[Federal Register Volume 70, Number 168 (Wednesday, August 31, 2005)]
[Rules and Regulations]
[Pages 51863-51880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-16647]


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OFFICE OF MANAGEMENT AND BUDGET

2 CFR Parts 180 and 215


Guidance for Governmentwide Debarment and Suspension 
(Nonprocurement)

AGENCY: Office of Management and Budget.

ACTION: Interim final guidance.

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SUMMARY: The Office of Management and Budget (OMB) is updating its 
guidance on nonprocurement debarment and suspension to conform to the 
common rule that 33 Federal agencies published on November 26, 2003. 
The agencies issued that common rule after resolving public comments 
received in response to a Notice of Proposed Rulemaking. In updating 
the guidance, the OMB is making two improvements to streamline the 
policy framework in this area.
    First, we are issuing the guidance in a format that is suitable for 
Federal agency adoption. Agency adoption of the guidance will reduce 
the volume of Federal regulations on nonprocurement debarment and 
suspension, making it easier for the affected public to use, and easier 
and less expensive for the Federal Government to maintain.
    Second, we are publishing the guidance in the recently established 
Title 2 of the Code of Federal Regulations (2 CFR). Locating it in 2 
CFR will make it easier to find. Also, the OMB guidance will be co-
located in the same title of the CFR as Federal agencies' implementing 
regulations that adopt the guidance. That is, consistent with the 
framework put in place when OMB established Title 2, each Federal 
agency will issue its implementing regulation in its chapter in 
Subtitle B of 2 CFR. This notice also makes minor changes to the 
previously issued 2 CFR part 215, to conform that part with the 
guidance published today.

DATES: The effective date for this interim final guidance is September 
30, 2005. To be considered in preparation of the final guidance, 
comments on the interim final guidance must be received by October 31, 
2005.

ADDRESSES: Due to potential delays in OMB's receipt and processing of 
mail sent through the U.S. Postal Service, we encourage respondents to 
submit comments electronically to ensure timely receipt. We cannot 
guarantee that comments mailed will be received before the comment 
closing date.
    Electronic mail comments may be submitted to: [email protected]. 
Please include ``OMB suspension and debarment guidance'' in the subject 
line of your e-mail message. Also, please include the full body of your 
comments in the text of the electronic message, as well as in an 
attachment. Please include your name, title, organization, postal 
address, telephone number, and e-mail address in the text of the 
message. Comments may also be submitted via facsimile to (202) 395-
3952.
    Comments may be mailed to Elizabeth Phillips, Office of Federal 
Financial Management, Office of Management and Budget, Room 6025, New 
Executive Office Building, 725 17th Street, NW., Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Elizabeth Phillips, Office of Federal 
Financial Management, Office of Management and Budget, telephone (202) 
395-3053 (direct) or (202) 395-3993 (main office) and e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION: Background. The guidance updated by this 
notice originated with Executive Order (E.O.) 12549, ``Debarment and 
Suspension.'' That Executive order, issued in 1986, gave government-
wide effect to each agency's nonprocurement debarment and suspension 
actions. Section 6 of the Executive order authorized OMB to issue 
guidance on nonprocurement debarment and suspension. Section 3 directed 
agencies to issue implementing regulations consistent with the 
guidance.
    The guidance has been revised twice since OMB first issued it in 
1987 [52 FR 20360]. In 1988, when the agencies finalized a common rule 
to implement OMB's 1987 guidance, OMB revised its

[[Page 51864]]

