways, streets, subways, tunnels,
sewers, mains, power lines, pumping stations, heavy generators,
railways, airports, terminals, docks, piers, wharves, ways, lighthouses,
buoys, jetties, breakwaters, levees, and canals, and the construction,
alteration, maintenance, or repair of such buildings and works.
Steel means an alloy that includes at least 50 percent iron, between
.02 and 2 percent carbon, and may include other elements.
(b) Iron, steel, and manufactured goods. (1) The award term and
condition described in this section implements--
(i) Section 1605(a) of the American Recovery and Reinvestment Act of
2009 (Pub. L. 111-5) (Recovery Act), by requiring that all iron, steel,
and manufactured goods used in the project are produced in the United
States; and
(ii) Section 1605(d), which requires application of the Buy American
requirement in a manner consistent with U.S. obligations under
international agreements. The restrictions of section 1605 of the
Recovery Act do not apply to designated country iron, steel, and/or
manufactured goods. The Buy American requirement in section 1605 shall
not be applied where the iron, steel or manufactured goods used in the
project are from a Party to an international agreement that obligates
the recipient to treat the goods and services of that Party the same as
domestic goods and services. As of January 1, 2010, this obligation
shall only apply to projects with an estimated value of $7,804,000 or
more.
(2) The recipient shall use only domestic or designated country
iron, steel, and manufactured goods in performing the work funded in
whole or part with this award, except as provided in paragraphs (b)(3)
and (b)(4) of this section.
(3) The requirement in paragraph (b)(2) of this section does not
apply to the iron, steel, and manufactured goods listed by the Federal
Government as follows:
________________________________________________________________________
[Award official to list applicable excepted materials or indicate
``none'']
(4) The award official may add other iron, steel, and manufactured
goods to the list in paragraph (b)(3) of this section if the Federal
Government determines that--
(i) The cost of domestic iron, steel, and/or manufactured goods
would be unreasonable. The cost of domestic iron, steel, and/or
manufactured goods used in the project is unreasonable when the
cumulative cost of such material will increase the overall cost of the
project by more than 25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or
manufactured in the United States in sufficient and reasonably available
commercial quantities of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the
Recovery Act would be inconsistent with the public interest.
(c) Request for determination of inapplicability of section 1605 of
the Recovery Act or the Buy American Act. (1)(i) Any recipient request
to use foreign iron, steel, and/or manufactured goods in accordance with
paragraph (b)(4) of this section shall include adequate information for
Federal Government evaluation of the request, including--
(A) A description of the foreign and domestic iron, steel, and/or
manufactured goods;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron,
steel, and/or manufactured goods cited in accordance with paragraph
(b)(4) of this section.
(ii) A request based on unreasonable cost shall include a reasonable
survey of the market and a completed cost comparison table in the format
in paragraph (d) of this section.
(iii) The cost of iron, steel, or manufactured goods shall include
all delivery costs to the construction site and any applicable duty.
[[Page 31]]
(iv) Any recipient request for a determination submitted after
Recovery Act funds have been obligated for a project for construction,
alteration, maintenance, or repair shall explain why the recipient could
not reasonably foresee the need for such determination and could not
have requested the determination before the funds were obligated. If the
recipient does not submit a satisfactory explanation, the award official
need not make a determination.
(2) If the Federal Government determines after funds have been
obligated for a project for construction, alteration, maintenance, or
repair that an exception to section 1605 of the Recovery Act applies,
the award official will amend the award to allow use of the foreign
iron, steel, and/or relevant manufactured goods. When the basis for the
exception is nonavailability or public interest, the amended award shall
reflect adjustment of the award amount, redistribution of budgeted
funds, and/or other appropriate actions taken to cover costs associated
with acquiring or using the foreign iron, steel, and/or relevant
manufactured goods.. When the basis for the exception is the
unreasonable cost of the domestic iron, steel, or manufactured goods,
the award official shall adjust the award amount or redistribute
budgeted funds, as appropriate, by at least the differential established
in 2 CFR 176.110(a).
(3) Unless the Federal Government determines that an exception to
section 1605 of the Recovery Act applies, use of foreign iron, steel,
and/or manufactured goods other than designated country iron, steel,
and/or manufactured goods is noncompliant with the applicable Act.
(d) Data. To permit evaluation of requests under paragraph (b) of
this section based on unreasonable cost, the applicant shall include the
following information and any applicable supporting data based on the
survey of suppliers:
Foreign and Domestic Items Cost Comparison
------------------------------------------------------------------------
Unit of Cost
Description measure Quantity (dollars)*
------------------------------------------------------------------------
Item 1:
Foreign steel, iron, or _____ _____ _____
manufactured good........
Domestic steel, iron, or _____ _____ _____
manufactured good........
Item 2:
Foreign steel, iron, or _____ _____ _____
manufactured good........
Domestic steel, iron, or _____ _____ _____
manufactured good........
------------------------------------------------------------------------
[List name, address, telephone number, email address, and contact for
suppliers surveyed. Attach copy of response; if oral, attach summary.]
[Include other applicable supporting information.]
[*Include all delivery costs to the construction site.]
[74 FR 18450, Apr. 23, 2009, as amended at 75 FR 14323, Mar. 25, 2010]
Sec. 176.170 Notice of Required Use of American Iron, Steel, and
Manufactured Goods (covered under International Agreements)--Section 1605
of the American Recovery and Reinvestment Act of 2009.
When requesting applications or proposals for Recovery Act programs
or activities that may involve construction, alteration, maintenance, or
repair of a public building or public work, and involve iron, steel,
and/or manufactured goods covered under international agreements, the
agency shall use the notice described in the following paragraphs in the
solicitation:
(a) Definitions. Designated country iron, steel, and/or manufactured
goods, foreign iron, steel, and/or manufactured good, manufactured good,
public building and public work, and steel, as used in this provision,
are defined in 2 CFR 176.160(a).
(b) Requests for determinations of inapplicability. A prospective
applicant requesting a determination regarding the inapplicability of
section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub.
L. 111-5) (Recovery Act) should submit the request to the
[[Page 32]]
award official in time to allow a determination before submission of
applications or proposals. The prospective applicant shall include the
information and applicable supporting data required by 2 CFR 176.160 (c)
and (d) in the request. If an applicant has not requested a
determination regarding the inapplicability of section 1605 of the
Recovery Act before submitting its application or proposal, or has not
received a response to a previous request, the applicant shall include
the information and supporting data in the application or proposal.
(c) Evaluation of project proposals. If the Federal Government
determines that an exception based on unreasonable cost of domestic
iron, steel, and/or manufactured goods applies, the Federal Government
will evaluate a project requesting exception to the requirements of
section 1605 of the Recovery Act by adding to the estimated total cost
of the project 25 percent of the project cost if foreign iron, steel, or
manufactured goods are used based on unreasonable cost of comparable
domestic iron, steel, or manufactured goods.
(d) Alternate project proposals. (1) When a project proposal
includes foreign iron, steel, and/or manufactured goods, other than
designated country iron, steel, and/or manufactured goods, that are not
listed by the Federal Government in this Buy American notice in the
request for applications or proposals, the applicant may submit an
alternate proposal based on use of equivalent domestic or designated
country iron, steel, and/or manufactured goods.
(2) If an alternate proposal is submitted, the applicant shall
submit a separate cost comparison table prepared in accordance with
paragraphs 2 CFR 176.160(c) and (d) for the proposal that is based on
the use of any foreign iron, steel, and/or manufactured goods for which
the Federal Government has not yet determined an exception applies.
(3) If the Federal Government determines that a particular exception
requested in accordance with 2 CFR 176.160(b) does not apply, the
Federal Government will evaluate only those proposals based on use of
the equivalent domestic or designated country iron, steel, and/or
manufactured goods, and the applicant shall be required to furnish such
domestic or designated country items.
Sec. Appendix to Subpart B of 2 CFR Part 176--U.S. States, Other Sub-
Federal Entities, and Other Entities Subject to U.S. Obligations Under
International Agreements (as of February 16, 2010)
----------------------------------------------------------------------------------------------------------------
Relevant international
States Entities covered Exclusions agreements
----------------------------------------------------------------------------------------------------------------
Arizona.............................. Executive branch ....................... --WTO GPA.
agencies.
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Arkansas............................. Executive branch Construction services.. --WTO GPA.
agencies, including --DR-CAFTA.
universities but --U.S.-Australia FTA.
excluding the Office --U.S.-Chile FTA.
of Fish and Game.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
California........................... Executive branch ....................... --WTO GPA.
agencies.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Colorado............................. Executive branch ....................... --WTO GPA.
agencies.
--DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
[[Page 33]]
Connecticut.......................... --Department of ....................... --WTO GPA.
Administrative --DR-CAFTA.
Services --U.S.-Australia FTA.
--Department of --U.S.-Chile FTA.
Transportation.. --U.S.-Morocco FTA.
--Department of Public --U.S.-Singapore FTA.
Works..
--Constituent Units of
Higher Education.
Delaware............................. --Administrative Construction-grade --WTO GPA.
Services (Central steel (including --DR-CAFTA (except
Procurement Agency). requirements on Honduras).
--State Universities... subcontracts); motor --U.S.-Australia FTA.
--State Colleges....... vehicles; coal. --U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Florida.............................. Executive branch Construction-grade --WTO GPA.
agencies. steel (including --DR-CAFTA.
requirements on --U.S.-Australia FTA.
subcontracts); motor --U.S.-Chile FTA.
vehicles; coal.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Georgia.............................. --Department of Beef; compost; mulch... --U.S.-Australia FTA.
Administrative
Services.
--Georgia Technology
Authority.
Hawaii............................... Department of Software developed in --WTO GPA.
Accounting and General the State; --DR-CAFTA (except
Services. construction. Honduras).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Idaho................................ Central Procurement ....................... --WTO GPA.
Agency (including all --DR-CAFTA (except
colleges and Honduras).
universities subject --U.S.-Australia FTA.
to central purchasing --U.S.-Chile FTA.
oversight).
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Illinois............................. --Department of Central Construction-grade --WTO GPA.
Management Services. steel (including --U.S.-Australia FTA.
requirements on --U.S.-Chile FTA.
subcontracts); motor
vehicles; coal.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
--U.S.-EC.
Exchange of Letters
(applies to EC Member
States for procurement
not covered by WTO GPA
and only where the
State considers out-of-
State suppliers).
Iowa................................. --Department of General Construction-grade --WTO GPA.
Services steel (including --U.S.-Chile FTA.
--Department of requirements on --U.S.-Singapore FTA.
Transportation.. subcontracts); motor
--Board of Regents' vehicles; coal.
Institutions
(universities).
Kansas............................... Executive branch Construction services; --WTO GPA.
agencies. automobiles; aircraft. --U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Kentucky............................. Division of Purchases, Construction projects.. --WTO GPA.
Finance and --DR-CAFTA.
Administration Cabinet. --U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Louisiana............................ Executive branch ....................... --WTO GPA.
agencies.
[[Page 34]]
--DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Maine................................ --Department of Construction-grade --WTO GPA.
Administrative and steel (including --U.S.-Australia FTA.
Financial Services requirements on --U.S.-Chile FTA.
--Bureau of General subcontracts); motor --U.S.-Singapore FTA.
Services (covering vehicles; coal.
State government
agencies and school
construction).
-- Department of
Transportation..
Maryland............................. --Office of the Construction-grade --WTO GPA.
Treasury steel (including --DR-CAFTA.
--Department of the requirements on --U.S.-Australia FTA.
Environment.. subcontracts); motor --U.S.-Chile FTA.
--Department of General vehicles; coal. --U.S.-Morocco FTA.
Services.. --U.S.-Singapore FTA.
--Department of Housing
and Community
Development..
--Department of Human
Resources..
--Department of
Licensing and
Regulation..
--Department of Natural
Resources..
--Department of Public
Safety and
Correctional Services..
--Department of
Personnel..
--Department of
Transportation..
Massachusetts........................ --Executive Office for ....................... --WTO GPA.
Administration and --U.S.-Chile FTA.
Finance.
--Executive Office of --U.S.-Singapore FTA.
Communities and
Development.
--Executive Office of
Consumer Affairs.
--Executive Office of
Economic Affairs.
--Executive Office of
Education.
--Executive Office of
Elder Affairs.
--Executive Office of
Environmental Affairs.
--Executive Office of
Health and Human
Service.
--Executive Office of
Labor.
--Executive Office of
Public Safety.
--Executive Office of
Transportation and
Construction.
Michigan............................. Department of Construction-grade --WTO GPA.
Management and Budget. steel (including --U.S.-Australia FTA.
requirements on --U.S.-Chile FTA.
subcontracts); motor --U.S.-Singapore FTA.
vehicles; coal.
Minnesota............................ Executive branch ....................... --WTO GPA.
agencies.
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Mississippi.......................... Department of Finance Services............... --WTO GPA.
and Administration. --DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Missouri............................. --Office of ....................... --WTO GPA.
Administration.
--Division of --U.S.-Chile FTA.
Purchasing and --U.S.-Singapore FTA.
Materials Management.
Montana.............................. Executive branch Goods.................. --WTO GPA.
agencies.
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
[[Page 35]]
Nebraska............................. Central Procurement ....................... --WTO GPA.
Agency.
--DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
New Hampshire........................ Central Procurement Construction-grade --WTO GPA.
Agency. steel (including --DR-CAFTA.
requirements on --U.S.-Australia FTA.
subcontracts), motor --U.S.-Chile FTA.
vehicles; coal. --U.S.-Morocco FTA.
--U.S.-Singapore FTA.
New York............................. --State agencies Construction-grade --WTO GPA.
--State university steel (including --DR-CAFTA.
system.. requirements on --U.S.-Australia FTA.
