[Federal Register Volume 61, Number 23 (Friday, February 2, 1996)]
[Proposed Rules]
[Pages 3877-3882]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1920]
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DEPARTMENT OF ENERGY
10 CFR Parts 1035 and 1036 and 48 CFR Part 909
RIN 1991-AB24
Debarment and Suspension (Procurement) and Governmentwide
Debarment and Suspension (Nonprocurement) and Governmentwide
Requirements for Drug-Free Workplace (Grants) and Department of Energy
Acquisition Regulation
AGENCY: Department of Energy (DOE).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Energy (DOE) today is proposing to amend its
regulations governing debarment and suspension in procurement and
nonprocurement activities. The proposed amendments to the
nonprocurement rule only include DOE agency-specific provisions; i.e.,
none include provisions in the Government-wide common rule. The
proposed rule would establish a common fact-finding process in cases
involving a genuine dispute over material facts. The proposed rule
removes the Department's procurement debarment and suspension
regulations from part 10 of the Code of Federal Regulations (CFR) and
recodifies them in the Department of Energy Acquisition Regulations
(DEAR), chapter 9 of title 48 of the Code of Federal Regulations.
DATES: Written comments (3 copies) must be received on or before April
2, 1996 in order to be assured of consideration.
ADDRESSES: Persons wishing to submit comments on this notice of
proposed rulemaking should send them to Cynthia Yee, Office of
Clearance and Support, Procurement and Assistance Management, HR-52.2,
U. S. Department of Energy, 1000 Independence Avenue, SW., Washington,
DC 20585.
FOR FURTHER INFORMATION CONTACT: Mrs. Cynthia Yee, 202-586-1140.
SUPPLEMENTARY INFORMATION:
I. Background
A. Discussion.
B. Section-by-Section Analysis.
II. Procedural Requirements.
A. Regulatory Review.
B. Review under the Regulatory Flexibility Act.
C. Review Under the Paperwork Reduction Act.
D. Review Under the National Environmental Policy Act.
E. Review Under Executive Order 12612.
F. Review Under Executive Order 12778.
III. Public Comments.
I. Background
A. Discussion
President Reagan signed Executive Order 12549 on February 18, 1986,
which established governmentwide effect for an agency's nonprocurement
debarment and suspension actions. On October 13, 1994, President
Clinton signed Public Law 103-355, the Federal Acquisition Streamlining
Act of 1994. Section 2455 of that Act provides that the debarment,
suspension, or other exclusion of a participant in a procurement
activity under the Federal Acquisition Regulation, or in a
nonprocurement activity under regulations issued pursuant to 12549,
shall be given reciprocal governmentwide effect. This proposed
rulemaking furthers those actions by changing various provisions to
clarify the DOE procurement suspension and debarment provisions and to
ensure consistency between the Federal Acquisition Regulation (FAR) and
the DEAR. Additionally, this proposed rule deletes some DOE-specific
provisions to provide for uniformity with other Federal agencies.
B. Section-by-Section Analysis
The DOE today is removing the current regulation, at 10 CFR Part
1035, and recodifying the regulation at 48 CFR Part 909. In recodifying
the debarment and suspension regulations, DOE has made various changes
to clarify the provisions of procurement debarment and suspension and
to ensure consistency between the FAR and the DEAR. The rules of
procedure for fact-finding conferences in Appendix A of 10 CFR Part
1035 are removed. Under the recodified regulations, the Energy Board of
Contract Appeals will conduct fact-finding in disputed suspension or
proposed debarments.
This proposed rule also amends 10 CFR Part 1036, which governs
debarment and suspension with regard to DOE nonprocurement and grants
programs.
The Department of Energy Consolidated List of Debarred, Suspended,
Ineligible and Voluntarily Excluded Awardees (DOE List) has been
eliminated as unnecessary because the General Services Administration
maintains, pursuant to Executive order 12549, a governmentwide list of
parties excluded from federal procurement and nonprocurement programs.
