[Federal Register Volume 59, Number 243 (Tuesday, December 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30995]


[[Page Unknown]]

[Federal Register: December 20, 1994]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 9, 22, 28, 44, and 52

[FAR Case 94-801]
RIN 9000-AG22

 

Federal Acquisition Regulation; Debarment, -Suspension, and 
Ineligibility (Ethics)

AGENCIES: Department of Defense (DOD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: This proposed rule is issued pursuant to the Federal 
Acquisition Streamlining Act of 1994, Public Law 103-355 (the Act). The 
Federal Acquisition Regulatory Council is considering amending Federal 
Acquisition Regulation (FAR) Subpart 9.4, Debarment, Suspension, and 
Ineligibility, the clause at 52.209-6, Protecting the Government's 
Interest when Subcontracting with Contractors Debarred, Suspended or 
Proposed for Debarment, and provisions in parts 22, 28, and 44, 
respectively. This includes information required to support the policy 
of ensuring that suspensions, debarments, and other exclusions from 
procurement and nonprocurement activities receive reciprocal 
Government-wide effect as directed by Executive Order (E.O.) 12689, 
dated August 16, 1989, and Section 2455, Uniform Suspension and 
Debarment, of the Act. This regulatory action was subject to Office of 
Management and Budget review under Executive Order 12866, dated 
September 30, 1993.

DATES: Comments should be submitted on or before February 21, 1995 to 
be considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to: 
General Services Administration, FAR Secretariat (VRS),-18th & F 
Streets, NW, Room 4037, Washington, DC 20405.
    Please cite FAR case 94-801 in all correspondence related to this 
case.

FOR FURTHER INFORMATION CONTACT: Mr. Julius Rothlein, Ethics Team 
Leader, at (703) 697-4349 in reference to this FAR case. For general 
information, contact the FAR Secretariat, Room 4037, GS Building, 
Washington, DC 20405 (202) 501-4755. Please cite FAR case 94-801.

SUPPLEMENTARY INFORMATION:

A. Background

    The Federal Acquisition Streamlining Act of 1994, Pub. L. 103-355 
(the Act), provides authorities that streamline the acquisition process 
and minimize burdensome government-unique requirements. Major changes 
that can be expected in the acquisition process as a result of the 
Act's implementation include changes in the areas of Commercial Item 
Acquisition, Simplified Acquisition Procedures, the Truth in 
Negotiations Act, and introduction of the Federal Acquisition Computer 
Network. In order to promptly achieve the benefits of the provisions of 
the Act, the Government is issuing implementing regulations on an 
expedited basis. We believe prompt publication of proposed rules 
provides the public the opportunity to participate more fully in the 
process of developing regulations.
    FAR case 94-801 originated because Section 2455 of Public Law 103-
355 was enacted to remedy the current situation where suspensions, 
debarments and other exclusions from procurement and nonprocurement 
activities do not have reciprocal Government-wide effect. The concept 
of reciprocity for procurement and nonprocurement suspension and 
debarment actions is not new. Since August 1989 there has been an 
effort to do by executive order (i.e., E.O. 12689), what section 2455 
now prescribes by law. That earlier effort was worked on by a committee 
known as the ``Interagency Committee on Debarment and Suspension.'' 
This Interagency Committee is made up of 16 Federal executive agencies 
that impose nonprocurement suspensions and debarments. By October 1994 
the agencies in an ad hoc group reached agreement on the language that 
would implement the concept of reciprocity and be consistent with the 
principles of the National Performance Review. The language proposed 
for FAR 9.401, Applicability, has been coordinated with the ad hoc 
group of agencies. The proposed changes to the procurement and 
nonprocurement rules will implement Section 2455 and E.O. 12689 by 
ensuring that suspensions, debarments, and other exclusions from 
procurement and nonprocurement activities have reciprocal Government-
wide effect.
    The FAR Council is interested in an exchange of ideas and opinions 
with respect to the regulatory implementation of the Act. For that 
reason, the FAR Council is conducting a series of public meetings. 
However, the FAR Council has not scheduled a public meeting on this 
rule (FAR case 94-801) because of the clarity and non-controversial 
nature of the rule. If the public believes such a meeting is needed 
with respect to this rule, a letter requesting a public meeting and 
outlining the nature of the requested meeting shall be submitted to and 
received by the FAR Secretariat (see ADDRESSES caption) on or before 
January 19, 1995.
    The FAR Council will consider such requests in determining whether 
a public meeting on this rule should be scheduled.

B. Regulatory Flexibility Act

    The proposed rule is not expected to have a significant economic 
impact on a substantial number of small entities within the meaning of 
the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Only a very small 
percentage of Federal contractors are debarred or suspended. An Initial 
Regulatory Flexibility Analysis has, therefore, not been performed. 
Comments are invited from small businesses and other interested 
parties. Comments from small entities concerning the affected FAR 
subpart will also be considered in accordance with Section 610 of the 
Act. Such comments must be submitted separately and cite FAR case 94-
801 in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FAR do not impose recordkeeping or information 
collection requirements, or collections of information from offerors, 
contractors, or members of the public which require the approval of the 
Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 9, 22, 28, 44, and 52

    Government procurement.

    Dated: December 8, 1994.
Capt. Barry L. Cohen,
SC, USN, Project Manager for the Implementation of the Federal 
Acquisition Streamlining Act of 1994.

    Therefore, it is proposed that 48 CFR Parts 9, 22, 28, 44, and 52 
be amended as set forth below:
    1. The authority citation for 48 CFR Parts 9, 22, 28, 44, and 52 
continues to read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 9--CONTRACTOR QUALIFICATIONS

    2. Section 9.105-1(c)(1) is revised to read as follows:


9.105-1  Obtaining information.