--Public authorities subcontracts); motor --U.S.-Chile FTA.
and public benefit vehicles; coal; --U.S.-Morocco FTA.
corporations, with the transit cars, buses --U.S.-Peru TPA.
exception of those and related equipment. --U.S.-Singapore FTA.
entities with multi-
State mandates..
North Dakota......................... ....................... ....................... --U.S.-EC Exchange of
Letters (applies to EC
Member States and only
where the State
considers out-of-State
suppliers).
Oklahoma............................. Department of Central Construction services; --WTO GPA.
Services and all State construction-grade --U.S.-Australia FTA.
agencies and steel (including --U.S.-Chile FTA.
departments subject to requirements on --U.S.-Peru TPA.
the Oklahoma Central subcontracts); motor --U.S.-Singapore FTA.
Purchasing Act. vehicles; coal.
Oregon............................... Department of ....................... --WTO GPA.
Administrative --DR-CAFTA (except
Services. Honduras).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Pennsylvania......................... Executive branch Construction-grade --WTO GPA.
agencies, including: steel (including --U.S.-Australia FTA.
--Governor's Office.... requirements on --U.S.-Chile FTA.
--Department of the subcontracts); motor --U.S.-Singapore FTA.
Auditor General.. vehicles; coal.
--Treasury Department..
--Department of
Agriculture..
--Department of Banking
--Pennsylvania
Securities Commission.
--Department of Health.
--Department of
Transportation.
--Insurance Department.
--Department of Aging..
--Department of
Correction.
--Department of Labor
and Industry.
--Department of
Military Affairs.
--Office of Attorney
General.
--Department of General
Services.
--Department of
Education.
--Public Utility
Commission.
--Department of Revenue
--Department of State..
--Pennsylvania State
Police.
--Department of Public
Welfare.
--Fish Commission......
--Game Commission......
--Department of
Commerce.
--Board of Probation
and Parole.
--Liquor Control Board.
--Milk Marketing Board.
[[Page 36]]
--Lieutenant Governor's
Office.
--Department of
Community Affairs.
--Pennsylvania
Historical and Museum
Commission.
--Pennsylvania
Emergency Management
Agency.
--State Civil Service
Commission.
--Pennsylvania Public
Television Network.
--Department of
Environmental
Resources.
--State Tax
Equalization Board.
--Department of Public
Welfare.
--State Employees'
Retirement System.
--Pennsylvania
Municipal Retirement
Board.
--Public School
Employees' Retirement
System.
--Pennsylvania Crime
Commission.
--Executive Offices....
Rhode Island......................... Executive branch Boats, automobiles, --WTO GPA.
agencies. buses and related --DR-CAFTA (except
equipment. Honduras).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
South Dakota......................... Central Procuring Beef................... --WTO GPA.
Agency (including --DR-CAFTA.
universities and penal --U.S.-Australia FTA.
institutions).
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Tennessee............................ Executive branch Services; construction. --WTO GPA-U.S.-
agencies. Australia FTA.
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Texas................................ Texas Building and ....................... --WTO GPA.
Procurement Commission. --DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Utah................................. Executive branch ....................... --WTO GPA.
agencies. --DR-CAFTA (except
Honduras).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Vermont.............................. Executive branch ....................... --WTO GPA.
agencies. --DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Washington........................... Executive branch Fuel; paper products; --WTO GPA.
agencies, including: boats; ships; and --DR-CAFTA.
--General vessels. --U.S.-Australia FTA.
Administration.. --U.S.-Chile FTA.
--Department of --U.S.-Morocco FTA.
Transportation.. --U.S.-Singapore FTA.
--State Universities...
[[Page 37]]
West Virginia........................ ....................... ....................... --U.S.-EC Exchange of
Letters (applies to EC
Member States and only
where the State
considers out-of-State
suppliers).
Wisconsin............................ Executive branch ....................... --WTO GPA.
agencies, including: --U.S.-Chile FTA.
--Department of --U.S.-Singapore FTA.
Administration..
--State Correctional
Institutions..
--Department of
Development..
--Educational
Communications Board..
--Department of
Employment Relations..
--State Historical
Society..
--Department of Health
and Social Services..
--Insurance
Commissioner..
--Department of
Justice..
--Lottery Board........
--Department of Natural
Resources..
--Administration for
Public Instruction..
--Racing Board.........
--Department of
Revenue..
--State Fair Park
Board..
--Department of
Transportation..
--State University
System..
Wyoming.............................. --Procurement Services Construction-grade --WTO GPA.
Division steel (including --DR-CAFTA.
--Wyoming Department of requirements on --U.S.-Australia FTA.
Transportation.. subcontracts); motor --U.S.-Chile FTA.
--University of vehicles; coal. --U.S.-Morocco FTA.
Wyoming.. --U.S.-Singapore FTA.
----------------------------------------------------------------------------------------------------------------
Other sub-federal entities Entities covered Exclusions Relevant international
agreements
----------------------------------------------------------------------------------------------------------------
Puerto Rico.......................... --Department of State Construction services.. --DR-CAFTA.
--Department of --U.S.-Peru TPA.
Justice..
--Department of the --Department of
Treasury. Economic Development
....................... and Commerce.
--Department of Labor
and Human Resources.
--Department of Natural
and Environmental
Resources.
--Department of
Consumer Affairs.
--Department of Sports
and Recreation.
Port Authority of New York and New ....................... Restrictions attached --WTO GPA (except
Jersey. to Federal funds for Canada).
airport projects; --U.S.-Chile FTA.
maintenance, repair --U.S.-Singapore FTA.
and operating
materials and supplies.
Port of Baltimore.................... ....................... Restrictions attached --WTO GPA (except
to Federal funds for Canada).
airport projects. --U.S.-Chile FTA.
--U.S.-Singapore FTA.
New York Power Authority............. ....................... Restrictions attached --WTO GPA (except
to Federal funds for Canada).
airport projects; --U.S.-Chile FTA.
conditions specified --U.S.-Singapore FTA.
for the State of New
York
[[Page 38]]
Massachusetts Port Authority......... ....................... ....................... U.S.-EC Exchange of
Letters (applies to EC
Member States and only
where the Port
Authority considers
out-of-State
suppliers).
Boston, Chicago, Dallas, Detroit, ....................... ....................... U.S.-EC Exchange of
Indianapolis, Nashville, and San Letters (only applies
Antonio. to EC Member States
and where the city
considers out-of-city
suppliers).
----------------------------------------------------------------------------------------------------------------
Other entities Entities covered Exclusions Relevant international
agreements
----------------------------------------------------------------------------------------------------------------
Rural Utilities Service (waiver of Any recipient.......... ....................... --WTO GPA.
Buy American restriction on --DR-CAFTA.
financing for all power generation --NAFTA.
projects). --U.S.-Australia FTA.
--U.S.-Bahrain FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Oman FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Rural Utilities Service (waiver of Any recipient.......... ....................... --NAFTA.
Buy American restriction on --U.S.-Israel FTA.
financing for telecommunications
projects).
U.S. Department of Agriculture, Rural Any recipient.......... ....................... U.S.-Canada Agreement.
Utilities Services, Water and Waste
Disposal Programs (exclusion of
Canadian iron, steel and
manufactured products from domestic
purchasing restriction in Section
1605 of American Recovery and
Reinvestment Act of 2009).
U.S. Department of Agriculture, Rural Any recipient.......... ....................... U.S.-Canada Agreement.
Housing Service, Community
Facilities Program (exclusion of
Canadian iron, steel and
manufactured products from domestic
purchasing restriction in Section
1605 of American Recovery and
Reinvestment Act of 2009).
U.S. Department of Energy, Office of Any recipient.......... ....................... U.S.-Canada Agreement.
Energy Efficiency and Renewable
Energy, Energy Efficiency and
Conservation Block Grants (exclusion
of Canadian iron, steel and
manufactured products from domestic
purchasing restriction in Section
1605 of American Recovery and
Reinvestment Act of 2009).
U.S. Department of Energy, Office of Any recipient.......... ....................... U.S.-Canada Agreement.
Energy Efficiency and Renewable
Energy, State Energy Program
(exclusion of Canadian iron, steel
and manufactured products from
domestic purchasing restriction in
Section 1605 of American Recovery
and Reinvestment Act of 2009 (ARRA).
[[Page 39]]
U.S. Department of Housing and Urban Any recipient.......... ....................... U.S.-Canada Agreement.
Development, Office of Community
Planning and Development, Community
Development Block Grants Recovery
(CDBG-R) (exclusion of Canadian
iron, steel and manufactured
products from domestic purchasing
restriction in Section 1605 of
American Recovery and Reinvestment
Act of 2009).
U.S. Department of Housing and Urban Any recipient.......... ....................... U.S.-Canada Agreement.
Development, Office of Public and
Indian Housing, Public Housing
Capital Fund (exclusion of Canadian
iron, steel and manufactured
products from domestic purchasing
restriction in Section 1605 of
American Recovery and Reinvestment
Act of 2009).
U.S. Environmental Protection Clean Any recipient.......... ....................... U.S.-Canada Agreement.
Water and Drinking Water State
Revolving Funds Agency for projects
funded by reallocated ARRA funds
where the contracts are signed after
February 17, 2010 (exclusion of
Canadian iron, steel and
manufactured products from domestic
purchasing restriction in Section
1605 of American Recovery and
Reinvestment Act of 2009).
----------------------------------------------------------------------------------------------------------------
General Exceptions: The following restrictions and exceptions are
excluded from U.S. obligations under international agreements:
1. The restrictions attached to Federal funds to States for mass
transit and highway projects.
2. Dredging.
The World Trade Organization Government Procurement Agreement (WTO
GPA) Parties: Aruba, Austria, Belgium, Bulgaria, Canada, Chinese Taipei
(Taiwan), Cyprus, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy,
Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania,
Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and
United Kingdom.
The Free Trade Agreements and the respective Parties to the
agreements are:
(1) Dominican Republic-Central America-United States Free Trade
Agreement (DR-CAFTA): Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, and Nicaragua;
(2) North American Free Trade Agreement (NAFTA): Canada and Mexico;
(3) United States-Australia Free Trade Agreement (U.S.-Australia
FTA);
(4) United States-Bahrain Free Trade Agreement (U.S.-Bahrain FTA);
(5) United States-Chile Free Trade Agreement (U.S.-Chile FTA);
(6) United States-Israel Free Trade Agreement (U.S.-Israel FTA);
(7) United States-Morocco Free Trade Agreement (U.S.-Morocco FTA);
(8) United States-Oman Free Trade Agreement (U.S.-Oman FTA);
(9) United States-Peru Trade Promotion Agreement (U.S.-Peru TPA);
and
(10) United States-Singapore Free Trade Agreement (U.S.-Singapore
FTA).
United States-European Communities Exchange of Letters (May 30,
1995) (U.S.-EC Exchange of Letters) applies to EC Member States:
Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia,
Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania,
Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom.
Agreement between the Government of Canada and the Government of the
United States of
[[Page 40]]
America on Government Procurement (Feb. 10, 2010) (U.S.-Canada
Agreement): Applies only to Canada.
[75 FR 14324, Mar. 25, 2010]
Subpart C_Wage Rate Requirements Under Section 1606 of the American
Recovery and Reinvestment Act of 2009
Sec. 176.180 Procedure.
The award official shall insert the standard award term in this
subpart in all awards funded in whole or in part with Recovery Act
funds.
Sec. 176.190 Award term--Wage rate requirements under Section 1606
of the Recovery Act.
When issuing announcements or requesting applications for Recovery
Act programs or activities that may involve construction, alteration,
maintenance, or repair the agency shall use the award term described in
the following paragraphs:
(a) Section 1606 of the Recovery Act requires that all laborers and
mechanics employed by contractors and subcontractors on projects funded
directly by or assisted in whole or in part by and through the Federal
Government pursuant to the Recovery Act shall be paid wages at rates not
less than those prevailing on projects of a character similar in the
locality as determined by the Secretary of Labor in accordance with
subchapter IV of chapter 31 of title 40, United States Code.
Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40
U.S.C. 3145, the Department of Labor has issued regulations at 29 CFR
parts 1, 3, and 5 to implement the Davis-Bacon and related Acts.
Regulations in 29 CFR 5.5 instruct agencies concerning application of
the standard Davis-Bacon contract clauses set forth in that section.
Federal agencies providing grants, cooperative agreements, and loans
under the Recovery Act shall ensure that the standard Davis-Bacon
contract clauses found in 29 CFR 5.5(a) are incorporated in any
resultant covered contracts that are in excess of $2,000 for
construction, alteration or repair (including painting and decorating).
(b) For additional guidance on the wage rate requirements of section
1606, contact your awarding agency. Recipients of grants, cooperative
agreements and loans should direct their initial inquiries concerning
the application of Davis-Bacon requirements to a particular federally
assisted project to the Federal agency funding the project. The
Secretary of Labor retains final coverage authority under Reorganization
Plan Number 14.
Subpart D_Single Audit Information for Recipients of Recovery Act Funds
Sec. 176.200 Procedure.
The award official shall insert the standard award term in this
subpart in all awards funded in whole or in part with Recovery Act
funds.
Sec. 176.210 Award term--Recovery Act transactions listed in Schedule
of Expenditures of Federal Awards and Recipient Responsibilities for
Informing Subrecipients.
The award term described in this section shall be used by agencies
to clarify recipient responsibilities regarding tracking and documenting
Recovery Act expenditures:
(a) To maximize the transparency and accountability of funds
authorized under the American Recovery and Reinvestment Act of 2009
(Pub. L. 111-5) (Recovery Act) as required by Congress and in accordance
with 2 CFR 215.21 ``Uniform Administrative Requirements for Grants and
Agreements'' and OMB Circular A-102 Common Rules provisions, recipients
agree to maintain records that identify adequately the source and
application of Recovery Act funds. OMB Circular A-102 is available at
http://www.whitehouse.gov /omb/circulars/a102 /a102.html.