The following is a comparison of existing provisions in 10 CFR Part
1035 with provisions proposed for inclusion in 48 CFR Part 909 (DEAR).
Subpart 909.400 is not signficantly different from the previous 10
CFR
[[Page 3878]]
1035.1; subpart 909.401 also is unchanged from 10 CFR 1035.2. Subpart
909.402 is removed as it is contained in FAR 9.402. Subpart 909.403
differs significantly from 1035.4 in that, except for DOE-specific
definitions, all other definitions are removed as they are contained in
FAR 9.403.
Subpart 909.405 is an abbreviated discussion of the effects of
being listed on the General Services Administration's Consolidated List
of Debarred, Suspended, and Ineligible Contractors (GSA List),
previously contained in 10 CFR 1035.13, which includes only those DOE-
specific requirements.
Subpart 909.406-2, which identifies causes of so serious or
compelling a nature that they affect the present responsibility of a
DOE contractor, was previously contained at 10 CFR 1035.5.
Subpart 909.406-3 discusses the DOE procedures for investigation,
referral, decisionmaking and notices of debarment previously contained
in 10 CFR 1035.5(c), 1035.7 and 1035.8. The discussion in 909.406-3 is
abbreviated and more consistent with the requirements contained in FAR
9.406 and incorporates many of the FAR provisions.
Subpart 909.406-6, in which provision for reconsideration is
addressed, was previously contained in 10 CFR 1035.11(c).
New subpart 909.407-2 enumerates other causes for suspension
previously contained in 10 CFR 1035.5(b).
New subpart 909.407-3 discusses the DOE procedures for
investigation, referral, decisionmaking and notices of suspension
previously contained 10 CFR 1305.5(c), 1035.7 and 1035.8.
The changes proposed to 10 CFR Part 1036, Governmentwide Debarment
and Suspension (Nonprocurement) and Governmentwide Requirements for
Drug-Free Workplace (Grants) are primarily minor in nature. Sections
1036.105, 1036.110, 1036.215, 1036.312, 1036.313, 1036.314, 1036.412,
1036.710, and 1036.715 are administrative changes, consisting of
correcting the identity of the DOE debarring and suspending official,
correcting the citation for procurement suspension and debarment
provisions, deleting reference to the DOE List, and deleting incorrect
references within Part 1036.
Significant changes to DOE agency-specific provisions are made to
section 1036.312 and 1036.411, which are amended by deleting the
references to information that is not to be included in a notice of
proposed debarment. Section 1036.315, a DOE agency-specific provision,
is amended by deleting subparagraph 1036.315(c), which discusses terms
of voluntary exclusions.
Section 1036.700, which discusses DOE procedures for debarment and
suspension, is revised to include language similar to that contained in
the proposed DEAR provisions. The proposed revision provides for fact-
finding by the Energy Board of Contract Appeals in suspensions or
proposed debarments in which the debarring/suspending official
determines that material facts are in dispute.
Section 1036.705 is amended by deleting reference to in camera
review of evidence, providing for decision making based on the
administrative record.
The most signficant changes that will be made by the proposed DEAR
provisions and the revisions to 10 CFR Part 1036 are with respect to in
camera review and fact-finding. The proposed changes are procedural in
nature and will not have any substantive impact on any person's or
entity's rights.
Due to the extensive revisions to DEAR, the complete text of DEAR
909.4 is published. In order to focus commentor's attention on the
changes that are proposed to 10 CFR Part 1036, only those portions of
Part 1036 that are affected by the changes proposed are published,
rather than publishing the complete text of the common rule. In
addition to the amendments discussed, minor technical changes of a
nonsubstantive nature are made.
II. Procedural Requirements
A. Regulatory Review
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993).
However, the proposed rule was subject to review under the Executive
Order by the Office of Information and Regulatory Affairs because it
relates to the subject matter of a Governmentwide common rule.
