[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39854-39859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16015]


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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: Final rule.

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SUMMARY: The Department of Energy (DOE) today is publishing a final 
rule which amends its regulations governing debarment and suspension in 
procurement and nonprocurement activities. The rule establishes a 
common fact-finding process in procurement and nonprocurement cases 
involving a genuine dispute over material facts. The 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 Regulation (DEAR), chapter 9 of title 
48 of the Code of Federal Regulations.

EFFECTIVE DATE: This rule is effective August 30, 1996.

FOR FURTHER INFORMATION CONTACT: Mrs. Cynthia Yee, Office of Clearance 
and Support, Procurement and Assistance Management, HR-52, U. S. 
Department of Energy, 1000 Independence Avenue, SW, Washington, DC 
20585, 202-586-1140.

SUPPLEMENTARY INFORMATION:

I. Background.
II. Public Comments.
III. 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 12988.
    G. Review Under the Unfunded Mandates Reform Act.

I. Background

    The Department of Energy (DOE) today is publishing a final rule 
which removes 10 CFR Part 1035, Debarment and Suspension (Procurement), 
and recodifies the regulation at 48 CFR Part 909. In recodifying the 
procurement debarment and suspension regulations, DOE makes various 
changes to clarify the provisions of procurement debarment and 
suspension and to ensure consistency between the Federal Acquisition 
Regulation (FAR) and the DEAR. See explanation of the changes in the 
preamble to the Notice of Proposed Rulemaking published for this rule 
on February 2, 1996 (61 FR 3877). Under the recodified regulations, the 
Energy Board of Contract Appeals will conduct fact-finding in 
suspensions or proposed debarments in which the debarring/suspending 
official determines that material facts are in dispute.
    This rule also amends 10 CFR Part 1036, Governmentwide Debarment 
and Suspension (Nonprocurement) and Governmentwide Requirements for 
Drug-Free Workplace (Grants), which governs debarment and suspension 
with regard to DOE nonprocurement and grants programs. The changes made 
to 10 CFR Part 1036 are primarily technical or procedural in nature. 
They are explained in the preamble of the Notice of Proposed Rulemaking 
(61 FR 3877-3878), with the exception of changes to subparagraph (c)(1) 
of section 1036.110 and subparagraph (a) of section 1036.215, which 
were not in the proposed rule. These subparagraphs are being added 
because previous changes to the common rule resulted in them being 
inadvertently omitted. This final rule reinstates the subparagraphs and 
corrects references in those reinstated subparagraphs. Section 1036.700 
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.
    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.
    Due to the extensive revisions to DEAR, the complete text of DEAR 
909.4 is published. However, only those portions of Part 1036 that are 
affected by the changes are published, rather than

[[Page 39855]]

publishing the complete text of the common rule.

II. Public Comments

    On February 2, 1996, DOE published a Notice of Proposed Rulemaking 
and invited public comment for a period of 60 days on these amendments 
to the Department's debarment and suspension regulations (61 FR 3877). 
No comments were received on the proposed rule. Except for the 
technical correction of sections 1036.110 and 1036.215, this final rule 
makes no changes to the rule as proposed.

III. Procedural Requirements

A. Regulatory Review

    Today's final rule has been determined not to be a ``significant 
regulatory action'' under Executive Order 12866, ``Regulatory Planning 
and Review,'' (58 FR 51735, October 4, 1993). Nevertheless, a copy of 
the rule was submitted informally to 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 final 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. Today's rule 
revises procedural requirements pertaining to suspension and debarment 
of DOE contractors. It contains no recordkeeping or substantive 
regulatory requirements. 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 rule. 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 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 rule revises certain procedural requirements pertaining to 
suspension and debarment of DOE contractors. 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 12988

    Section 3 of Executive Order 12988 instructs each agency to adhere 
to certain requirements in promulgating new regulations and reviewing 
existing regulations. These requirements, set forth in sections 3(a) 
and 3(b), 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, 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. DOE has completed the required review and determined that, to 
the extent permitted by law, the final rule meets the relevant 
standards of Executive Order 12988.