(b) For recipients covered by the Single Audit Act Amendments of
1996 and OMB Circular A-133, ``Audits of States, Local Governments, and
Non-Profit Organizations,'' recipients agree to separately identify the
expenditures for Federal awards under the Recovery Act on the Schedule
of Expenditures of Federal Awards (SEFA) and the Data Collection Form
(SF-SAC) required by OMB Circular A-133. OMB Circular A-133 is available
at http://www.whitehouse.gov /omb/circulars/a133 /
[[Page 41]]
a133.html. This shall be accomplished by identifying expenditures for
Federal awards made under the Recovery Act separately on the SEFA, and
as separate rows under Item 9 of Part III on the SF-SAC by CFDA number,
and inclusion of the prefix ``ARRA-'' in identifying the name of the
Federal program on the SEFA and as the first characters in Item 9d of
Part III on the SF-SAC.
(c) Recipients agree to separately identify to each subrecipient,
and document at the time of subaward and at the time of disbursement of
funds, the Federal award number, CFDA number, and amount of Recovery Act
funds. When a recipient awards Recovery Act funds for an existing
program, the information furnished to subrecipients shall distinguish
the subawards of incremental Recovery Act funds from regular subawards
under the existing program.
(d) Recipients agree to require their subrecipients to include on
their SEFA information to specifically identify Recovery Act funding
similar to the requirements for the recipient SEFA described above. This
information is needed to allow the recipient to properly monitor
subrecipient expenditure of ARRA funds as well as oversight by the
Federal awarding agencies, Offices of Inspector General and the
Government Accountability Office.
PARTS 177 179 [RESERVED]
PART 180_OMB GUIDELINES TO AGENCIES ON GOVERNMENT-WIDE DEBARMENT AND
SUSPENSION (NONPROCUREMENT)--Table of Contents
Sec.
180.5 What does this part do?
180.10 How is this part organized?
180.15 To whom does the guidance apply?
180.20 What must a Federal agency do to implement these guidelines?
180.25 What must a Federal agency address in its implementation of the
guidance?
180.30 Where does a Federal agency implement these guidelines?
180.40 How are these guidelines maintained?
180.45 Do these guidelines cover persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart A_General
180.100 How are subparts A through I organized?
180.105 How is this part written?
180.110 Do terms in this part have special meanings?
180.115 What do subparts A through I of this part do?
180.120 Do subparts A through I of this part apply to me?
180.125 What is the purpose of the nonprocurement debarment and
suspension system?
180.130 How does an exclusion restrict a person's involvement in covered
transactions?
180.135 May a Federal agency grant an exception to let an excluded
person participate in a covered transaction?
180.140 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
180.145 Does an exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement
transactions?
180.150 Against whom may a Federal agency take an exclusion action?
180.155 How do I know if a person is excluded?
Subpart B_Covered Transactions
180.200 What is a covered transaction?
180.205 Why is it important if a particular transaction is a covered
transaction?
180.210 Which nonprocurement transactions are covered transactions?
180.215 Which nonprocurement transactions are not covered transactions?
180.220 Are any procurement contracts included as covered transactions?
180.225 How do I know if a transaction in which I may participate is a
covered transaction?
Subpart C_Responsibilities of Participants Regarding Transactions Doing
Business With Other Persons
180.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
180.305 May I enter into a covered transaction with an excluded or
disqualified person?
180.310 What must I do if a Federal agency excludes a person with whom I
am already doing business in a covered transaction?
180.315 May I use the services of an excluded person as a principal
under a covered transaction?
[[Page 42]]
180.320 Must I verify that principals of my covered transactions are
eligible to participate?
180.325 What happens if I do business with an excluded person in a
covered transaction?
180.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
180.335 What information must I provide before entering into a covered
transaction with a Federal agency?
180.340 If I disclose unfavorable information required under Sec.
180.335, will I be prevented from participating in the
transaction?
180.345 What happens if I fail to disclose information required under
Sec. 180.335?
180.350 What must I do if I learn of information required under Sec.
180.335 after entering into a covered transaction with a
Federal agency?
Disclosing Information--Lower Tier Participants
180.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that
participant?
180.360 What happens if I fail to disclose information required under
Sec. 180.355?
180.365 What must I do if I learn of information required under Sec.
180.355 after entering into a covered transaction with a
higher tier participant?
Subpart D_Responsibilities of Federal Agency Officials Regarding
Transactions
180.400 May I enter into a transaction with an excluded or disqualified
person?
180.405 May I enter into a covered transaction with a participant if a
principal of the transaction is excluded?
180.410 May I approve a participant's use of the services of an excluded
person?
180.415 What must I do if a Federal agency excludes the participant or a
principal after I enter into a covered transaction?
180.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
180.425 When do I check to see if a person is excluded or disqualified?
180.430 How do I check to see if a person is excluded or disqualified?
180.435 What must I require of a primary tier participant?
180.440 What action may I take if a primary tier participant knowingly
does business with an excluded or disqualified person?
180.445 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 180.335?
180.450 What action may I take if a lower tier participant fails to
disclose the information required under Sec. 180.355 to the
next higher tier?
Subpart E_System for Award Management (SAM.gov) Exclusions
180.500 What is the purpose of the System for Award Management (SAM.gov)
Exclusions?
180.505 Who uses SAM.gov Exclusions?
180.510 Who maintains SAM.gov Exclusions?
180.515 What specific information is in SAM.gov Exclusions?
180.520 Who places the information into SAM.gov Exclusions?
180.525 Whom do I ask if I have questions about a person in SAM.gov
Exclusions?
180.530 Where can I find SAM.gov Exclusions?
Subpart F_General Principles Relating to Suspension and Debarment
Actions
180.600 How do suspension and debarment actions start?
180.605 How does suspension differ from debarment?
180.610 What procedures does a Federal agency use in suspension and
debarment actions?
180.615 How does a Federal agency notify a person of a suspension or
debarment action?
180.620 Do Federal agencies coordinate suspension and debarment actions?
180.625 What is the scope of a suspension or debarment?
180.630 May a Federal agency impute the conduct of one person to
another?
180.635 May a Federal agency resolve an administrative action in lieu of
debarment or suspension?
180.640 May a settlement include a voluntary exclusion?
180.645 Do other Federal agencies know if an agency agrees to a
voluntary exclusion?
180.650 May an administrative agreement be the result of a settlement?
180.655 How will other Federal awarding agencies know about an
administrative agreement that is the result of a settlement?
180.660 Will administrative agreement information about me in SAM.gov be
corrected or updated?
Subpart G_Suspension
180.700 When may the suspending official issue a suspension?
180.705 What does the suspending official consider in issuing a
suspension?
180.710 When does a suspension take effect?
[[Page 43]]
180.715 What notice does the suspending official give me if I am
suspended?
180.720 How may I contest a suspension?
180.725 How much time do I have to contest a suspension?
180.730 What information must I provide to the suspending official if I
contest the suspension?
180.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
180.740 Are suspension proceedings formal?
180.745 How is fact-finding conducted?
180.750 What does the suspending official consider in deciding whether
to continue or terminate my suspension?
180.755 When will I know whether the suspension is continued or
terminated?
180.760 How long may my suspension last?
Subpart H_Debarment
180.800 What are the causes for debarment?
180.805 What notice does the debarring official give me if I am proposed
for debarment?
180.810 When does a debarment take effect?
180.815 How may I contest a proposed debarment?
180.820 How much time do I have to contest a proposed debarment?
180.825 What information must I provide to the debarring official if I
contest the proposed debarment?
180.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
180.835 Are debarment proceedings formal?
180.840 How is fact-finding conducted?
180.845 What does the debarring official consider in deciding whether to
debar me?
180.850 What is the standard of proof in a debarment action?
180.855 Who has the burden of proof in a debarment action?
180.860 What factors may influence the debarring official's decision?
180.865 How long may my debarment last?
180.870 When do I know if the debarring official debars me?
180.875 May I ask the debarring official to reconsider a decision to
debar me?
180.880 What factors may influence the debarring official during
reconsideration?
180.885 May the debarring official extend a debarment?
Subpart I_Definitions
180.900 Adequate evidence.
180.905 Affiliate.
180.910 Agent or representative.
180.915 Civil judgment.
180.920 Conviction.
180.925 Debarment.
180.930 Debarring official.
180.935 Disqualified.
180.940 Excluded or exclusion.
180.945 System for Award Management Exclusions (SAM.gov) Exclusions.
180.950 Federal agency.
180.955 Indictment.
180.960 Ineligible or ineligibility.
180.965 Legal proceedings.
180.970 Nonprocurement transaction.
180.975 Notice.
180.980 Participant.
180.985 Person.
180.990 Preponderance of the evidence.
180.995 Principal.
180.1000 Respondent.
180.1005 State.
180.1010 Suspending official.
180.1015 Suspension.
180.1020 Voluntary exclusion or voluntarily excluded.
Appendix A to Part 180--Covered Transactions
Authority: 31 U.S.C. 503; 31 U.S.C. 6102; 31 U.S.C. 6307; Pub. L.
103-355; Pub. L. 109-282; Pub. L. 110-252; Pub. L. 111-84; Pub. L. 113-
101Pub. L. 115-232; Pub. L. 117-40; E.O. 12549; E.O. 12689.
Source: 89 FR 30115, Apr. 22, 2024, unless otherwise noted.
Sec. 180.5 What does this part do?
This part provides guidance for Federal agencies on how to implement
the government-wide debarment and suspension system for nonprocurement
programs and activities.
Sec. 180.10 How is this part organized?
This part is organized into two segments.
(a) Sections 180.5 through 180.45 contain general policy direction
for Federal agencies' use of the standards in subparts A through I.
(b) Subparts A through I contain uniform government-wide standards
that Federal agencies are to use to specify:
(1) The types of transactions that are covered by the nonprocurement
debarment and suspension system;
(2) The effects of an exclusion under that nonprocurement system,
including reciprocal effects with the government-wide debarment and
suspension system for procurement;
(3) The criteria and minimum due process to be used in
nonprocurement debarment and suspension actions; and
(4) Related policies and procedures to ensure the effectiveness of
those actions.
[[Page 44]]
Sec. 180.15 To whom does the guidance apply?
This part provides guidance to Federal agencies. Publication of this
guidance in the Code of Federal Regulations (CFR) does not change its
nature--it is guidance and not regulation. Federal agencies'
implementation of this guidance governs the rights and responsibilities
of other persons affected by the nonprocurement debarment and suspension
system.
Sec. 180.20 What must a Federal agency do to implement these guidelines?
As Section 3 of Executive Order 12549 requires, each Federal agency
with nonprocurement programs and activities covered by subparts A
through I of the guidance must issue regulations consistent with those
subparts.
Sec. 180.25 What must a Federal agency address in its implementation
of the guidance?
Each Federal agency's implementing regulation:
(a) Must establish policies and procedures for that Federal agency's
nonprocurement debarment and suspension programs and activities
consistent with this guidance. When adopted by a Federal agency, the
provisions of the guidance have a regulatory effect on that Federal
agency's programs and activities.
(b) Must address some matters for which these guidelines give each
Federal agency some discretion. Specifically, the regulation must:
(1) Identify either the Federal agency head or the title of the
designated official who is authorized to grant exceptions under Sec.
180.135 to let an excluded person participate in a covered transaction.
(2) State whether the Federal agency includes as covered
transactions an additional tier of contracts awarded under covered
nonprocurement transactions, as permitted under Sec. 180.220(c).
(3) Identify the method(s) a Federal agency official may use when
entering into a covered transaction with a primary tier participant to
communicate to the participant the requirements described in Sec.
180.435. Examples of methods are an award term that requires compliance
as a condition of the award, an assurance of compliance obtained at the
time of application, or a certification.
(4) State whether the Federal agency specifies a particular method
that participants must use to communicate compliance requirements to
lower tier participants, as described in Sec. 180.330(a). If there is a
specified method, the regulation must require Federal agency officials
to communicate that requirement when entering into covered transactions
with primary tier participants.
(c) May also, at the Federal agency's option:
(1) Identify any specific types of transactions the Federal agency
includes as ``nonprocurement transactions'' in addition to the examples
provided in Sec. 180.970.
(2) Identify any types of nonprocurement transactions that the
Federal agency exempts from coverage under these guidelines, as
authorized under Sec. 180.215(g)(2).
(3) Identify specific examples of types of individuals who would be
``principals'' under the Federal agency's nonprocurement programs and
transactions, in addition to the types of individuals described in Sec.
180.995.
(4) Specify the Federal agency's procedures, if any, by which a
respondent may appeal a suspension or debarment decision.
(5) Identify by title the officials designated by the Federal agency
head as debarring officials under Sec. 180.930 or suspending officials
under Sec. 180.1010.
(6) Include a subpart covering disqualifications, as authorized in
Sec. 180.45.
(7) Include any provisions authorized by OMB.
Sec. 180.30 Where does a Federal agency implement these guidelines?
Each Federal agency that participates in the government-wide
nonprocurement debarment and suspension system must issue a regulation
implementing these guidelines within its chapter in subtitle B of this
title.
Sec. 180.40 How are these guidelines maintained?
The Interagency Committee on Debarment and Suspension, established
by section 4 of Executive Order 12549,
[[Page 45]]
recommends to the OMB any needed revisions to the guidelines in this
part. The OMB publishes proposed changes to the guidelines in the
Federal Register for public comment, considers comments with the help of
the Interagency Committee on Debarment and Suspension, and issues the
final guidelines.
Sec. 180.45 Do these guidelines cover persons who are disqualified,
as well as those who are excluded from nonprocurement transactions?
A Federal agency may add a subpart covering disqualifications to its
regulation implementing these guidelines, but the guidelines in subparts
A through I:
(a) Address disqualified persons only to:
(1) Provide for their inclusion in the System for Award Management
(SAM.gov) Exclusions; and
(2) State the responsibilities of Federal agencies and participants
to check for disqualified persons before entering into covered
transactions.