guidance [53 FR 19160] to conform with the agencies' rule. The second 
revision of the OMB guidance occurred in 1995 [60 FR 33036]. That 
revision conformed the guidance with the Federal agencies' update of 
the common rule to give reciprocal government-wide effect to both 
procurement and nonprocurement debarment and suspension actions, an 
update which implemented E.O. 12689 and section 2455 of the Federal 
Acquisition Streamlining Act.
    Today's notice conforms the guidance with the Federal agencies' 
November 26, 2003, update to the common rule [68 FR 66534], but does so 
in a way that will greatly improve the relationship between OMB's 
guidance and Federal agencies' implementing regulations. In the recent 
update, the Federal agencies recast the common rule in plain language 
and made other needed improvements. OMB did not issue a notice at that 
time to amend the guidance because we were considering two improvements 
to the approach we had used in the past.
    Adoptable guidance. The first improvement to our past approach is 
to publish the full text of the OMB guidance in a form suitable for 
agency adoption. The 1988 and 1995 notices amended the guidance to 
conform with updates to the common rule but the guidance was not 
published anywhere in full text as an OMB issuance. Thus, the full text 
of policies and procedures on nonprocurement debarment and suspension 
had to appear in each of 33 Federal agencies' separate codifications of 
the common rule. Today's notice, by publishing the OMB guidance in a 
form that Federal agencies can adopt, eliminates the need for each 
agency to repeat the full text in its own implementing regulation.
    This fundamentally different approach of adoptable guidance has 
three major advantages over the previous approach of having each agency 
codify the full-text of a common rule. Specifically, the new approach 
will:
     Make it easier for recipients of covered transactions or 
respondents in suspension or debarment actions to discern agency-to-
agency variations from the common rule language. When agencies 
published the common rule on nonprocurement debarment and suspension, 
each agency was allowed to have some agency-specific additions or 
exceptions to the government-wide language. Because each agency's 
variations are embedded in and integrated with the agency's publication 
of the full-text of the rule, it is difficult for a recipient or 
respondent that does business with multiple Federal agencies to 
identify the agency-to-agency variations in the language. To do so, it 
either must locate the original Federal Register notice in which the 
agencies published the common rule or carefully read and compare the 
agencies' separate codifications of the rule. With the new approach, 
however, each agency's implementation of the guidelines will be a brief 
rule that: (1) Adopts the guidance, giving it regulatory effect for 
that agency's activities; and (2) states any agency-specific additions, 
clarifications, and exceptions to the government-wide policies and 
procedures contained in the guidance.
     Reduce the volume of Federal regulations in the CFR. The 
33 individual agencies' separate codifications of the full text of the 
common rule currently require about 750 pages in each paper copy of 
each edition of the Code of Federal Regulations (i.e., about 750,000 
pages for every 1,000 paper copies of the CFR that are produced). We 
estimate that the new approach will reduce this by about six-fold, 
which reduces both burdens on the public and costs of maintaining the 
regulations.
     Streamline the process for updating the government-wide 
requirements on nonprocurement debarment and suspension. The process 
for updating a common rule is exceedingly complex and time consuming. 
The 33 Federal agencies must process the same rulemaking document 
before it can be sent to the OMB and published in the Federal Register, 
which can create long delays in updating the rule. With the new 
approach, OMB will publish proposed changes to the guidance in the 
Federal Register, with an opportunity for the public to comment. Once 
agencies have issued their regulations adopting the guidance, the 
process for future updates will be complete when OMB issues the final 
guidance. Agencies will not need to amend their regulations adopting 
the guidance.
    Publication of the guidance in 2 CFR. The second improvement to our 
past approach is to locate the OMB guidance in Subtitle A of the new 
Title 2 of the CFR, ``Grants and Agreements,'' that OMB established on 
May 11, 2004 [69 FR 26276]. Publishing the guidance in the CFR makes it 
very accessible to the affected public and, when agencies issue their 
new regulations adopting the guidance, will co-locate the OMB guidance 
in the same CFR title with the agency rules. We also will maintain a 
copy of the current guidance at the OMB Web site (http://www.whitehouse.gov/omb/circulars), for the benefit of individuals who 
would prefer to access it there.
    Structure and content of the guidance. Our intent is to issue OMB 
guidance that is substantively unchanged from the common rule issued by 
the Federal agencies in November 2003. We modified some of the 
structure and language of the common rule, however, to create a part 
that reads properly as OMB guidance to agencies rather than an agency 
regulation.
    The most significant structural change is in Sections 180.05 to 
180.45 of the document, which precede subpart A. The primary purpose of 
these sections is to provide OMB guidance to Federal agencies on how to 
use the guidance in the remainder of the part. Sections 180.20 through 
180.35, for example, tell Federal agencies that they must issue 
regulations to implement the guidance, identify some required and some 
optional content for those regulations, and specify where and when the 
agencies must issue the regulations. Most of these early sections have 
no counterparts in the November 2003 common rule, since it was designed 
to be an agency rule rather than OMB guidance.
    Following section 180.45, in subparts A through I of the part, is 
the guidance that an agency would adopt to specify its policies and 
procedures for nonprocurement debarment and suspension. Several 
sections in subpart A of the guidance have different section numbers 
than their counterpart sections in the common rule. The changed section 
numbers are due to the inclusion of the OMB guidance in sections 180.05 
through 180.45, which displaced and forced renumbering of sections 
--.25 to --.75 that preceded subpart A in the November 2003 common 
rule.
    The only other portion of the guidance where section numbers vary 
from the November 2003 common rule is subpart I, which contains 
definitions of terms. We replaced the defined term ``agency'' in the 
common rule with the term ``Federal agency'' in the OMB guidelines, 
which forced a reorganization of the definition sections in subpart I 
to keep the defined terms in alphabetical order.
    In one section of subpart A, we made a wording change to clarify 
the substance. Section --.135 of the November 2003 common rule stated 
that an agency, given an appropriate cause for debarment, could take an 
action to exclude ``any person who has been involved, is currently 
involved, or may reasonably be expected to be involved in a covered 
transaction.'' The corresponding language in the OMB guidelines, which 
is in section 180.150,