G. Review Under the Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (the Act), 
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal 
agency, to the extent permitted by law, to prepare a written assessment 
of the effects of any Federal mandate in a proposed or final agency 
rule that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year. 
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal 
agency to develop an effective process to permit timely input by 
elected officers (or their designees) of State, local, and tribal 
governments on a proposed ``significant intergovernmental mandate.'' 
Section 203 of the Act, which supplements section 204(a), provides that 
before establishing any regulatory requirements that might 
significantly or uniquely affect small governments, the agency shall 
have developed a plan that, among other things, provides for notice to 
potentially affected small governments, if any, and for a meaningful 
and timely opportunity to provide input in the development of 
regulatory proposals. 2 U.S.C. 1533.
    The final rule published today does not contain any Federal 
mandate. Therefore, the requirements of Title II of the Unfunded 
Mandates Reform Act of 1995 do not apply.

List of Subjects

10 CFR Part 1035

    Administrative practice and procedure, Government procurement.

10 CFR Part 1036

    Administrative practice and procedure, Drug abuse, Grant programs, 
Loan programs.

48 CFR Part 909

    Government procurement.

    Issued in Washington, DC, on June 7, 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 amended as set forth below.

10 CFR PART 1035--DEBARMENT AND SUSPENSION (PROCUREMENT)--[REMOVED]

    1. Under the authority of Section 644 of the DOE Organization Act, 
42 U.S.C. 7254, Part 1035--Debarment and Suspension (Procurement) is 
removed.

[[Page 39856]]

PART 1036--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) 
AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)

    2. The authority citation 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  Definitions. [Amended]

    3. 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.''
    4. Section 1036.110 is amended by adding paragraphs (c) (1) and (2) 
to read as follows:


Sec. 1036.110  Coverage.

* * * * *
    (c) * * *
    (1) Debarment and suspension of DOE procurement contractors is 
covered by 48 CFR (DEAR) 909.4.
    (2) Reserved.

Subpart B--Effect of Action

    5. Section 1036.215 is amended by adding paragraphs (a) and (b) to 
read as follows:


Sec. 1036.215  Exception provision.

* * * * *
    (a) The DOE authorized designee is the Deputy Assistant Secretary 
for Procurement and Assistance Management or designee.
    (b) Reserved.

Subpart C--Debarment


Sec. 1036.312  Notice of proposed debarment. [Amended]

    6. 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  Opportunity to contest proposed debarment. [Amended]

    7. 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  Debarring official's decision. [Amended]

    8. Section 1036.314 is amended by removing paragraph (d)(1)(vi) and 
redesignating paragraphs (d)(1) (vii) and (viii) as (d)(1) (vi) and 
(vii).


Sec. 1036.315  Settlement and voluntary exclusion. [Amended]

    9. Section 1036.315 is amended by removing paragraph (c).

Subpart D--Suspension


Sec. 1036.411  Notice of Suspension. [Amended]

    10. 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  Opportunity to contest suspension. [Amended]

    11. Section 1036.412 is amended by removing paragraph (a)(1).

Subpart G--Additional DOE Procedures for Debarment and Suspension

    12. Section 1036.700, Decisionmaking, 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 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.

[[Page 39857]]

    (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.
    13. Section 1036.705 is amended in the introductory paragraph by 
revising ``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   DOE consolidated list of debarred, suspended, 
ineligible, and voluntarily excluded awardees. [Removed]

    14. Section 1036.710, DOE consolidated list of debarred, suspended, 
ineligible, and voluntarily excluded awardees, is removed.


Sec. 1036.715   Effects of being listed on the GSA list. [Amended]

    15. 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).

48 CFR PART 909--CONTRACTOR QUALIFICATIONS

    16. The authority citation for Part 909 continues to read as 
follows:

    Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).

    17. Subpart 909.4 is revised to read as follows:

Subpart 909.4--Debarment, Suspension, and Ineligibility

Sec.
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 debarment.
909.407-2  Causes for suspension.
909.407-3  Procedures.

Subpart 909.4--Debarment, Suspension, and Ineligibility


Sec. 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.


Sec. 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.


Sec. 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.


Sec. 909.405   Effect of listing. (DOE coverage--paragraph (e), (b), 
(g) and (h))

    (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.


Sec. 909.406   Debarment.


Sec. 909.406-2   Causes for debarment. (DOE coverage--paragraphs (c) 
and (d))

    (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 39858]]

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).


Sec. 909.406-3   Procedures. (DOE coverage--paragraphs (a), (b) and 
(d))

    (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, Sec. 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 39859]]

909.407-2  Causes for suspension. (DOE coverage--paragraph (d))

    (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. (DOE coverage--paragraphs (b) and (c))

    (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 FAR 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.

[FR Doc. 96-16015 Filed 7-30-96; 8:45 am]
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