(b) Do not specify the:
(1) Transactions for which a disqualified person is ineligible.
Those transactions vary on a case-by-case basis because they depend on
the language of the specific statute, Executive order, or regulation
that caused the disqualification;
(2) Entities to which a disqualification applies; or
(3) Process that a Federal agency uses to disqualify a person.
Unlike exclusion under subparts A through I of this part,
disqualification is frequently not a discretionary action that a Federal
agency takes and may include special procedures.
Subpart A_General
Sec. 180.100 How are subparts A through I organized?
(a) Each subpart contains information related to a broad topic or
specific audience with special responsibilities, as shown in table 1:
Table 1 to Paragraph (a)
------------------------------------------------------------------------
In subpart . . . You will find provisions related to . . .
------------------------------------------------------------------------
A........................... general information about Subparts A
through I.
B........................... the types of transactions that are covered
by the government-wide nonprocurement
suspension and debarment system.
C........................... the responsibilities of persons who
participate in covered transactions.
D........................... the responsibilities of Federal agency
officials who are authorized to enter
into covered transactions.
E........................... the responsibilities of Federal agencies
for entering information into SAM.gov
Exclusions.
F........................... the general principles governing
suspension, debarment, voluntary
exclusion and settlement.
G........................... suspension actions.
H........................... debarment actions.
I........................... definitions of terms used in this part.
------------------------------------------------------------------------
(b) Table 2 shows which subparts may be of special interest to you,
depending on who you are:
Table 2 to Paragraph (b)
------------------------------------------------------------------------
If you are . . . See Subpart(s) . . .
------------------------------------------------------------------------
(1) a participant or principal in a A, B, C and I.
nonprocurement transaction.
(2) a respondent in a suspension action. A, B, F, G and I.
(3) a respondent in a debarment action.. A, B, F, H and I.
(4) a suspending official............... A, B, E, F, G and I.
(5) a debarring official................ A, B, D, F, H and I.
(6) a Federal agency official authorized A, B, D, E and I.
to enter into a covered transaction.
------------------------------------------------------------------------
[[Page 46]]
Sec. 180.105 How is this part written?
(a) This part uses a ``plain language'' format to make it easier for
the general public and business community. The section headings and text
must be read together, as they are often in the form of questions and
answers.
(b) Pronouns used within this part, such as ``I'' and ``you,''
change from subpart to subpart depending on the audience being
addressed.
(c) The ``Covered Transactions'' diagram in the appendix to this
part shows the levels or ``tiers'' at which a Federal agency may enforce
an exclusion.
Sec. 180.110 Do terms in this part have special meanings?
This part uses terms throughout the text that have special meanings.
Those terms are defined in subpart I. For example, three important terms
are:
(a) Exclusion or excluded, which refers only to discretionary
actions taken by a suspending or debarring official under Executive
Order 12549 and Executive Order 12689 or under the Federal Acquisition
Regulations (48 CFR part 9, subpart 9.4);
(b) Disqualification or disqualified, which refers to prohibitions
under specific statutes, executive orders (other than Executive Order
12549 and Executive Order 12689), or other authorities.
Disqualifications frequently are not subject to the discretion of a
Federal agency official, may have a different scope than exclusions, or
have special conditions that apply to the disqualification; and
(c) Ineligibility or ineligible, which generally refers to a person
who is either excluded or disqualified.
Sec. 180.115 What do subparts A through I of this part do?
Subparts A through I provide for the reciprocal exclusion of persons
who have been excluded under the Federal Acquisition Regulations and
provide for the consolidated listing of all persons who are excluded, or
disqualified by statute, executive order or other legal authority.
Sec. 180.120 Do subparts A through I of this part apply to me?
Portions of subparts A through I (see table at Sec. 180.100(b))
apply to you if you are a:
(a) Person who has been, is, or may reasonably be expected to be, a
participant or principal in a covered transaction;
(b) Respondent (a person against whom a Federal agency has initiated
a debarment for suspension action);
(c) Federal agency debarring or suspending official; or
(d) Federal agency official who is authorized to enter into covered
transactions with non-Federal parties.
Sec. 180.125 What is the purpose of the nonprocurement debarment and
suspension system?
(a) To protect the public interest, the Federal Government ensures
the integrity of Federal programs by conducting business only with
responsible persons.
(b) A Federal agency uses the nonprocurement debarment and
suspension system to exclude persons who are not presently responsible
from Federal programs.
(c) An exclusion is a serious action that a Federal agency may take
only to protect the public interest. A Federal agency may not exclude a
person or commodity for the purposes of punishment.
Sec. 180.130 How does an exclusion restrict a person's involvement in
covered transactions?
With the exceptions stated in Sec. Sec. 180.135, 315, and 420, a
person who is excluded by any Federal agency may not:
(a) Be a participant in a Federal agency transaction that is a
covered transaction; or
(b) Act as a principal of a person participating in one of those
covered transactions.
Sec. 180.135 May a Federal agency grant an exception to let an excluded
person participate in a covered transaction?
(a) A Federal agency head or designee may grant an exception
permitting an
[[Page 47]]
excluded person to participate in a particular covered transaction. If
the Federal agency head or designee grants an exception, the exception
must be in writing and state the reason(s) for deviating from the
government-wide policy in Executive Order 12549.
(b) An exception granted by one Federal agency for an excluded
person does not extend to the covered transactions of another Federal
agency.
Sec. 180.140 Does an exclusion under the nonprocurement system affect
a person's eligibility for Federal procurement contracts?
When a Federal agency excludes a person under Executive Order 12549
or Executive Order 12689 on or after August 25, 1995, the excluded
person is also ineligible for Federal procurement transactions under the
Federal Acquisition Regulations. Therefore, an exclusion under this part
has a reciprocal effect on Federal procurement transactions.
Sec. 180.145 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
When a Federal agency excludes a person under the Federal
Acquisition Regulations (FAR) on or after August 25, 1995, the excluded
person is also ineligible to participate in Federal agencies'
nonprocurement covered transactions. Therefore, an exclusion under the
FAR has a reciprocal effect on Federal nonprocurement transactions.
Sec. 180.150 Against whom may a Federal agency take an exclusion action?
Given a cause that justifies an exclusion under this part, a Federal
agency may exclude any person who has been, is, or may reasonably be
expected to be a participant or principal in a covered transaction.
Sec. 180.155 How do I know if a person is excluded?
Check the System for Award Management (SAM.gov) Exclusions to
determine whether a person is excluded. The General Services
Administration (GSA) maintains SAM.gov Exclusions and makes it
available, as detailed in subpart E. When a Federal agency takes action
to exclude a person under the nonprocurement or procurement debarment
and suspension system, the agency enters the information about the
excluded person into SAM.gov Exclusions.
Subpart B_Covered Transactions
Sec. 180.200 What is a covered transaction?
A covered transaction is a nonprocurement or procurement transaction
subject to this part's prohibitions. It may be a transaction at:
(a) The primary tier, between a Federal agency and a person (see
Appendix to this part); or
(b) A lower tier between a participant in a covered transaction and
another person.
Sec. 180.205 Why is it important if a particular transaction is a
covered transaction?
The importance of whether a transaction is a covered transaction
depends upon who you are.
(a) As a participant in the transaction, you have the
responsibilities laid out in subpart C of this part. Those include
responsibilities to the person or Federal agency at the next higher tier
from whom you received the transaction, if any. They also include
responsibilities if you subsequently enter into other covered
transactions with persons at the next lower tier.
(b) As a Federal official who enters into a primary tier
transaction, you have the responsibilities laid out in subpart D of this
part.
(c) As an excluded person, you may not be a participant or principal
in the transaction unless:
(1) The person who entered into the transaction with you allows you
to continue your involvement in a transaction that predates your
exclusion, as permitted under Sec. 180.310 or Sec. 180.415; or
(2) A Federal agency official obtains an exception from the agency
head or designee to allow you to be involved in the transaction, as
permitted under Sec. 180.135.
[[Page 48]]
Sec. 180.210 Which nonprocurement transactions are covered
transactions?
All nonprocurement transactions, as defined in Sec. 180.970, are
covered transactions unless listed in the exemptions under Sec.
180.215.
Sec. 180.215 Which nonprocurement transactions are not covered
transactions?
The following types of nonprocurement transactions are not covered
transactions:
(a) A direct award to:
(1) A foreign government or foreign governmental entity;
(2) A public international organization;
(3) An entity owned (in whole or in part) or controlled by a foreign
government; or
(4) Any other entity consisting wholly or partially of one or more
foreign governments or foreign governmental entities.
(b) A benefit to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted). For example,
when a person receives social security benefits under the Supplemental
Security Income provisions of the Social Security Act, 42 U.S.C. 1301 et
seq., those benefits are not covered transactions and, therefore, are
not affected if the person is excluded.
(c) Federal employment.
(d) A transaction that a Federal agency needs to respond to a
national or agency recognized emergency or disaster.
(e) A permit, license, certificate, or similar instrument issued as
a means to regulate public health, safety, or the environment, unless a
Federal agency specifically designates it to be a covered transaction.
(f) An incidental benefit that results from ordinary governmental
operations.
(g) Any other transaction if:
(1) The application of an exclusion to the transaction is prohibited
by law; or
(2) A Federal agency's regulation exempts it from coverage under
this part.
(h) Notwithstanding paragraph (a) of this section, covered
transactions must include non-procurement and procurement transactions
involving entities engaged in activity that contributed to or is a
significant factor in a country's non-compliance with its obligations
under arms control, nonproliferation or disarmament agreements, or
commitments with the United States. Federal agencies and primary tier
non-procurement recipients must not award, renew, or extend a non-
procurement transaction or procurement transaction, regardless of amount
or tier, with any entity listed in SAM.gov Exclusions on the basis of
involvement in activities that violate arms control, nonproliferation or
disarmament agreements, or commitments with the United States (see
section 1290 of the National Defense Authorization Act for Fiscal Year
2017). The head of a Federal agency may grant an exception to this
requirement under 2 CFR 180.135 and with the concurrence of the OMB
Director.
Sec. 180.220 Are any procurement contracts included as covered
transactions?
(a) Covered transactions under this part:
(1) Do not include any procurement contracts awarded directly by a
Federal agency; but
(2) Do include some procurement contracts awarded under
nonprocurement covered transactions.
(b) Specifically, a contract for goods or services is a covered
transaction if any of the following applies:
(1) The contract is awarded by a participant in a nonprocurement
transaction covered under Sec. 180.210, and the contract amount is
expected to equal or exceed $25,000.
(2) The contract requires the consent of an official of a Federal
agency. In that case, the contract is always a covered transaction
regardless of the amount or who awarded it. For example, it could be a
subcontract awarded by a contractor at a tier below a nonprocurement
transaction, as shown in the Appendix to this part.
(3) The contract is for Federally required audit services.
(c) A subcontract also is a covered transaction if:
[[Page 49]]
(1) It is awarded by a participant in a procurement transaction
under a nonprocurement transaction of a Federal agency that extends the
coverage of paragraph (b)(1) of this section to additional tiers of
contracts (see the diagram in the Appendix to this part showing that
optional lower tier coverage); and
(2) The value of the subcontract is expected to equal or exceed
$25,000.
Sec. 180.225 How do I know if a transaction in which I may participate
is a covered transaction?
As a participant in a transaction, you will know that it is a
covered transaction because of the Federal agency regulations governing
the transaction. The appropriate Federal agency official or participant
at the next higher tier who enters into the transaction with you will
tell you that you must comply with applicable portions of this part.
Subpart C_Responsibilities of Participants Regarding Transactions Doing
Business With Other Persons
Sec. 180.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
When you enter into a covered transaction with another person at the
next lower tier, you must verify that the person with whom you intend to
do business is not excluded or disqualified. You do this by:
(a) Checking SAM.gov Exclusions; or
(b) Collecting a certification from that person; or
(c) Adding a clause or condition to the covered transaction with
that person.
Sec. 180.305 May I enter into a covered transaction with an excluded
or disqualified person?
(a) As a participant, you may not enter into a covered transaction
with an excluded person unless the Federal agency responsible for the
transaction grants an exception under Sec. 180.135.
(b) You may not enter into any transaction with a person who is
disqualified from that transaction unless you have obtained an exception
under the disqualifying statute, Executive Order, or regulation.
Sec. 180.310 What must I do if a Federal agency excludes a person
with whom I am already doing business in a covered transaction?
(a) As a participant, you may continue covered transactions with an
excluded person if the transactions were in existence when the Federal
agency excluded the person. However, you are not required to continue
the transactions, and you may consider termination. You should decide
whether to terminate and the type of termination action, if any, only
after a thorough review to ensure that the action is proper and
appropriate.
(b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person unless the Federal agency
responsible for the transaction grants an exception under Sec. 180.135.
Sec. 180.315 May I use the services of an excluded person as a
principal under a covered transaction?
(a) As a participant, you may continue to use the services of an
excluded person as a principal under a covered transaction if you were
using that person's services in the transaction before the person was
excluded. However, you are not required to continue using that person's
services as a principal. You should decide whether to discontinue that
person's services only after a thorough review to ensure that the action
is proper and appropriate.
(b) You may not begin to use the services of an excluded person as a
principal under a covered transaction unless the Federal agency
responsible for the transaction grants an exception under Sec. 180.135.
Sec. 180.320 Must I verify that principals of my covered transactions
are eligible to participate?
(a) Yes. As a participant, you are responsible for determining
whether your principals of your covered transactions are excluded or
disqualified from participating in the transaction.
(b) You may decide the method and frequency by which you do so. You
may, but are not required to check SAM.gov Exclusions.
[[Page 50]]
Sec. 180.325 What happens if I do business with an excluded person
in a covered transaction?
As a participant, if you knowingly do business with an excluded
person, the Federal agency responsible for your transaction may disallow
costs, annul or terminate the transaction, issue a stop work order,
debar or suspend you, or take other remedies as appropriate.