B. Review Under the Regulatory Flexibility Act
This proposed rule was reviewed under the Regulatory Flexibility
Act of 1980, Public Law 96-354, which requires preparation of a
regulatory flexibility analysis for any rule which is likely to have
significant economic impact on a substantial number of small entities.
DOE certifies that this rule will not have a signficant economic impact
on a substantial number of small entities, and therefore, no regulatory
flexibility analysis has been prepared.
C. Review Under the Paperwork Reduction Act
No new information collection or recordkeeping requirements are
imposed by this proposed rulemaking. Accordingly, no OMB clearance is
required by the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et
seq.).
D. Review Under NEPA
DOE has determined that issuance of this proposed rule is not a
major federal action significantly affecting the quality of the human
environment within the meaning of the National Environmental Policy Act
of 1969 (NEPA), 42 U.S.C. 4321 et seq., and therefore that neither an
environmental assessment nor an environmental impact statement is
required. Categorical exclusion A2 in DOE's regulations implementing
NEPA, appendix A of subpart D of 10 CFR Part 1021, applies to this
rulemaking. Categorical exclusion A2 encompasses procedural and
administrative matters pertaining to contracts.
E. Review Under Executive Order 12612
Executive Order 12612, 52 FR 41685 (October 30, 1987), requires
that regulations, rules, legislation, and any other policy actions be
reviewed for any substantial direct effects on States, on the
relationship between the national Government and the States, and in the
distribution of power and responsibility among various levels of
Government. If there are sufficient substantial direct effects, then
the Executive Order requires preparation of a federalism assessment to
be used in all decisions involved in promulgating and implementing a
policy action.
Today's proposed rule, when finalized, will revise certain
procedural requirements pertaining to suspension and debarment of DOE
contractors. However, DOE has determined that none of the revisions
will have a substantial direct effect on the institutional interests or
traditional functions of the States.
F. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 2(a)
and (b)(2), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation: specifies
clearly any preemptive effect,
[[Page 3879]]
effect on existing Federal law or regulation, and retroactive effect;
describes any administrative proceedings to be available prior to
judicial review and any provisions for the exhaustion of such
administrative proceedings; and defines key terms. This proposed rule
would, when adopted as a final rule, have no preemptive effect, will
not have any effect on existing Federal laws, and would only clarify
the existing regulations on this subject. The revisions would apply
only to actions initiated after the effective date of the final rule,
and thus, would have no retroactive effect. Therefore, DOE certifies
that this proposed rule meets the requirements of sections 2(a) and (b)
of Executive Order 12778.
III. Public Comments
Interested persons are invited to participate by submitting data,
views, or arguments with respect to the proposed amendments set forth
in this notice. Three copies of written comments should be submitted to
the address indicated in the ADDRESSES section of this notice. All
written comments received by the date indicated in the DATES section of
this notice and all other relevant information will be fully considered
by DOE before taking final action. Comments received after that date
will be considered to the extent that time allows. Any information
considered to be confidential must be so identified and submitted in
writing, one copy only. DOE reserves the right to determine the
confidential status of the information and to treat it according to our
determinations (10 CFR 1004.11).
DOE has concluded that this proposed rule does not involve a
substantial issue of fact or law, and that the proposed rule will not
have substantial impact on the nation's economy or a large number of
individuals or businesses. Therefore, pursuant to Public Law 95-91, the
DOE Organization Act, and the Administrative Procedure Act (5 U.S.C.
533), the Department does not plan to hold a public hearing on this
proposed rule.
List of Subjects in 10 CFR Parts 1035 and 1036 and 48 CFR Part 909
Administrative practice and procedure, Government procurement.
Issued in Washington, DC, on January 23, 1996.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set out in the preamble, Title 10 Code of Federal
Regulations Parts 1035 and 1036 and Chapter 9, Title 48 Code of Federal
Regulations are proposed to be amended as set forth below.