* * * * *
    (c) * * *
    (1) The List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs maintained in accordance with Subpart 9.4.
* * * * *
    3. Section 9.207(a)(9) is revised to read as follows:


Sec. 9.207  Changes in status regarding qualification requirements.

* * * * *
    (a) * * *
    (9) The source is on the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs (see Subpart 9.4); or
* * * * *
    4. Section 9.401 is revised to read as follows:


9.401  Applicability.

    In accordance with Public Law 103-355, Section 2455 (31 U.S.C. 6101 
note), and Executive Order 12689, any debarment, suspension or other 
Government-wide exclusion imposed under the Nonprocurement Common Rule 
implementing Executive Order 12549 after effective date of final rule 
shall be recognized by and effective for Executive Branch agencies as a 
debarment or suspension under this subpart. Similarly, any debarment, 
suspension, proposed debarment or other Government-wide exclusion 
imposed under this subpart shall also be recognized by and effective 
for those agencies and participants as an exclusion under the 
Nonprocurement Common Rule.
    5. Section 9.403 is amended by removing the definition Parties 
Excluded from Procurement Programs and adding, in alphabetical order, 
the definitions List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs and Nonprocurement Common Rule to read as 
follows:


9.403  Definitions.

* * * * *
    List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs means a List compiled, maintained and 
distributed by the General Services Administration (GSA) containing the 
names and other information about parties debarred, suspended, or 
voluntarily excluded under the Nonprocurement Common Rule or the 
Federal Acquisition Regulation, parties who have been proposed for 
debarment under the Federal Acquisition Regulation, and parties 
determined to be ineligible.
    Nonprocurement Common Rule means the procedures used by Federal 
Executive Agencies to suspend, debar, or exclude individuals or 
entities from participation in nonprocurement transactions under 
Executive Order 12549. Examples of nonprocurement transactions are 
grants, cooperative agreements, scholarships, fellowships, contracts of 
assistance, loans, loan guarantees, subsidies, insurance, payments for 
specified use, and donation agreements.
* * * * *
    6. Section 9.404 is amended--
    a. By revising the section heading to read as set forth below;
    b. By revising paragraphs (a)(1), (b) introductory text, (c)(5), 
(d) introductory text, (d)(3); and
    c. In paragraph (c)(3) by removing the word ``consolidated''.
    The revised text reads as follows:


9.404  List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs.

    (a) * * *
    (1) Compile and maintain a current list of all parties debarred, 
suspended, proposed for debarment, or declared ineligible by agencies 
or by the General Accounting Office;
* * * * *
    (b) The List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs shall indicate--
* * * * *
    (c) * * *
* * * * *
    (5) Establish procedures to provide for the effective use of the 
List of Parties Excluded from Federal Procurement and Nonprocurement 
Programs, including internal distribution thereof, to ensure that the 
agency does not solicit offers from, award contracts to, or consent to 
subcontracts with contractors on the List of Parties Excluded from 
Federal Procurement and Nonprocurement Programs, except as otherwise 
provided in this subpart; and
* * * * *
    (d) Information on the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs is available as follows:
* * * * *
    (3) A telephone inquiry service to answer general questions about 
entries on the List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs is also available by calling GSA at (202) 501-
4873 or 501-4740. The inquiry will be answered within one working day.


9.405  [Amended]

    7. Section 9.405 is amended--
    a. In paragraph (b) by removing the words ``Parties Excluded from 
Procurement Programs'' and inserting in its place ``List of Parties 
Excluded from Federal Procurement and Nonprocurement Programs'';
    b. In paragraph (d)(1) by removing the words ``Procurement 
Programs'' and inserting in its place ``Federal Procurement and 
Nonprocurement Programs''.


9.405-2  [Amended]

    8. Section 9.405-2 is amended in the third sentence of paragraph 
(b) introductory text, and paragraphs (b)(2) and (b)(3) by removing the 
words ``list of Parties Excluded from Procurement Programs'' and 
inserting in its place ``List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs''.

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS


22.1025  [Amended]

    9. Section 22.1025 is amended in the first sentence by removing the 
word ``lists'' and inserting in its place ``List''.

PART 28--BONDS AND INSURANCE


28.203-7  [Amended]

    10. Section 28.203-7 is amended in paragraphs (c) and (d) by 
removing the words ``list entitled Parties Excluded from Procurement 
Programs'' and inserting in its place ``List of Parties Excluded from 
Federal Procurement and Nonprocurement Programs''.

PART 44--SUBCONTRACTING POLICIES AND PROCEDURES


44.202-2  [Amended]

    11. Section 44.202-2 is amended in paragraph (a)(13) by removing 
the words ``Consolidated List of Debarred, Suspended, and Ineligible 
Contractors'' and inserting in its place ``List of Parties Excluded 
from Federal Procurement and Nonprocurement Programs''.


44.303  [Amended]

    12. Section 44.303 is amended in paragraph (c) by removing the 
words ``list of Parties Excluded from Procurement Programs'' and 
inserting in its place ``List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs''.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


52.209-6  [Amended]

    13. Section 52.209-6 is amended in paragraphs (c) introductory 
text, (c)(2), and (c)(3) by removing the words ``Procurement Programs'' 
and inserting in its place ``Federal Procurement and Nonprocurement 
Programs''.

[FR Doc. 94-30995 Filed 12-19-94; 8:45 am]
BILLING CODE 6820-34-P