Sec. 180.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Before entering into a covered transaction with a participant at the
next lower tier, you must require that participant to:
(a) Comply with this subpart as a condition of participating in the
transaction. You may do so using any method(s) unless the regulation of
the Federal agency responsible for the transaction requires you to use
specific methods.
(b) Pass the requirement to comply with this subpart to each person
the participant enters into a covered transaction at the next lower
tier.
Disclosing Information--Primary Tier Participants
Sec. 180.335 What information must I provide before entering into a
covered transaction with a Federal agency?
Before you enter into a covered transaction at the primary tier,
you, as the participant, must notify the Federal agency office that is
entering into the transaction with you if you know that you or any of
the principals for that covered transaction:
(a) Are presently excluded or disqualified;
(b) Have been convicted within the preceding three years of any of
the offenses listed in Sec. 180.800(a) or had a civil judgment rendered
against you for one of those offenses within that time period;
(c) Are presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State, or local) with the
commission of any of the offenses listed in Sec. 180.800(a); or
(d) Have had one or more public transactions (Federal, State, or
local) terminated within the preceding three years for cause or default.
Sec. 180.340 If I disclose unfavorable information required under
Sec. 180.335, will I be prevented from participating in the transaction?
As a primary tier participant, disclosing unfavorable information
about yourself or a principal under Sec. 180.335 will not necessarily
cause a Federal agency to deny your participation in the covered
transaction. The Federal agency will consider the information when
determining whether to enter into the covered transaction. The Federal
agency will also consider any additional information or explanation you
elect to submit with the disclosed information.
Sec. 180.345 What happens if I fail to disclose information required
under Sec. 180.335?
If a Federal agency later determines that you failed to disclose
information under Sec. 180.335 that you knew at the time you entered
into the covered transaction, the Federal agency may:
(a) Terminate the transaction for material failure to comply with
the terms and conditions of the transaction; or
(b) Pursue any other available remedies, including suspension and
debarment.
Sec. 180.350 What must I do if I learn of information required under
Sec. 180.335 after entering into a covered transaction with a Federal
agency?
At any time after you enter into a covered transaction, you must
give immediate written notice to the Federal agency office with which
you entered into the transaction if you learn either that:
(a) You failed to disclose information earlier, as required by Sec.
180.335; or
(b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. 180.335.
[[Page 51]]
Disclosing Information--Lower Tier Participants
Sec. 180.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that participant?
Before you enter into a covered transaction with a person at the
next higher tier, you, as a lower tier participant, must notify that
person if you know that you or any of the principals are presently
excluded or disqualified.
Sec. 180.360 What happens if I fail to disclose information required
under Sec. 180.355?
When a Federal agency later determines that you failed to tell the
person at the higher tier that you were excluded or disqualified at the
time you entered into the covered transaction with that person, the
agency may pursue any available remedies, including suspension and
debarment.
Sec. 180.365 What must I do if I learn of information required under
Sec. 180.355 after entering into a covered transaction with a higher
tier participant?
At any time after you enter into a lower tier covered transaction
with a person at a higher tier, you must provide immediate written
notice to that person if you learn either that:
(a) You failed to disclose information earlier, as required by Sec.
180.355; or
(b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. 180.355.
Subpart D_Responsibilities of Federal Agency Officials Regarding
Transactions
Sec. 180.400 May I enter into a transaction with an excluded or
disqualified person?
(a) As a Federal agency official, you may not enter into a covered
transaction with an excluded person unless you obtain an exception under
Sec. 180.135.
(b) You may not enter into any transaction with a person
disqualified from that transaction unless you obtain a waiver or
exception under the statute, Executive Order, or regulation that is the
basis for the person's disqualification.
Sec. 180.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
As a Federal agency official, you may not enter into a covered
transaction with a participant if you know that a principal of the
transaction is excluded unless you obtain an exception under Sec.
180.135.
Sec. 180.410 May I approve a participant's use of the services of
an excluded person?
After entering into a covered transaction with a participant, you,
as a Federal agency official, may not approve a participant's use of an
excluded person as a principal under that transaction unless you obtain
an exception under Sec. 180.135.
Sec. 180.415 What must I do if a Federal agency excludes the participant
or a principal after I enter into a covered transaction?
(a) As a Federal agency official, you may continue covered
transactions with an excluded person or under which an excluded person
is a principal if the transactions were in existence when the person was
excluded. However, you are not required to continue the transactions,
and you may consider termination. You should decide whether to terminate
and the type of termination action, if any, only after a thorough review
to ensure that the action is proper and appropriate.
(b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person or under which an
excluded person is a principal unless you obtain an exception under
Sec. 180.135.
Sec. 180.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
If a transaction at a lower tier is subject to your approval, you,
as a Federal agency official, may not approve:
(a) A covered transaction with a person who is currently excluded
unless you obtain an exception under Sec. 180.135; or
[[Page 52]]
(b) A transaction with a person who is disqualified from that
transaction unless you obtain a waiver or exception under the statute,
Executive Order, or regulation that is the basis for the person's
disqualification.
Sec. 180.425 When do I check to see if a person is excluded or
disqualified?
As a Federal agency official, you must check to see if a person is
excluded or disqualified before you:
(a) Enter into a primary tier covered transaction;
(b) Approve a principal in a primary tier covered transaction;
(c) Approve a lower tier participant if your Federal agency's
approval of the lower tier participant is required; or
(d) Approve a principal in connection with a lower tier transaction
if your Federal agency's approval of the principal is required.
Sec. 180.430 How do I check to see if a person is excluded or
disqualified?
You check to see if a person is excluded or disqualified in two
ways:
(a) As a Federal agency official, you must check SAM.gov Exclusions
when you take any action listed in Sec. 180.425.
(b) You must review the information that a participant gives you, as
required by Sec. 180.335, about its status or the status of the
principals of a transaction.
Sec. 180.435 What must I require of a primary tier participant?
As a Federal agency official, you must require each participant in a
primary tier covered transaction to:
(a) Comply with subpart C as a condition of participation in the
transaction; and
(b) Communicate the requirement to comply with subpart C to persons
at the next lower tier with whom the primary tier participant enters
into covered transactions.
Sec. 180.440 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
If a participant knowingly does business with an excluded or
disqualified person, you, as a Federal agency official, may refer the
matter for suspension and debarment consideration. You may also disallow
costs, annul or terminate the transaction, issue a stop work order, or
take any other appropriate remedy.
Sec. 180.445 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 180.335?
As a Federal agency official, if you determine that a participant
failed to disclose information, as required by Sec. 180.335, at the
time it entered into a covered transaction with you, you may:
(a) Terminate the transaction for material failure to comply with
the terms and conditions of the transaction; or
(b) Pursue any other available remedies, including suspension and
debarment.
Sec. 180.450 What action may I take if a lower tier participant fails
to disclose the information required under Sec. 180.355 to the next higher tier?
As a Federal agency official, if you determine that a lower tier
participant failed to disclose information, as required by Sec.
180.355, at the time it entered into a covered transaction with a
participant at the next higher tier, you may pursue any remedies
available to you, including the initiation of a suspension or debarment
action.
Subpart E_System for Award Management (SAM.gov) Exclusions
Sec. 180.500 What is the purpose of the System for Award Management
(SAM.gov) Exclusions?
The SAM.gov Exclusions is a widely available source of the most
current information about persons who are excluded or disqualified from
covered transactions.
Sec. 180.505 Who uses SAM.gov Exclusions?
(a) Federal agency officials use SAM.gov Exclusions to determine
whether to enter into a transaction with a person, as required under
Sec. 180.430.
[[Page 53]]
(b) Participants also may, but are not required to, use SAM.gov
Exclusions to determine if:
(1) Principals of their transactions are excluded or disqualified,
as required under Sec. 180.320; or
(2) Persons with whom they are entering into covered transactions at
the next lower tier are excluded or disqualified.
(c) The SAM.gov Exclusions are available to the general public.
Sec. 180.510 Who maintains SAM.gov Exclusions?
GSA maintains SAM.gov Exclusions. When a Federal agency takes an
action to exclude a person under the nonprocurement or procurement
debarment and suspension system, the agency enters the information about
the excluded person into SAM.gov Exclusions.
Sec. 180.515 What specific information is in SAM.gov Exclusions?
(a) At a minimum, SAM.gov Exclusions indicate:
(1) The full name (where available) and address of each excluded and
disqualified person, in alphabetical order, with cross-references if
more than one name is involved in a single action;
(2) The type of action;
(3) The cause for the action;
(4) The scope of the action;
(5) Any termination date for the action;
(6) The Federal agency and name and telephone number of the agency
point of contact for the action; and
(7) The unique entity identifier approved by the GSA of the excluded
or disqualified person, if available.
(b)(1) The SAM.gov Exclusions includes a field for the Taxpayer
Identification Number (TIN), or the social security number (SSN) for an
individual, of an excluded or disqualified person.
(2) Agencies disclose an individual's SSN to verify an individual's
identity only if permitted under the Privacy Act of 1974 and, if
appropriate, the Computer Matching and Privacy Protection Act of 1988,
as codified in 5 U.S.C. 552(a).
Sec. 180.520 Who places the information into SAM.gov Exclusions?
Federal agency officials who take actions to exclude persons under
this part or officials who are responsible for identifying disqualified
persons must enter the following information about those persons into
SAM.gov Exclusions:
(a) Information required by Sec. 180.515(a);
(b) The Taxpayer Identification Number (TIN) of the excluded or
disqualified person, including the social security number (SSN) for an
individual, if the number is available and may be disclosed under the
law;
(c) Information about an excluded or disqualified person, within
three business days, after:
(1) Taking an exclusion action;
(2) Modifying or rescinding an exclusion action;
(3) Finding that a person is disqualified; or
(4) Finding that there has been a change in the status of a person
who is listed as disqualified.
Sec. 180.525 Whom do I ask if I have questions about a person in
SAM.gov Exclusions?
If you have questions about a listed person in SAM.gov Exclusions,
ask the point of contact for the Federal agency that placed the person's
name into SAM.gov Exclusions. You may find the Federal agency point of
contact from SAM.gov Exclusions.
Sec. 180.530 Where can I find SAM.gov Exclusions?
You may access SAM.gov Exclusions through the internet, currently at
https://www.sam.gov.
Subpart F_General Principles Relating to Suspension and Debarment
Actions
Sec. 180.600 How do suspension and debarment actions start?
When Federal agency officials receive information from any source
concerning a cause for suspension or debarment, they will promptly
report it, and the agency will investigate. The officials refer the
question of whether to
[[Page 54]]
suspend or debar you to their suspending or debarring official for
consideration, if appropriate.
Sec. 180.605 How does suspension differ from debarment?
Suspension differs from debarment in that:
------------------------------------------------------------------------
A suspending official . . . A debarring official . . .
------------------------------------------------------------------------
(a) Imposes suspension as a temporary Imposes debarment for a
status of ineligibility for procurement specified period as a final
and nonprocurement transactions, pending determination that a person
completion of an investigation or legal is not presently
or debarment proceeding. responsible.
(b) Must:
(1) Have adequate evidence that there may
be a cause for debarment of a person; and
(2) Conclude that immediate action is Must conclude, based on a
necessary to protect the Federal interest. preponderance of the
evidence, that the person
has engaged in conduct that
warrants debarment.
(c) Usually imposes the suspension first, Imposes debarment after
and then promptly notifies the suspended giving the respondent
person, giving the person an opportunity notice of the action and an
to contest the suspension and have it opportunity to contest the
lifted. proposed debarment.
------------------------------------------------------------------------
Sec. 180.610 What procedures does a Federal agency use in suspension
and debarment actions?
In deciding whether to suspend or debar you, a Federal agency
handles the actions as informally as practicable, consistent with
principles of fundamental fairness.
(a) For suspension actions, a Federal agency uses the procedures in
this subpart and subpart G.
(b) For debarment actions, a Federal agency uses the procedures in
this subpart and subpart H.
Sec. 180.615 How does a Federal agency notify a person of a suspension
or debarment action?
(a) The suspending or debarring official sends a written notice to
the last known street address, facsimile number, or email address of:
(1) You or your identified counsel; or
(2) Your agent for service of process, or any of your partners,
officers, directors, owners, or joint venturers.
(b) The notice is effective if sent to any of these persons.
Sec. 180.620 Do Federal agencies coordinate suspension and debarment
actions?
Yes, when more than one Federal agency has an interest in a
suspension or debarment, the agencies may consider designating one
Federal agency as the lead agency for making the decision. Agencies are
encouraged to establish methods and procedures for coordinating their
suspension and debarment actions.
Sec. 180.625 What is the scope of a suspension or debarment?
If you are suspended or debarred, the suspension or debarment is
effective as follows:
(a) Your suspension or debarment constitutes suspension or debarment
of all of your divisions and other organizational elements from all
covered transactions unless the suspension or debarment decision is
limited:
(1) By its terms to one or more specifically identified individuals,
divisions, or other organizational elements; or
(2) To specific types of transactions.
(b) Any affiliate of a participant may be included in a suspension
or debarment action if the suspending or debarring official:
(1) Officially names the affiliate in the notice; and
(2) Gives the affiliate an opportunity to contest the action.
Sec. 180.630 May a Federal agency impute the conduct of one person
to another?
For purposes of actions taken under this part, a Federal agency may
impute conduct as follows:
(a) Conduct imputed from an individual to an organization. A Federal
agency may impute the fraudulent, criminal, or other improper conduct of
any officer, director, shareholder, partner, employee, or other
individual associated
[[Page 55]]
with an organization to that organization when the improper conduct
occurred in connection with the individual's performance of duties for
or on behalf of that organization, or with the organization's knowledge,
approval or acquiescence. The organization's acceptance of the benefits
derived from the conduct is evidence of knowledge, approval, or
acquiescence.