[[Page 51865]]

is ``any person who has been, is, or may reasonably be expected to be a 
participant or principal in a covered transaction.'' The revised 
language is intended to be more precise than the somewhat vague wording 
of the common rule.
    One language change throughout the guidelines is use of the term 
``Federal agency'' where agency responsibilities, authorities, and 
procedures are described. The common rule used the personal pronoun 
``we,'' which was appropriate in an agency rule but not in OMB 
guidance.
    We also dropped the references in sections 180.530 and 180.945 of 
the guidance (which had the same section numbers in the common rule) to 
the paper version of the list of excluded parties maintained by the 
General Services Administration (GSA). Section --.530 of the November 
2003 common rule stated that Federal agencies anticipated that the 
paper version of the list would be discontinued. The paper version no 
longer is available, so we deleted the references to it.
    Other minor wording changes throughout subparts A through I are to 
make the document read properly as OMB guidance. We have posted a 
source and destination table at the OMB Web site that shows which 
section in the OMB guidance corresponds to each section in the common 
rule and summarizes the more significant changes, none of which we 
believe to be substantive change.
    Invitation to comment. Our intent is to preserve in the OMB 
guidance the substantive content of the November 2003 common rule. 
Given that the agencies published the final common rule after an 
opportunity for public comment, we are publishing these guidelines as 
interim final guidelines, rather than proposing the substance for 
comment again. For future updates to this guidance, we will propose 
substantive changes with an opportunity for public comment, in 
accordance with Sec.  180.40 of the guidance. In soliciting comments on 
the interim final guidance, we are not seeking to revisit substantive 
issues raised by those earlier comments and resolved by the agencies 
during preparation of their final rule. However, we invite comments on 
any unintended changes we have made in the guidance relative to the 
November 2003 common rule.
    Next steps. We will finalize the guidance after resolving any 
comments received on the interim final version published in this 
notice. Each Federal agency that is a signatory to the common rule on 
nonprocurement debarment and suspension will: (1) Establish its chapter 
in Subtitle B of 2 CFR, consistent with the structure established for 
that title; (2) issue in that chapter of 2 CFR its brief rule adopting 
the OMB guidance and stating any additions, clarifications, or 
exceptions to the policies and procedures contained in the guidance; 
and (3) remove the November 2003 common rule from its own CFR title. We 
expect to complete the process in calendar year 2006.
    Conforming 2 CFR part 215 (OMB Circular A-110). We also are making 
the following two changes to 2 CFR part 215, in order to conform the 
OMB guidance in that part with the guidance on nonprocurement debarment 
and suspension:
     We dropped the reference in Sec.  215.13 to the common 
rule on nonprocurement debarment and suspension, in anticipation of 
agencies adoption of the guidance and removal of the common rule from 
their titles in the CFR.
     We revised Paragraph 8 in Appendix A to 2 CFR part 215, to 
correct: (1) The name of the Excluded Parties List System; and (2) the 
threshold for coverage of procurement contracts awarded by recipients 
of Federal financial assistance awards.