10 CFR PART 1035--DEBARMENT AND SUSPENSION (PROCUREMENT) [REMOVED]
1. Part 1035--Debarment and Suspension (Procurement) is removed.
48 CFR PART 909--CONTRACTOR QUALIFICATIONS
2. The authority citation for Part 909 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
3. Subpart 909.4 is revised to read as follows:
Subpart 909.4--Debarment, Suspension, and Ineligibility
909.400 Scope of subpart.
909.401 Applicability.
909.403 Definitions.
909.405 Effect of listing.
909.406 Debarment
909.406-2 Causes for debarment.
909.406-3 Procedures
909.406-6 Requests for reconsideration of debartment.
909.407-2 Causes for suspension.
909.407-3 Procedures.
909.400 Scope of subpart.
This subpart--
(a) Prescribes policies and procedures governing the debarment and
suspension of organizations and individuals from participating in
Department of Energy (DOE) contracts, procurement sales contracts, and
real property purchase agreements, and from participating in DOE
approved subcontracts and subagreements.
(b) Sets forth the causes, procedures, and requirements for
determining the scope, duration, and effect of DOE debarment and
suspension actions; and
(c) Implements and supplements FAR subpart 9.4 with respect to the
exclusion of organizations and individuals from procurement contracting
and Government approved subcontracting.
909.401 Applicability.
The provisions of this subpart apply to all procurement debarment
and suspension actions initiated by DOE on or after the effective date
of this subpart. Nonprocurement debarment and suspension rules are
codified in 10 CFR part 1036.
909.403 Definitions.
In addition to the definitions set forth at FAR 9.403, the
following definitions apply to this subpart.
Debarring Official. The DOE Debarring Official is the Deputy
Assistant Secretary for Procurement and Assistance Management, or
designee.
DOE means the Department of Energy, including the Federal Energy
Regulatory Commission.
Suspending Official. The DOE Suspending Official is the Deputy
Assistant Secretary for Procurement and Assistance Management, or
designee.
909.405 Effect of listing.
(e) The Department of Energy may not solicit offers from, award
contracts to or consent to subcontract with contractors debarred,
suspended or proposed for debarment unless the Deputy Assistant
Secretary for Procurement and Assistance Management makes a written
determination justifying that there is a compelling reason for such
action in accordance with FAR 9.405(a).
(f) DOE may disapprove or not consent to the selection (by a
contractor) of an individual to serve as a principal investigator, as a
project manager, in a position of responsibility for the administration
of Federal funds, or in another key personnel position, if the
individual is on the GSA List.
(g) DOE shall not conduct business with an agent or representative
of a contractor if the agent's or representative's name appears on the
GSA List.
(h) DOE shall review the GSA List before conducting a preaward
survey or soliciting proposals, awarding contracts, renewing or
otherwise extending the duration of existing contracts, or approving or
consenting to the award, extension, or renewal of subcontracts.
909.406 Debarment.
909.406-2 Causes for debarment.
(c) The Debarring Official may debar a contractor for any other
cause of so serious or compelling a nature that it affects the present
responsibility of a DOE contractor. Such cause may include but is not
limited to:
(1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a private contract or
subcontract; and
(2) Inexcusable, prolonged, or repeated failure to pay a debt
(including disallowed costs and overpayments) owed to DOE, provided the
contractor has been notified of the determination of indebtedness, and
further provided that the time for initiating any administrative or
legal action to oppose or appeal the determination of indebtedness has
expired or that such action, if initiated, has been concluded.
(d) The Debarring Official may debar a contractor:
(1) On the basis that an individual or organization is an affiliate
of a debarred
[[Page 3880]]
contractor, subject to the requirements of FAR 9.406-1(b) and 9.406-
3(c);
(2) For failure to observe the material provisions of a voluntary
exclusion (see 10 CFR 1036.315 for discussion of voluntary exclusion).
909.406-3 Procedures.
(a) Investigation and referral. (1) Offices responsible for the
award and administration of contracts are responsible for reporting to
both the Deputy Assistant Secretary for Procurement and Assistance
Management and the DOE Inspector General information about possible
fraud, waste, abuse, or other wrongdoing which may constitute or
contribute to a cause(s) for debarment under this subpart.