(b) Conduct imputed from an organization to an individual or between
individuals. A Federal agency may impute the fraudulent, criminal, or
other improper conduct of any organization to an individual, or from one
individual to another individual, if the individual to whom the improper
conduct is imputed either participated in, had knowledge of, or reason
to know of the improper conduct.
(c) Conduct imputed from one organization to another organization. A
Federal agency may impute the fraudulent, criminal, or other improper
conduct of one organization to another organization when the improper
conduct occurred in connection with a partnership, joint venture, joint
application, association, corporation, company, or similar arrangement
or with the organization's knowledge, approval, or acquiescence, or when
the organization to whom the improper conduct is imputed has the power
to direct, manage, control or influence the activities of the
organization responsible for the improper conduct. Acceptance of the
benefits derived from the conduct is evidence of knowledge, approval, or
acquiescence.
Sec. 180.635 May a Federal agency resolve an administrative action in
lieu of debarment or suspension?
Yes. A Federal agency may resolve an administrative action in lieu
of debarment or suspension by entering into an agreement at any time if
it is in the Federal Government's best interest.
Sec. 180.640 May an agreement to resolve an administrative action
include a voluntary exclusion?
Yes. If a Federal agency enters into an agreement to resolve an
administrative action with you in which you agree to be excluded, it is
called a voluntary exclusion and has a government-wide effect.
Sec. 180.645 Do other Federal agencies know if an agency agrees to
a voluntary exclusion?
(a) Yes. The Federal agency agreeing to the voluntary exclusion
enters information about it into SAM.gov Exclusions.
(b) Also, any agency or person may contact the Federal agency that
agreed to the voluntary exclusion to find out the details of the
voluntary exclusion.
Sec. 180.650 May an administrative agreement be the result of a
settlement?
Yes. A Federal agency may enter into an administrative agreement
with you as part of the settlement of a debarment or suspension action.
Sec. 180.655 How will other Federal awarding agencies know about an
administrative agreement that is the result of a settlement?
The suspending or debarring official who enters into an
administrative agreement with you must report information about the
agreement in SAM.gov within three business days after entering into the
agreement. The suspending and debarring official must use the Contractor
Performance Assessment Reporting System (CPARS) to enter or amend
information in SAM.gov. This information is required by section 872 of
the Duncan Hunter National Defense Authorization Act for Fiscal Year
2009 (41 U.S.C. 2313).
Sec. 180.660 Will administrative agreement information about me in
SAM.gov be corrected or updated?
Yes. The suspending or debarring official who entered information
into SAM.gov about an administrative agreement with you:
(a) Must correct the information within three business days if the
official subsequently learn that any information is erroneous.
(b) Must correct in SAM.gov, within three business days, the ending
date of the period during which the agreement is in effect if the
agreement is amended to extend that period.
(c) Must report any other modification to the administrative
agreement in SAM.gov within three business days.
[[Page 56]]
(d) Is strongly encouraged to amend the information in SAM.gov in a
timely way to incorporate any update that the official obtains and that
could be helpful to Federal agencies who must use the system.
Subpart G_Suspension
Sec. 180.700 When may the suspending official issue a suspension?
Suspension is a serious action. Using the procedures of this subpart
and subpart F of this part, the suspending official may impose
suspension only when that official determines that:
(a) There exists an indictment for, or other adequate evidence to
suspect, an offense listed under Sec. 180.800(a), or
(b) There exists adequate evidence to suspect any other cause for
debarment listed under Sec. 180.800(b) through (d); and
(c) Immediate action is necessary to protect the public interest.
Sec. 180.705 What does the suspending official consider in issuing
a suspension?
(a) In determining the adequacy of the evidence to support the
suspension, the suspending official considers 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.
(b) In making this determination, the suspending official may
examine:
(1) The basic documents, including grants, cooperative agreements,
loan authorizations, contracts, and other relevant documents;
(2) An indictment, criminal information, conviction, civil judgment,
or other official findings by Federal, State, or local bodies that
determine factual or legal matters constitutes adequate evidence for
purposes of suspension actions; and
(3) Other indicators of adequate evidence that may include, but are
not limited to, warrants and their accompanying affidavits.
(c) In deciding whether immediate action is needed to protect the
public interest, the suspending official has wide discretion. For
example, the suspending official may infer the necessity for immediate
action to protect the public 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.
Sec. 180.710 When does a suspension take effect?
A suspension is effective when the suspending official signs the
decision to suspend.
Sec. 180.715 What notice does the suspending official give me if
I am suspended?
After deciding to suspend you, the suspending official promptly
sends you a Notice of Suspension advising you:
(a) That you have been suspended;
(b) That your suspension is based on:
(1) An indictment;
(2) A criminal information;
(3) A conviction;
(4) A civil judgment;
(5) Other adequate evidence that you have committed irregularities
that seriously reflect on the propriety of further Federal Government
dealings with you; or
(6) Conduct of another person that has been imputed to you or your
affiliation with a suspended or debarred person;
(c) Of any other irregularities supporting your suspension in terms
sufficient to put you on notice without disclosing certain evidence in
the Federal Government's pending or contemplated legal proceedings;
(d) Of the cause(s) upon which the suspending official relied under
Sec. 180.700 for imposing suspension;
(e) That your suspension is for a temporary period pending the
completion of an investigation or resulting legal or debarment
proceedings;
(f) Of the applicable provisions of this subpart, subpart F of this
part, and any other Federal agency procedures governing suspension
decision-making; and
(g) Of the government-wide effect of your suspension from
procurement and nonprocurement programs and activities.
[[Page 57]]
Sec. 180.720 How may I contest a suspension?
As a respondent, if you wish to contest a suspension, you or your
representative must provide the suspending official with information in
opposition to the suspension. You may do this orally or in writing.
While oral statements may be a part of the official record, any
information provided orally that you consider important must also be
submitted in writing for the official record.
Sec. 180.725 How much time do I have to contest a suspension?
(a) As a respondent, you or your representative must either send or
make arrangements to appear and present the information and argument to
the suspending official within 30 days after you receive the Notice of
Suspension.
(b) The Federal agency taking the action considers the notice to be
received by you:
(1) When delivered, if the Federal agency mails the notice to the
last known street address, or five days after the agency sends it if the
letter is undeliverable;
(2) When sent, if the Federal agency sends the notice by facsimile
or five days after the agency sends it if the facsimile is
undeliverable; or
(3) When delivered, if the Federal agency sends the notice by email
or five days after the agency sends it if the email is undeliverable.
Sec. 180.730 What information must I provide to the suspending official
if I contest the suspension?
(a) In addition to any information and argument in opposition, as a
respondent, your submission to the suspending official must identify:
(1) Specific facts that contradict the statements contained in the
Notice of Suspension. A general denial is insufficient to raise a
genuine dispute over facts material to the suspension;
(2) All existing, proposed, or prior exclusions under regulations
implementing Executive Order 12549 and all similar actions taken by
Federal, State, or local agencies, including administrative agreements
that affect only those agencies;
(3) 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
(4) All of your affiliates.
(b) Your submission must also identify any of the paragraphs in
Sec. 180.730(a) that do not apply to you.
(c) If you fail to disclose this information or provide false
information, the Federal agency taking the action may seek further
criminal, civil, or administrative action against you, as appropriate.
Sec. 180.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
(a) As a respondent, you will not have an additional opportunity to
challenge the facts if the suspending official determines that:
(1) Your suspension is based upon an indictment, conviction, civil
judgment, or other findings by a Federal, State, or local body for which
an opportunity to contest the facts was provided;
(2) Your presentation in opposition contains only general denials to
the information contained in the Notice of Suspension;
(3) The issues raised in your presentation in opposition to the
suspension are not factual in nature, or are not material to the
suspending official's initial decision to suspend, or the official's
decision whether to continue the suspension; or
(4) On the basis of advice from the Department of Justice, an office
of the United States Attorney, a State attorney general's office, or a
State or local prosecutor's office, that substantial interests of the
government in pending or contemplated legal proceedings based on the
same facts as the suspension would be prejudiced by conducting fact-
finding.
(b) You will have an opportunity to challenge the facts if the
suspending official determines that:
(1) The conditions in paragraph (a) of this section do not exist;
and
(2) Your presentation in opposition raises a genuine dispute over
facts material to the suspension.
(c) If you have an opportunity to challenge disputed material facts
[[Page 58]]
under this section, the suspending official or designee must conduct
additional proceedings to resolve those facts.
Sec. 180.740 Are suspension proceedings formal?
(a) Suspension proceedings are conducted in a fair and informal
manner. The suspending official may use flexible procedures to allow you
to present matters in opposition. In so doing, the suspending official
is not required to follow formal rules of evidence or procedure in
creating an official record upon which the official will base a final
suspension decision.
(b) As a respondent, you or your representative must submit any
documentary evidence you want the suspending official to consider.
Sec. 180.745 How is fact-finding conducted?
(a) If fact-finding is conducted:
(1) You may present witnesses and other evidence and confront any
witness presented; and
(2) The factfinder must prepare written findings of fact for the
record.
(b) A transcribed record of fact-finding proceedings must be made,
unless you, as a respondent, and the Federal agency agree to waive it in
advance. If you want a copy of the transcribed record, you may purchase
it.
Sec. 180.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
(a) The suspending official bases the decision on all information
contained in the official record. The record includes:
(1) All information in support of the suspending official's initial
decision to suspend you;
(2) Any further information and argument presented in support of, or
opposition to, the suspension; and
(3) Any transcribed record of fact-finding proceedings.
(b) The suspending official may refer disputed material facts to
another official for findings of fact. The suspending official may
reject any resulting findings, in whole or in part, only after
specifically determining them to be arbitrary, capricious, or clearly
erroneous.
Sec. 180.755 When will I know whether the suspension is continued or
terminated?
The suspending official must make a written decision whether to
continue, modify, or terminate your suspension within 45 days of closing
the official record. The official record closes upon the suspending
official's receipt of final submissions, information, and findings of
fact, if any. The suspending official may extend that period for good
cause.
Sec. 180.760 How long may my suspension last?
(a) If legal or debarment proceedings are initiated at the time of
or during your suspension, the suspension may continue until the
conclusion of those proceedings. However, a suspension may not exceed 12
months if proceedings are not initiated.
(b) The suspending official may extend the 12-month limit under
paragraph (a) of this section for an additional 6 months if an office of
a U.S. Assistant Attorney General, U.S. Attorney, or other Federal,
State, or local responsible prosecuting official requests an extension
in writing. In no event may a suspension exceed 18 months without
initiating proceedings under paragraph (a) of this section.
(c) The suspending official must notify the appropriate officials
under paragraph (b) of this section of an impending termination of a
suspension at least 30 days before the 12-month period expires to allow
the officials an opportunity to request an extension.
Subpart H_Debarment
Sec. 180.800 What are the causes for debarment?
A Federal agency may debar a person for:
(a) Conviction of or civil judgment for:
(1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a public or private
agreement or transaction;
[[Page 59]]
(2) Violation of Federal or State antitrust statutes, including
those proscribing price fixing between competitors, allocation of
customers between competitors, and bid rigging;
(3) Commission of embezzlement, theft, forgery, bribery,
falsification, or destruction of records, making false statements,
violating Federal criminal tax laws, receiving stolen property, making
false claims, or obstruction of justice; or
(4) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects your
present responsibility;
(b) Violation of the terms of a public agreement or transaction so
serious as to affect the integrity of a Federal agency program, such as:
(1) A willful failure to perform in accordance with the terms of one
or more public agreements or transactions;
(2) A history of failure to perform or of unsatisfactory performance
of one or more public agreements or transactions; or
(3) A willful violation of a statutory or regulatory provision or
requirement applicable to a public agreement or transaction;
(c) Any of the following causes:
(1) A nonprocurement debarment by any Federal agency taken before
October 1, 1988, or a procurement debarment by any Federal agency taken
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;
(2) Knowingly doing business with an ineligible person, except as
permitted under Sec. 180.135;
(3) Failure to pay a single substantial debt, or a number of
outstanding debts (including disallowed costs and overpayments, but not
including sums owed the Federal Government under the Internal Revenue
Code) owed to any Federal agency or instrumentality, provided the debt
is uncontested by the debtor or, if contested, provided that the
debtor's legal and administrative remedies have been exhausted;
(4) Violation of a material provision of a voluntary exclusion
agreement entered into under Sec. 180.640 or of any other agreement
that resolves a debarment or suspension action; or
(5) Violation of the provisions of the Drug-Free Workplace Act of
1988 (41 U.S.C. 701); or
(d) Any other cause that is so serious or compelling in nature that
it affects your present responsibility.
Sec. 180.805 What notice does the debarring official give me if I am
proposed for debarment?
After consideration of the causes in Sec. 180.800, if the debarring
official proposes to debar you, the official sends you a Notice of
Proposed Debarment, pursuant to Sec. 180.615, advising you:
(a) That the debarring official is considering debarring you;
(b) The reasons for proposing to debar you in terms sufficient to
put you on notice of the conduct or transactions upon which the proposed
debarment is based;
(c) The cause(s) under Sec. 180.800 upon which the debarring
official relied for proposing your debarment;
(d) The applicable provisions of this subpart, subpart F of this
part, and any other Federal agency procedures governing debarment; and
(e) The government-wide effect of a debarment from procurement and
nonprocurement programs and activities.
Sec. 180.810 When does a debarment take effect?
Unlike a suspension, a debarment is not effective until the
debarring official issues a decision. The debarring official does not
issue a decision until the respondent has had an opportunity to contest
the proposed debarment.
Sec. 180.815 How may I contest a proposed debarment?
As a respondent, if you wish to contest a proposed debarment, you or
your representative must provide the debarring official with information
in opposition to the proposed debarment. You may do this orally or in
writing. While oral statements may be a part of the official record, any
information provided orally that you consider important must also be
submitted in writing for the official record.