List of Subjects

2 CFR Part 180

    Administrative practice and procedure, Grant programs, Loan 
programs, Reporting and recordkeeping requirements.

2 CFR Part 215

    Accounting, Colleges and Universities, Grant programs, Hospitals, 
Nonprofit organizations, Reporting and recordkeeping requirements.

    Dated: August 8, 2005.
Joshua B. Bolten,
Director.

Authority and Issuance

0
For the reasons set forth above, the Office of Management and Budget 
amends 2 CFR, Subtitle A, as follows:

Chapter I--Office of Management and Budget Governmentwide Guidance for 
Grants and Agreements

0
1. A heading is added to chapter I to read as set forth above.
0
2. Part 180 is added to Chapter I, to read as follows:

PART 180--OMB GUIDELINES TO AGENCIES ON GOVERNMENTWIDE DEBARMENT 
AND SUSPENSION (NONPROCUREMENT)

Sec.
180.5 What does this part do?
180.10 How is this part organized?
180.15 To whom do these guidelines 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 
these guidelines?
180.30 Where does a Federal agency implement these guidelines?
180.35 By when must 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 to know 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?

[[Page 51866]]

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?
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 may I do if a lower tier participant fails to disclose 
the information required under Sec.  180.355 to the next higher 
tier?

Subpart E--Excluded Parties List System

180.500 What is the purpose of the Excluded Parties List System 
(EPLS)?
180.505 Who uses the EPLS?
180.510 Who maintains the EPLS?
180.515 What specific information is in the EPLS?
180.520 Who places the information into the EPLS?
180.525 Whom do I ask if I have questions about a person in the 
EPLS?
180.530 Where can I find the EPLS?

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 settle a debarment or suspension 
action?
180.640 May a settlement include a voluntary exclusion?
180.645 Do other Federal agencies know if an agency agrees to a 
voluntary exclusion?

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?
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 Excluded Parties List System (EPLS).
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 to Part 180--Covered Transactions

    Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 
12549, 3 CFR, 1986 Comp., p.189; E.O. 12689, 3 CFR, 1989 Comp., p. 
235.

[[Page 51867]]

Sec.  180.5  What does this part do?

    This part provides Office of Management and Budget (OMB) guidance 
for Federal agencies on the governmentwide debarment and suspension 
system for nonprocurement programs and activities.


Sec.  180.10  How is this part organized?

    This part is organized in 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 of 
this part.
    (b) Subparts A through I of this part contain uniform 
governmentwide 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 governmentwide 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.


Sec.  180.15  To whom does the guidance apply?

    The guidance provides OMB guidance only to Federal agencies. 
Publication of the guidance in the CFR does not change its nature--it 
is guidance and not regulation. Federal agencies' implementation of the 
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 required by Section 3 of E.O. 12549, 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 implementing regulation:
    (a) Must establish policies and procedures for that agency's 
nonprocurement debarment and suspension programs and activities that 
are consistent with the guidance. When adopted by a Federal agency, the 
provisions of the guidance has regulatory effect for that 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 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) an 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 
time of application; or a certification.
    (4) State whether the Federal agency's policy is to restrict 
participants' collection of certifications to verify that lower-tier 
participants are not excluded or disqualified (see Sec.  180.300(b)). 
If it is the policy, the regulation needs to require agency officials, 
when entering into covered transactions with primary tier participants, 
to communicate that policy.
    (5) 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 needs to require agency officials, 
when entering into covered transactions with primary tier participants, 
to communicate that requirement.
    (c) May also, at the agency's option:
    (1) Identify any specific types of transactions that 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.  180.330(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 at 
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.