Circumstances that involve possible criminal or fraudulent activities
must be reported to the Office of the Inspector General in accordance
with 10 CFR Part 1010, Conduct of Employees, Section 1010.217(b),
Cooperation with the Inspector General.
(2) At a minimum, referrals for consideration of debarment action
should be in writing and should include the following information:
(i) The recommendation and rationale for the referral;
(ii) A statement of facts;
(iii) Copies of documentary evidence and a list of all witnesses,
including addresses and telephone numbers, together with a statement
concerning their availability to appear at a fact-finding proceeding
and the subject matter of their testimony;
(iv) A list of parties including the contractor, principals, and
affiliates (including last known home and business addresses, zip codes
and DUNS Number);
(v) DOE's acquisition history with the contractor, including recent
experience under contracts and copies of pertinent contracts;
(vi) A list of any known active or potential criminal
investigations, criminal or civil proceedings, or administrative claims
before the Board of Contract Appeals; and
(vii) A statement regarding the impact of the debarment action on
DOE programs. This statement is not required for referrals by the
Inspector General.
(3) Referrals may be returned to the originator for further
information or development.
(b) Decisionmaking process. Contractors proposed for debarment
shall be afforded an opportunity to submit information and argument in
opposition to the proposed debarment.
(1) In actions based upon a conviction or civil judgment, or in
which there is no genuine dispute over material facts, the Debarring
Official shall make a decision on the basis of all the information in
the administrative record, including any submissions made by the
contractor. If the respondent fails to submit a timely written response
to a notice of proposed debarment, the Debarring Official shall notify
the respondent in accordance with FAR 9.406-3(e) that the contractor is
debarred.
(2) In actions not based upon a conviction or civil judgment, the
contractor may request a fact-finding hearing to resolve a genuine
dispute of material fact. In its request, the contractor must identify
the material facts in dispute and the basis for disputing the facts. If
the Debarring Official determines that there is a genuine dispute of
material fact, the Debarring Official shall refer the matter to the
Energy Board of Contract Appeals for a fact-finding conference.
(3) Meeting. Upon receipt of a timely request therefor from a
contractor proposed for debarment, the Debarring Official shall
schedule a meeting between the Debarring Official and the respondent,
to be held no later than 30 days from the date the request is received.
The Debarring Official may postpone the date of the meeting if the
respondent requests a postponement in writing. At the meeting, the
respondent, appearing personally or through an attorney or other
authorized representative, may present and explain evidence that causes
for debarment do not exist, evidence of any mitigating factors, and
arguments concerning the imposition, scope, or duration of a proposed
debarment or debarment.
(4) Fact-finding conference. The purpose of a fact-finding
conference under this section is to provide the respondent an
opportunity to dispute material facts through the submission of oral
and written evidence; resolve facts in dispute; and provide the
Debarring Official with findings of fact based, as applicable, on
adequate evidence or on a preponderance of the evidence. The fact-
finding conference shall be conducted in accordance with rules
consistent with FAR 9.406-3(b) promulgated by the Energy Board of
Contract Appeals. The Energy Board of Contract Appeals will notify the
affected parties of the schedule for the hearing. The Energy Board of
Contract Appeals shall deliver written findings of fact to the
Debarring Official (together with a transcription of the proceeding, if
made) within a certain time period after the hearing record closes, as
specified in the Energy Board of Contract Appeals Rules. The findings
shall resolve any disputes over material facts based upon a
preponderance of the evidence, if the case involves a proposal to
debar, or on adequate evidence, if the case involves a suspension.
Since convictions or civil judgments generally establish the cause for
debarment by a preponderance of the evidence, there usually is no
genuine dispute over a material fact that would warrant a fact-finding
conference for those proposed debarments based on convictions or civil
judgments.
(d) Debarring Official's decision.