[[Page 60]]
Sec. 180.820 How much time do I have to contest a proposed debarment?
(a) As a respondent, you or your representative must either send or
make arrangements to appear and present the information and argument to
the debarring official within 30 days after you receive the Notice of
Proposed Debarment.
(b) The Federal agency taking the action considers the Notice of
Proposed Debarment to be received by you:
(1) When delivered, if the Federal agency mails the notice to the
last known street address, or five days after the agency sends it if the
letter is undeliverable;
(2) When sent, if the Federal agency sends the notice by facsimile
or five days after the agency sends it if the facsimile is
undeliverable; or
(3) When delivered, if the Federal agency sends the notice by email
or five days after the agency sends it if the email is undeliverable.
Sec. 180.825 What information must I provide to the debarring official
if I contest the proposed debarment?
(a) In addition to any information and argument in opposition, as a
respondent, your submission to the debarring official must identify:
(1) Specific facts that contradict the statements contained in the
Notice of Proposed Debarment. Include any information about any of the
factors listed in Sec. 180.860. A general denial is insufficient to
raise a genuine dispute over facts material to the debarment;
(2) All existing, proposed, or prior exclusions under regulations
implementing Executive Order 12549 and all similar actions taken by
Federal, State, or local agencies, including administrative agreements
that affect only those agencies;
(3) 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
(4) All of your affiliates.
(b) If you fail to disclose this information or provide false
information, the Federal agency taking the action may seek further
criminal, civil, or administrative action against you, as appropriate.
Sec. 180.830 Under what conditions do I get an additional opportunity
to challenge the facts on which the proposed debarment is based?
(a) As a respondent, you will not have an additional opportunity to
challenge the facts if the debarring official determines that:
(1) Your debarment is based upon a conviction or civil judgment;
(2) Your presentation in opposition contains only general denials to
the information contained in the Notice of Proposed Debarment; or
(3) The issues raised in your presentation in opposition to the
proposed debarment are not factual in nature, or are not material to the
debarring official's decision whether to debar.
(b) You will have an additional opportunity to challenge the facts
if the debarring official determines that:
(1) The conditions in paragraph (a) of this section do not exist;
and
(2) Your presentation in opposition raises a genuine dispute over
facts material to the proposed debarment.
(c) If you have an opportunity to challenge disputed material facts
under this section, the debarring official or designee must conduct
additional proceedings to resolve those facts.
Sec. 180.835 Are debarment proceedings formal?
(a) Debarment proceedings are conducted in a fair and informal
manner. The debarring official may use flexible procedures to allow you,
as a respondent, to present matters in opposition. In so doing, the
debarring official is not required to follow formal rules of evidence or
procedure in creating an official record upon which the official will
base the decision on whether to debar.
(b) You or your representative must submit any documentary evidence
you want the debarring official to consider.
Sec. 180.840 How is fact-finding conducted?
(a) If fact-finding is conducted:
(1) You may present witnesses and other evidence and confront any
witness presented; and
(2) The factfinder must prepare written findings of fact for the
record.
[[Page 61]]
(b) A transcribed record of fact-finding proceedings must be made
unless you, as a respondent, and the Federal agency agree to waive it in
advance. If you want a copy of the transcribed record, you may purchase
it.
Sec. 180.845 What does the debarring official consider in deciding
whether to debar me?
(a) The debarring official may debar you for any of the causes in
Sec. 180.800. However, the official need not debar you even if a cause
for debarment exists. The official may consider the seriousness of your
acts or omissions and the mitigating or aggravating factors set forth at
Sec. 180.860.
(b) The debarring official bases the decision on all information
contained in the official record. The record includes:
(1) All information in support of the debarring official's proposed
debarment;
(2) Any further information and argument presented in support of, or
in opposition to, the proposed debarment; and
(3) Any transcribed record of fact-finding proceedings.
(c) The debarring official may refer disputed material facts to
another official for findings of fact. The debarring official may reject
any resultant findings, in whole or in part, only after specifically
determining them to be arbitrary, capricious, or clearly erroneous.
Sec. 180.850 What is the standard of proof in a debarment action?
(a) In any debarment action, the Federal agency must establish the
cause for debarment by a preponderance of the evidence.
(b) If the proposed debarment is based upon a conviction or civil
judgment, the standard of proof is met.
Sec. 180.855 Who has the burden of proof in a debarment action?
(a) The Federal agency has the burden to prove that a cause for
debarment exists.
(b) Once a cause for debarment is established, you as a respondent
have the burden of demonstrating to the satisfaction of the debarring
official that you are presently responsible and that debarment is not
necessary.
Sec. 180.860 What factors may influence the debarring official's
decision?
This section lists the mitigating and aggravating factors that the
debarring official may consider in determining whether to debar you and
the length of your debarment period. The debarring official may consider
other factors if appropriate in light of the circumstances of a
particular case. The existence or nonexistence of any factor, such as
one of those set forth in this section, is not necessarily determinative
of your present responsibility. In making a debarment decision, the
debarring official may consider the following factors:
(a) The actual or potential harm or impact that results or may
result from the wrongdoing.
(b) The frequency of incidents or duration of the wrongdoing.
(c) Whether there is a pattern or prior history of wrongdoing. For
example, if you have been found by another Federal agency or a State
agency to have engaged in wrongdoing similar to that found in the
debarment action, the existence of this fact may be used by the
debarring official in determining that you have a pattern or prior
history of wrongdoing.
(d) Whether you are or have been excluded or disqualified by an
agency of the Federal Government or have 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 part.
(e) Whether you have entered into an administrative agreement with a
Federal agency or a State or local government that is not government-
wide but is based on conduct similar to one or more of the causes for
debarment specified in this part.
(f) Whether and to what extent you planned, initiated, or carried
out the wrongdoing.
(g) Whether you have accepted responsibility for the wrongdoing and
recognize the seriousness of the misconduct that led to the cause for
debarment.
[[Page 62]]
(h) Whether you have paid or agreed to pay all criminal, civil, and
administrative liabilities for the improper activity, including any
investigative or administrative costs incurred by the government, and
have made or agreed to make full restitution.
(i) Whether you have cooperated fully with the government agencies
during the investigation and any court or administrative action. In
determining the extent of cooperation, the debarring official may
consider when the cooperation began and whether you disclosed all
pertinent information known to you.
(j) Whether the wrongdoing was pervasive within your organization.
(k) The kind of positions held by the individuals involved in the
wrongdoing.
(l) Whether your organization took appropriate corrective action or
implemented remedial or protective measures in the form of procedures,
policies, and programs to effectively address the activity cited as a
basis for the debarment.
(m) Whether your principals tolerated the offense.
(n) Whether you brought the activity cited as a basis for the
debarment to the attention of the appropriate government agency in a
timely manner.
(o) Whether you have fully investigated the circumstances
surrounding the cause for debarment and, if so, made the result of the
investigation available to the debarring official.
(p) Whether you had effective standards of conduct and internal
control systems in place at the time the questioned conduct occurred.
(q) Whether you have taken appropriate disciplinary action against
the individuals responsible for the activity which constitutes the cause
for debarment.
(r) Whether you have had adequate time to eliminate the
circumstances within your organization that led to the cause for the
debarment.
(s) Whether your business, technical, or professional license(s) has
been suspended, terminated, or revoked.
(t) Other factors that are appropriate to the circumstances of a
particular case.
Sec. 180.865 How long may my debarment last?
(a) If the debarring official decides to debar you, your period of
debarment will be based on the seriousness of the cause(s) upon which
your debarment is based. Generally, debarment should not exceed three
years. However, if circumstances warrant, the debarring official may
impose a longer period of debarment.
(b) In determining the period of debarment, the debarring official
may consider the factors in Sec. 180.860. If a suspension has preceded
your debarment, the debarring official must consider the time you were
suspended.
(c) If the debarment is for a violation of the provisions of the
Drug-Free Workplace Act of 1988, your period of debarment may not exceed
five years.
Sec. 180.870 When do I know if the debarring official debars me?
(a) The debarring official must make a written decision whether to
debar within 45 days of closing the official record. The official record
closes upon the debarring official's receipt of final submissions,
information, and findings of fact, if any. The debarring official may
extend that period for good cause.
(b) The debarring official sends you written notice, pursuant to
Sec. 180.615, that the official decided either:
(1) Not to debar you; or
(2) To debar you. In this event, the notice:
(i) Refers to the Notice of Proposed Debarment;
(ii) Specifies the reasons for your debarment;
(iii) States the period of your debarment, including the effective
dates; and
(iv) Advises you that your debarment is effective for covered
transactions and contracts that are subject to the Federal Acquisition
Regulations (48 CFR chapter 1) throughout the executive branch of the
Federal Government unless an agency head or an authorized designee
grants an exception.
Sec. 180.875 May I ask the debarring official to reconsider a decision
to debar me?
Yes. As a debarred person, you may ask the debarring official to
reconsider
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the debarment decision or to reduce the time period or scope of the
debarment. However, you must submit your request in writing and support
it with documentation.
Sec. 180.880 What factors may influence the debarring official during
reconsideration?
The debarring official may reduce or terminate your debarment based
on:
(a) Newly discovered material evidence;
(b) A reversal of the conviction or civil judgment upon which your
debarment was based;
(c) A bona fide change in ownership or management;
(d) Elimination of other causes for which the debarment was imposed;
or
(e) Other reasons the debarring official finds appropriate.
Sec. 180.885 May the debarring official extend a debarment?
(a) Yes. The debarring official may extend a debarment for an
additional period if that official determines that an extension is
necessary to protect the public interest.
(b) However, the debarring official may not extend a debarment
solely on the basis of the facts and circumstances upon which the
initial debarment action was based.
(c) If the debarring official decides that a debarment for an
additional period is necessary, the debarring official must follow the
applicable procedures in this subpart, and subpart F, to extend the
debarment.
Subpart I_Definitions
Sec. 180.900 Adequate evidence.
Adequate evidence means information sufficient to support the
reasonable belief that a particular act or omission has occurred.
Sec. 180.905 Affiliate.
Persons are affiliates of each other if, directly or indirectly,
either one controls or has the power to control the other or a third
person controls or has the power to control both. The ways a Federal
agency may determine control include, but are not limited to:
(a) Interlocking management or ownership;
(b) Identity of interests among family members;
(c) Shared facilities and equipment;
(d) Common use of employees; or
(e) A business entity organized following the exclusion of a person
with the same or similar management, ownership, or principal employees
as the excluded person.
Sec. 180.910 Agent or representative.
Agent or representative means any person who acts on behalf of or
who is authorized to commit a participant in a covered transaction.
Sec. 180.915 Civil judgment.
Civil judgment means the disposition of a civil action by any court
of competent jurisdiction, whether by verdict, decision, settlement,
stipulation, or other disposition which 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).
Sec. 180.920 Conviction.
Conviction means:
(a) 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
(b) Any other resolution that is the functional equivalent of a
judgment, 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.
Sec. 180.925 Debarment.
Debarment means an action taken by a debarring official under
subpart H of this part to exclude a person from participating in covered
transactions and transactions covered under the Federal Acquisition
Regulations (48 CFR chapter 1). A person so excluded is debarred.
Sec. 180.930 Debarring official.
Debarring official means a Federal agency official who is authorized
to
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impose debarment. A debarring official is either:
(a) The agency head; or
(b) An official designated by the agency head.
Sec. 180.935 Disqualified.
Disqualified means that a person is prohibited from participating in
specified Federal procurement or nonprocurement transactions as required
under a statute, Executive order (other than Executive Orders 12549 and
12689), or other authority. Examples of disqualifications include
persons prohibited under--
(a) The Davis-Bacon Act (40 U.S.C. 3142);
(b) The equal employment opportunity acts and Executive orders; or
(c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C.
1368), and Executive Order 11738 (38 FR 25161).
Sec. 180.940 Excluded or exclusion.
Excluded or exclusion means:
(a) That a person or commodity is prohibited from being a
participant in covered transactions, whether the person has been
suspended; debarred; proposed for debarment under 48 CFR part 9, subpart
9.4; voluntarily excluded; or
(b) The act of excluding a person.
Sec. 180.945 System for Award Management (SAM.gov) Exclusions.
System for Award Management (SAM.gov) Exclusions means the list
maintained and disseminated by the General Services Administration (GSA)
containing the names and other information about ineligible persons.
Sec. 180.950 Federal agency.
Federal agency means any United States executive department,
military department, defense agency, or any other executive branch
agency. For the purposes of this part, other agencies of the Federal
Government are not considered ``agencies'' unless they issue regulations
adopting the government-wide Debarment and Suspension system under
Executive Orders 12549 and 12689.
Sec. 180.955 Indictment.
Indictment means an indictment for a criminal offense. A
presentment, information, or other filing by a competent authority
charging a criminal offense will be given the same effect as an
indictment.
Sec. 180.960 Ineligible or ineligibility.
Ineligible or ineligibility means that a person or commodity is
prohibited from covered transactions because of an exclusion or
disqualification.
Sec. 180.965 Legal proceedings.
Legal proceeding means any criminal proceeding or any civil judicial
proceeding, including a proceeding under the Program Fraud Civil
Remedies Act of 1986 (31 U.S.C. 3801-3812), to which the Federal
Government or a State or local government or quasi-governmental
authority is a party. The term also includes appeals from those
proceedings.
Sec. 180.970 Nonprocurement transaction.
(a) Nonprocurement transaction means any transaction, regardless of
type (except procurement contracts), including, but not limited to, the
following:
(1) Grants;
(2) Cooperative agreements;
(3) Scholarships;
(4) Fellowships;
(5) Contracts of assistance;
(6) Loans;
(7) Loan guarantees;
(8) Subsidies;
(9) Insurances;
(10) Payments for specified uses; and
(11) Donation agreements.
(b) A nonprocurement transaction at any tier does not require the
transfer of Federal funds.
Sec. 180.975 Notice.