Sec.  180.30  Where does a Federal agency implement these guidelines?

    Each Federal agency that participates in the governmentwide 
nonprocurement debarment and suspension system must issue a regulation 
implementing these guidelines within its chapter in subtitle B of this 
title of the Code of Federal Regulations.


Sec.  180.35  By when must a Federal agency implement these guidelines?

    Federal agencies must submit proposed regulations to the OMB for 
review within nine months of the issuance of these guidelines and issue 
final regulations within eighteen months of these guidelines.


Sec.  180.40  How are these guidelines maintained?

    The Interagency Committee on Debarment and Suspension established 
by section 4 of E.O. 12549 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 of this part--
    (a) Address disqualified persons only to--
    (1) Provide for their inclusion in the EPLS; and
    (2) State 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

[[Page 51868]]

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 the 
following table:

----------------------------------------------------------------------------------------------------------------
              In subpart . . .                             You will find provisions related to . . .
----------------------------------------------------------------------------------------------------------------
A...........................................  general information about Subparts A through I of this part.
B...........................................  the types of transactions that are covered by the Governmentwide
                                               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 the EPLS
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) The following table shows which subparts may be of special 
interest to you, depending on who you are:

------------------------------------------------------------------------
          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     A, B, F, G and I.
 action.
(3) a respondent in a debarment      A, B, F, H and I.
 action.
(4) a suspending official..........  A, B, E, F, G and I.
(5) a debarring official...........  A, B, D, F, H and I.
(6) an Federal agency official       A, B, D, E and I.
 authorized to enter into a covered
 transaction.
------------------------------------------------------------------------

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 to use. The section 
headings and text, often in the form of questions and answers, must be 
read together.
    (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 meaning. 
Those terms are defined in subpart I of this part. 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 
Regulation (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 of this part provide for reciprocal exclusion 
of persons who have been excluded under the Federal Acquisition 
Regulation, 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 of this part (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 or 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 from Federal programs persons who are not 
presently responsible.
    (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

[[Page 51869]]

    (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 excluded person to participate in a particular covered 
transaction. If the agency head or designee grants an exception, the 
exception must be in writing and state the reason(s) for deviating from 
the governmentwide 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?

    If any 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 FAR. Therefore, an exclusion under this part has reciprocal effect 
in Federal procurement transactions.


Sec.  180.145  Does an exclusion under the Federal procurement system 
affect a person's eligibility to participate in nonprocurement 
transactions?

    If any Federal agency excludes a person under the 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 reciprocal effect in 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 Governmentwide Excluded Parties List System (EPLS) to 
determine whether a person is excluded. The General Services 
Administration (GSA) maintains the EPLS and makes it available, as 
detailed in Subpart E of this part. 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 the EPLS.

Subpart B--Covered Transactions


Sec.  180.200  What is a covered transaction?

    A covered transaction is a nonprocurement or procurement 
transaction that is subject to the prohibitions of this part. 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.


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, if 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.


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 by non-Federal 
participants in 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 that is covered under Sec.  180.210, and the amount of the 
contract 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, regardless of the amount, always is 
a covered transaction, and it does not matter 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,--
    (1) It is awarded by a participant in a procurement transaction 
under a

[[Page 51870]]

nonprocurement transaction of a Federal agency that extends the 
coverage of paragraph (b)(1) of this section to any additional tier of 
contracts (see the diagram in the appendix to this part showing that 
optional lower tier coverage); and
    (2) The value of the subcontract exceeds or is expected to 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 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 the EPLS; or
    (b) Collecting a certification from that person if allowed by the 
Federal agency responsible for the transaction; 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) You as a participant 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) You as a participant may continue covered transactions with an 
excluded person if the transactions were in existence when the agency 
excluded the person. However, you are not required to continue the 
transactions, and you may consider termination. You should make a 
decision about 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) You as a participant may continue to use the services of an 
excluded person as a principal under a covered transaction if you were 
using the services of that person 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 make a decision about 
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?