(4) The Debarring Official's final decision shall be based on the
administrative record. In those actions where additional proceedings
are necessary as to disputed material facts, written findings of fact
shall be prepared and included in the final decision. In those cases
where the contractor has requested and received a fact-finding
conference, the written findings of fact shall be those findings
prepared by the Energy Board of Contract Appeals. Findings of fact
shall be final and conclusive unless within 15 days of receipt of the
findings, the Department or the respondent requests reconsideration, as
provided in the Board's Rules, or unless set aside by a court of
competent jurisdiction. The Energy Board of Contract Appeals shall be
provided a copy of the Debarring Official's final decision.
909.406-6 Requests for reconsideration of debarment.
(a) At any time during a period of debarment, a respondent may
submit to the Debarring or Suspending Official a written request for
reconsideration of the scope, duration, or effects of the suspension/
debarment action because of new information or changed circumstances,
as discussed at FAR 9.406-4(c).
(b) In reviewing a request for reconsideration, the Debarring or
Suspending Official may, in his or her discretion, utilize any of the
procedures (meeting and fact-finding) set forth in 48 CFR (DEAR)
909.406-3 and 909.407-3. The Debarring or Suspending Official's final
disposition of the reconsideration request shall be in writing and
shall set forth the reasons why the request has been granted or denied.
A notice transmitting a copy of the disposition of the request for
reconsideration shall be sent to the respondent and, if a fact-finding
conference under 48 CFR (DEAR) 909.406-3(b)(4) is pending (as in the
case of a request for reconsideration of a suspension, where the
proposed debarment is the subject of a fact-finding conference), a copy
of the disposition shall be transmitted to the Energy Board of Contract
Appeals.
[[Page 3881]]
909.407-2 Causes for suspension.
(d) The Suspending Official may suspend an organization or
individual:
(1) Indicted for or suspected, upon adequate evidence, of the
causes described in 48 CFR (DEAR) 909.406-2(c)(1).
(2) On the basis of the causes set forth in 48 CFR (DEAR) 909.406-
2(d)(2).
(3) On the basis that an organization or individual is an affiliate
of a suspended or debarred contractor.
909.407-3 Procedures.
(b) Decisionmaking process.
(1) In actions based on an indictment, the Suspending Official
shall make a decision based upon the administrative record, which shall
include submissions made by the contractor in accordance with 48 CFR
(DEAR) 909.406-3(b)(1) and 909.406-3(b)(3).
(2) For actions not based on an indictment, the procedures in 48
CFR (DEAR) 909.406-3(b)(2) and FAR 9.407-3(b)(2) apply.
(3) Coordination with Department of Justice. Whenever a meeting or
fact-finding conference is requested, the Suspending Official's legal
representative shall obtain the advice of appropriate Department of
Justice officials concerning the impact disclosure of evidence at the
meeting or fact-finding conference could have on any pending civil or
criminal investigation or legal proceeding. If such Department of
Justice official requests in writing that evidence needed to establish
the existence of a cause for suspension not be disclosed to the
respondent, the Suspending Official shall:
(i) Decline to rely on such evidence and withdraw (without
prejudice) the suspension or proposed debarment until such time as
disclosure of the evidence is authorized; or
(ii) Deny the request for a meeting or fact-finding and base the
suspension decision solely upon the information in the administrative
record, including any submission made by the respondent.
(e) Notice of suspending official's decision. In actions in which
additional proceedings have been held, following such proceedings, the
Suspending Official shall notify respondent, as applicable, in
accordance with paragraphs (e)(1) or (e)(2) of this section.
(1) Upon deciding to sustain a suspension, the Suspending Official
shall promptly send each affected respondent a notice containing the
following information:
(i) A reference to the notice of suspension, the meeting and the
fact-finding conference;
(ii) The Suspending Official's findings of fact and conclusions of
law;
(iii) The reasons for sustaining a suspension;
(iv) A reference to the Suspending Official's waiver authority
under 48 CFR (DEAR) 909.405;
(v) A statement that the suspension is effective throughout the
Executive Branch as provided in 48 CFR (FAR) subpart 9.407-1(d);
(vi) Modifications, if any, of the initial terms of the suspension;
(vii) A statement that a copy of the suspension notice was sent to
GSA and that the respondent's name and address will be added to the GSA
List; and
(viii) If less than an entire organization is suspended,
specification of the organizational element(s) or individual(s)
included within the scope of the suspension.