Notice means a written communication served in person, sent by
certified mail or its equivalent, or sent electronically by email or
facsimile. (See Sec. 180.615.)
Sec. 180.980 Participant.
Participant means any person who submits a proposal for or enters
into a covered transaction, including an agent or representative of a
participant.
[[Page 65]]
Sec. 180.985 Person.
Person means any individual, corporation, partnership, association,
unit of government, or legal entity, regardless of how organized.
Sec. 180.990 Preponderance of the evidence.
Preponderance of the evidence means proof by information that,
compared with information opposing it, leads to the conclusion that the
fact at issue is more probably true than not.
Sec. 180.995 Principal.
Principal means:
(a) An officer, director, owner, partner, principal investigator, or
another person within a participant with management or supervisory
responsibilities related to a covered transaction; or
(b) A consultant or other person, whether or not employed by the
participant or paid with Federal funds, who:
(1) Is in a position to handle Federal funds;
(2) Is in a position to influence or control the use of those funds;
or,
(3) Occupies a technical or professional position capable of
substantially influencing the development or outcome of an activity
required to perform the covered transaction.
Sec. 180.1000 Respondent.
Respondent means a person against whom a Federal agency has
initiated a debarment or suspension action.
Sec. 180.1005 State.
(a) State means:
(1) Any of the states of the United States;
(2) The District of Columbia;
(3) The Commonwealth of Puerto Rico;
(4) Any territory or possession of the United States; or
(5) Any agency or instrumentality of a State.
(b) For purposes of this part, State does not include institutions
of higher education, hospitals, or units of local government.
Sec. 180.1010 Suspending official.
(a) Suspending official means a Federal agency official authorized
to impose suspension. The suspending official is either:
(1) The agency head; or
(2) An official designated by the agency head.
Sec. 180.1015 Suspension.
Suspension is an action taken by a suspending official under subpart
G of this part that immediately prohibits a person from participating in
covered transactions and transactions covered under the Federal
Acquisition Regulations (48 CFR chapter 1) for a temporary period,
pending completion of a Federal agency investigation and any judicial or
administrative proceedings that may ensue. A person so excluded is
suspended.
Sec. 180.1020 Voluntary exclusion or voluntarily excluded.
(a) Voluntary exclusion means a person's agreement to be excluded
under the terms of a settlement between the person and one or more
agencies. Voluntary exclusion must have a government-wide effect.
(b) Voluntarily excluded means the status of a person who has agreed
to a voluntary exclusion.
Sec. Appendix A to Part 180--Covered Transactions
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[GRAPHIC] [TIFF OMITTED] TR22AP24.805
PART 181 [RESERVED]
PART 182_GOVERNMENT-WIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE
(FINANCIAL ASSISTANCE)--Table of Contents
Sec.
182.5 What does this part do?
182.10 How is this part organized?
182.15 To whom does the guidance apply?
182.20 What must a Federal agency do to implement the guidance?
182.25 What must a Federal agency address in its implementation of the
guidance?
182.30 Where does a Federal agency implement the guidance?
182.40 How is the guidance maintained?
Subpart A_Purpose and Coverage
182.100 How is this part written?
182.105 Do terms in this part have special meanings?
182.110 What do subparts A through F of this part do?
182.115 Does this part apply to me?
182.120 Are any of my Federal assistance awards exempt from this part?
182.125 Does this part affect the Federal contracts that I receive?
Subpart B_Requirements for Recipients Other Than Individuals
182.200 What must I do to comply with this part?
182.205 What must I include in my drug-free workplace statement?
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182.210 To whom must I distribute my drug-free workplace statement?
182.215 What must I include in my drug-free awareness program?
182.220 By when must I publish my drug-free workplace statement and
establish my drug-free awareness program?
182.225 What actions must I take concerning employees who are convicted
of drug violations in the workplace?
182.230 How and when must I identify workplaces?
Subpart C_Requirements for Recipients Who Are Individuals
182.300 What must I do to comply with this part if I am an individual
recipient?
Subpart D_Responsibilities of Agency Awarding Officials
182.400 What are my responsibilities as an agency awarding official?
Subpart E_Violations of This Part and Consequences
182.500 How are violations of this part determined for recipients other
than individuals?
182.505 How are violations of this part determined for recipients who
are individuals?
182.510 What actions will the Federal Government take against a
recipient determined to have violated this part?
182.515 Are there any exceptions to those actions?
Subpart F_Definitions
182.605 Award.
182.610 Controlled substance.
182.615 Conviction.
182.620 Cooperative agreement.
182.625 Criminal drug statute.
182.630 Debarment.
182.635 Drug-free workplace.
182.640 Employee.
182.645 Federal agency or agency.
182.650 Grant.
182.655 Individual.
182.660 Recipient.
182.665 State.
182.670 Suspension.
Authority: 41 U.S.C. 8101-8106; 31 U.S.C. 503; 31 U.S.C. 6307.
Source: 89 FR 30130, Apr. 22, 2024, unless otherwise noted.
Sec. 182.5 What does this part do?
This part provides guidance for Federal agencies on the portion of
the Drug-Free Workplace Act of 1988 (41 U.S.C. 8101-8106, as amended)
that applies to grants. It also applies the provisions of the Act to
cooperative agreements and other financial assistance awards, as a
matter of Federal Government policy.
Sec. 182.10 How is this part organized?
This part is organized into two segments.
(a) Sections 182.5 through 182.40 contain general policy direction
for Federal agencies' use of the uniform policies and procedures in
subparts A through F.
(b) Subparts A through F contain uniform government-wide policies
and procedures for Federal agency use to specify the:
(1) Types of awards that are covered by drug-free workplace
requirements;
(2) Drug-free workplace requirements with which a recipient must
comply;
(3) Actions required of a Federal agency awarding official; and
(4) Consequences of a violation of drug-free workplace requirements.
Sec. 182.15 To whom does the guidance apply?
This part provides guidance to Federal agencies. Publication of this
guidance in the Code of Federal Regulations (CFR) does not change its
nature--it is guidance and not regulation. Federal agencies'
implementation of this guidance governs the rights and responsibilities
of other persons affected by the drug-free workplace requirements.
Sec. 182.20 What must a Federal agency do to implement the guidance?
To comply with the requirement in 41 U.S.C. 8106 for government-wide
regulations, each Federal agency that awards grants or cooperative
agreements or makes other financial assistance awards that are subject
to the drug-free workplace requirements in subparts A through F of the
guidance must issue a regulation consistent with those subparts.
Sec. 182.25 What must a Federal agency address in its implementation
of the guidance?
Each Federal agency's implementing regulation:
[[Page 68]]
(a) Must establish drug-free workplace policies and procedures for
that Federal agency's Federal awards consistent with this guidance. When
adopted by a Federal agency, the provisions of the guidance have a
regulatory effect on that Federal agency's awards.
(b) Must address some matters for which the guidance in this part
gives the Federal agency discretion. Specifically, the regulation must:
(1) State whether the Federal agency:
(i) Has a central point to which a recipient may send the
notification of a conviction that is required under Sec. 182.225(a) or
Sec. 182.300(b); or
(ii) Requires the recipient to send the notification to the Federal
agency awarding official or their designee for each Federal award.
(2) Either:
(i) State that the Federal agency head is the official authorized to
determine under Sec. 182.500 or Sec. 182.505 that a recipient has
violated the drug-free workplace requirements; or
(ii) Provide the title of the official designated to make that
determination.
(c) May also, at the Federal agency's option, identify any specific
types of financial assistance awards, in addition to grants and
cooperative agreements, to which the Federal agency makes this guidance
applicable.
Sec. 182.30 Where does a Federal agency implement the guidance?
Each Federal agency that awards grants or cooperative agreements or
makes other financial assistance awards that are subject to the drug-
free workplace guidance in this part must issue a regulation
implementing the guidance within its chapter in subtitle B of this title
of the Code of Federal Regulations.
Sec. 182.40 How is the guidance maintained?
The OMB publishes proposed changes to the guidance in the Federal
Register for public comment, considers comments with the help of
appropriate interagency working groups, and then issues any changes to
the guidance in final form.
Subpart A_Purpose and Coverage
Sec. 182.100 How is this part written?
(a) This part uses a ``plain language'' format to make it easier for
the general public and business community to use and understand. The
section headings and text must be read together, as they are often in
the form of questions and answers.
(b) Pronouns used within this part, such as ``I'' and ``you,''
change from subpart to subpart depending on the audience being
addressed.
Sec. 182.105 Do terms in this part have special meanings?
This part uses terms that have special meanings. Those terms are
defined in subpart F.
Sec. 182.110 What do subparts A through F of this part do?
Subparts A through F specify standard policies and procedures to
carry out the Drug-Free Workplace Act of 1988 for financial assistance
awards.
Sec. 182.115 Does this part apply to me?
(a) Portions of this part apply to you if you are either:
(1) A recipient of a Federal assistance award (see definitions of
award and recipient in Sec. Sec. 182.605 and 182.660, respectively); or
(2) A Federal agency awarding official.
(b) The following table shows the subparts that apply to you:
------------------------------------------------------------------------
If you are * * * See subparts * * *
------------------------------------------------------------------------
(1) a recipient who is not an A, B and E.
individual.
(2) a recipient who is an individual. A, C and E.
(3) a Federal agency awarding A, D and E.
official.
------------------------------------------------------------------------
Sec. 182.120 Are any of my Federal assistance awards exempt from
this part?
This part does not apply to any award to which the Federal agency
head, or their designee, determines that the application of this part
would be inconsistent with the international obligations of the United
States or the
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laws or regulations of a foreign government.
Sec. 182.125 Does this part affect the Federal contracts that I
receive?
This part will affect future contract awards indirectly if you are
debarred or suspended for a violation of the requirements of this part,
as described in Sec. 182.510(c). However, this part does not apply
directly to procurement contracts. The portion of the Drug-Free
Workplace Act of 1988 that applies to Federal procurement contracts is
carried out through the Federal Acquisition Regulation in Chapter 1 of
Title 48 of the Code of Federal Regulations (the drug-free workplace
coverage currently is in 48 CFR part 23, subpart 23.5).
Subpart B_Requirements for Recipients Other Than Individuals
Sec. 182.200 What must I do to comply with this part?
There are two general requirements if you are a recipient other than
an individual.
(a) First, you must make a good faith effort, on a continuing basis,
to maintain a drug-free workplace. You must agree to do so as a
condition for receiving any award covered by this part. The specific
measures that you must take in this regard are described in more detail
in subsequent sections of this subpart. Briefly, those measures are to:
(1) Publish a drug-free workplace statement and establish a drug-
free awareness program for your employees (see Sec. Sec. 182.205
through 182.220); and
(2) Take actions concerning employees convicted of violating drug
statutes in the workplace (see Sec. 182.225).
(b) Second, you must identify all known workplaces under your
Federal awards (see Sec. 182.230).
Sec. 182.205 What must I include in my drug-free workplace statement?
You must publish a statement that--
(a) Tells your employees that the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance
is prohibited in your workplace;
(b) Specifies the actions that you will take against employees for
violating that prohibition; and
(c) Lets each employee know that, as a condition of employment under
any award, the employee:
(1) Will abide by the terms of the statement; and
(2) Must notify you in writing if the employee is convicted for a
violation of a criminal drug statute occurring in the workplace and must
do so no more than five calendar days after the conviction.
Sec. 182.210 To whom must I distribute my drug-free workplace statement?
You must require that a copy of the statement described in Sec.
182.205 be given to each employee who will be engaged in the performance
of any Federal award.
Sec. 182.215 What must I include in my drug-free awareness program?
You must establish an ongoing drug-free awareness program to inform
employees about:
(a) The dangers of drug abuse in the workplace;
(b) Your policy of maintaining a drug-free workplace;
(c) Any available drug counseling, rehabilitation, and employee
assistance programs; and
(d) The penalties that you may impose upon them for drug abuse
violations occurring in the workplace.
Sec. 182.220 By when must I publish my drug-free workplace statement
and establish my drug-free awareness program?
If you are a new recipient that does not already have a policy
statement as described in Sec. 182.205 and an ongoing awareness program
as described in Sec. 182.215, you must publish the statement and
establish the program by the time given in the following table:
------------------------------------------------------------------------
If * * * Then you * * *
------------------------------------------------------------------------
(a) The performance period of the award Must have the policy statement
is less than 30 days. and program in place as soon
as possible, but before the
date on which performance is
expected to be completed.
[[Page 70]]
(b) The performance period of the award Must have the policy statement
is 30 days or more. and program in place within 30
days after award.
(c) You believe there are extraordinary May ask the Federal agency
circumstances that will require more awarding official to give you
than 30 days for you to publish the more time to do so. The amount
policy statement and establish the of additional time, if any, to
awareness program. be given is at the discretion
of the Federal agency awarding
official.
------------------------------------------------------------------------
Sec. 182.225 What actions must I take concerning employees who are convicted
of drug violations in the workplace?
There are two actions you must take if an employee is convicted of a
drug violation in the workplace:
(a) First, you must notify Federal agencies if an employee who is
engaged in the performance of an award informs you about a conviction,
as required by Sec. 182.205(c)(2), or you otherwise learn of the
conviction. Your notification to the Federal agencies must:
(1) Be in writing;
(2) Include the employee's position title;
(3) Include the identification number(s) of each affected award;
(4) Be sent within ten calendar days after you learn of the
conviction; and
(5) Be sent to every Federal agency on whose award the convicted
employee was working. It must be sent to every Federal agency awarding
official or their designee, unless the Federal agency has specified a
central point for the receipt of the notices.
(b) Second, within 30 calendar days of learning about an employee's
conviction, you must either:
(1) Take appropriate personnel action against the employee, up to
and including termination, consistent with the requirements of the
Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
(2) Require the employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for these purposes
by a Federal, State, or local health, law enforcement, or another
appropriate agency.