(2) If the Suspending Official decides to terminate a suspension,
the Suspending Official shall promptly send, by certified mail, return
receipt requested, each affected respondent a copy of the final
decision required under this section.
PART 1036--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)
4. The authority citation for part 1036 continues to read as
follows:
Authority: E.O. 12689, E.O. 12549; Sec. 5151-5160 of the Drug-
Free Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 42
U.S.C. 701 et seq.); Secs. 644 and 646, Pub. L. 95-91, 91 Stat. 599
(42 U.S.C. 7254 and 7256); Pub. L. 97-258, 98 Stat. 1003-1005 (31
U.S.C.) 6301-6308.
Subpart A--General
Sec. 1036.105 [Amended]
5. Section 1036.105 is amended by revising the phrase ``Director,
Procurement and Assistance Management Directorate'' to read ``Deputy
Assistant Secretary for Procurement and Assistance Management or
designee'' in the definitions for ``Debarring Official'' (paragraph
(3)) and ``Suspending Official'' (paragraph (3)); and removing the
definitions for ``Director'' and ``DOE List.''
Subpart C--Debarment
Sec. 1036.312 [Amended]
6-8. Section 1036.312 is amended by removing paragraph (b)(1); by
removing paragraph (d)(1); by removing paragraph (e)(1); in paragraph
(f) by revising ``Director'' to read ``debarring official;'' and in
paragraph (g) by revising ``DOE'' to read ``GSA.''
Sec. 1036.313 [Amended]
9. Section 1036.313 is amended in paragraph (a)(1) by revising
``Director'' to read ``debarring official'' and removing the citation
``(See Sec. 1036.600(c)).''
Sec. 1036.314 [Amended]
10. Section 1036.314 is amended by removing paragraph (d)(1)(vi)
and redesignating paragraphs (d)(1) (vii) and (viii) to (d)(1) (vi) and
(vii).
Sec. 1036.315 [Amended]
11. Section 1036.315 is amended by removing paragraph (c).
Subpart D--Suspension
Sec. 1036.411 [Amended]
12. Section 1036.411 is amended by removing paragraph (c)(1); by
removing paragraph (f)(1); in paragraph (h) by revising ``Director'' to
read ``suspending official'' and in paragraph (j) by revising ``DOE''
to read ``GSA.''
Sec. 1036.412 [Amended]
13. Section 1036.412 is amended by removing paragraph (a)(1).
Subpart G--Additional DOE Procedures for Debarment and Suspension
Sec. 1036.700 [Revised]
14. Section 1036.700, is revised to read as follows:
Sec. 1036.700 Procedures.
(a) Decisionmaking process for debarments.
(1) In actions based upon a conviction or civil judgment, and other
actions in which there is no genuine dispute over material facts, the
debarring official shall make a decision on the basis of all the
information in the administrative record, including any submissions
made by the awardee. If no suspension is in effect, the decision shall
be made within 30 working days after receipt of any information and
argument submitted by the awardee, unless the debarring official
extends this period for good cause. The debarring official shall
consider information and argument in opposition to the proposed
debarment including identification of disputed material facts. If the
respondent fails to submit a timely written response to a notice of
proposed debarment, the debarring official shall notify the respondent
in accordance with 10 CFR 1036.312 that the awardee is debarred.
(2) In actions not based upon a conviction or civil judgment, if it
is
[[Page 3882]]
found that the awardee's submission in opposition raises a genuine
dispute over facts material to the proposed debarment, at the request
of the awardee, the debarring official shall refer the matter to the
Energy Board of Contract Appeals for a fact-finding conference, in
accordance with rules consistent with this section promulgated by the
Energy Board of Contract Appeals. The Energy Board of Contract Appeals
shall report to the Debarring Official findings of fact, not
conclusions of law. The findings shall resolve any disputes over
material facts based on a preponderance of evidence.
(b) Decisionmaking process for suspensions.
(1) In actions based on an indictment, the suspending official
shall make a decision based upon the administrative record, which shall
include submissions made by the awardee.
(2) In actions not based on an indictment, if it is found that the
awardee's submission in opposition raises a genuine dispute over facts
material to the suspension and if no determination has been made, on
the basis of Department of Justice advice, that substantial interest of
the Government in pending or contemplated legal proceedings based on
the same facts as the suspension would be prejudiced, the suspending
official shall, at the request of the awardee, refer the matter to the
Energy Board of Contract Appeals for a fact-finding conference, in
accordance with rules promulgated by the Energy Board of Contract
Appeals. The Energy Board of Contract Appeals shall report to the
Suspending Official findings of fact, not conclusions of law. The
findings shall resolve any disputes over material facts based on
adequate evidence.
(c) Meeting. Upon receipt of a timely request therefore from the
respondent, the debarring/suspending official shall schedule a meeting
between the debarring/suspending official and the respondent, to be
held no later than 30 days from the date the request is received. The
debarring/suspending official may postpone the date of the meeting if
the respondent requests a postponement in writing. At the meeting, the
respondent, appearing personally or through an attorney or other
authorized representative, may informally present and explain evidence
that causes for debarment or suspension do not exist, evidence of any
mitigating factors, and arguments concerning the imposition, scope,
duration, or effects of a proposed debarment or suspension.
(d) Fact-finding conference. The purpose of a fact-finding
conference under this section is to provide the respondent an
opportunity to dispute material facts and to provide the debarring/
suspending official with findings of fact based, as applicable, on
adequate evidence or on a preponderance of the evidence. If the
debarring/suspending official determines that a written response or a
presentation at the meeting under paragraph (c) of this section puts
material facts in dispute, the debarring/suspending official shall
refer the matter to the Energy Board of Contract Appeals for fact-
finding. The fact-finding conference shall be conducted in accordance
with rules promulgated by the Energy Board of Contract Appeals. The
Energy Board of Contract Appeals shall report to the Debarring Official
findings of fact, but not conclusions of law. The findings shall
resolve any disputes over material facts based on a preponderance of
evidence if the case involves a proposal to debar, or on adequate
evidence if the case involves a suspension. Since convictions or civil
judgments generally establish the cause for debarment by a
preponderance of the evidence, there usually is no genuine dispute over
a material fact that warrants a fact-finding conference for those
proposed debarments based on convictions or civil judgments.
15. Section 1036.705 is amended in the introductory paragraph by
revising ``Director's'' and ``Director'' to read ``debarring/suspending
official'' in the first and second sentences, revising reference to
``1036.700 (b)(1) or (b)(2)'' to read ``1036.700(c)'' and by revising
paragraph (b) to read as follows:
Sec. 1036.705 Coordination with Department of Justice.
* * * * *
(b) Deny additional proceedings and base the decision on all
information in the administrative recording, including any submissions
made by the respondent.
Sec. 1036.710 [Removed]
16. Section 1036.710, DOE consolidated list of debarred, suspended,
ineligible, and voluntarily excluded awardees, is removed.
Sec. 1036.715 [Amended]
17. Section 1036.715 is amended by revising the section heading to
read ``Effects of being listed on the GSA list.'' and, in the
introductory paragraph, by revising ``Director'' to read ``Deputy
Assistant Secretary for Procurement and Assistance Management or
designee'' and by revising ``DOE List'' to read ``GSA List'' wherever
it appears in paragraphs (a) through (g).
[FR Doc. 96-1920 Filed 2-1-96; 8:45 am]
BILLING CODE 6450-01-P