    Yes, you as a participant are responsible for determining whether 
any of your principals of your covered transactions is excluded or 
disqualified from participating in the transaction.
    You may decide the method and frequency by which you do so. You 
may, but you are not required to, check the EPLS.


Sec.  180.325  What happens if I do business with an excluded person in 
a covered transaction?

    If as a participant 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 participation 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 
with whom 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 
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, your disclosure of 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 agency will consider the information when it 
determines whether to enter into the covered transaction. The agency 
will also consider any additional information or explanation that 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 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.

[[Page 51871]]

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.

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?

    If 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) You as a Federal agency official 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 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.  180.405  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) You as a Federal agency official 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. You are not required to continue the transactions, 
however, and you may consider termination. You should make a decision 
about whether to terminate and the type of termination action, if any, 
only after a thorough review to ensure that the action is proper.
    (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
    (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 agency's approval of 
the lower tier participant is required; or
    (d) Approve a principal in connection with a lower tier transaction 
if your 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) You as a Federal agency official must check the EPLS when you 
take any action listed in Sec.  180.425.
    (b) You must review 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?

    You as a Federal agency official must require each participant in a 
primary tier covered transaction to--
    (a) Comply with subpart C of this part as a condition of 
participation in the transaction; and
    (b) Communicate the requirement to comply with Subpart C of this 
part 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?

    If you as a Federal agency official 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

[[Page 51872]]

    (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?

    If you as a Federal agency official 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--Excluded Parties List System


Sec.  180.500  What is the purpose of the Excluded Parties List System 
(EPLS)?

    The EPLS 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 the EPLS?

    (a) Federal agency officials use the EPLS to determine whether to 
enter into a transaction with a person, as required under Sec.  
180.430.
    (b) Participants also may, but are not required to, use the EPLS 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 EPLS is available to the general public.


Sec.  180.510  Who maintains the EPLS?

    The General Services Administration (GSA) maintains the EPLS. 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 the EPLS.


Sec.  180.515  What specific information is in the EPLS?

    (a) At a minimum, the EPLS indicates--
    (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 Dun and Bradstreet Number (DUNS), or other similar code 
approved by the GSA, of the excluded or disqualified person, if 
available.
    (b)(1) The database for the EPLS includes a field for the Taxpayer 
Identification Number (TIN) (the social security number (SSN) for an 
individual) of an excluded or disqualified person.
    (2) Agencies disclose the SSN of an individual to verify the 
identity of an individual, 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 the EPLS?

    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 
the EPLS:
    (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 law;
    (c) Information about an excluded or disqualified person, generally 
within five working 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 the 
EPLS?

    If you have questions about a listed person in the EPLS, ask the 
point of contact for the Federal agency that placed the person's name 
into the EPLS. You may find the agency point of contact from the EPLS.


Sec.  180.530  Where can I find the EPLS?

    You may access the EPLS through the Internet, currently at http://epls.arnet.gov or http://www.epls.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 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 in eligibility for             specified period as a final
 procurement and nonprocurement           determination that a person is
 transactions, pending completion of an   not presently responsible.
 investigation or legal proceedings.
(b) Must--
    (1) Have adequate evidence that
     there may be a cause for debarment
     of a person; and
    (2) Conclude that immediate action   Must conclude, based on a
     is necessary to protect the          preponderance of the evidence,
     Federal interest                     that the person has engaged in
                                          conduct that warrants
                                          debarment.
(c) Usually imposes the suspension       Imposes debarment after giving
 first, and then promptly notifies the    the respondent notice of the
 suspended person, giving the person an   action and an opportunity to
 opportunity to contest the suspension    contest the proposed
 and have it lifted.                      debarment.
------------------------------------------------------------------------


[[Page 51873]]

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 of this part.
    (b) For debarment actions, a Federal agency uses the procedures in 
this subpart and Subpart H of this part.


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 e-mail 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 
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 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 or similar arrangement, 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 settle a debarment or suspension 
action?

    Yes, a Federal agency may settle a debarment or suspension action 
at any time if it is in the best interest of the Federal Government.


Sec.  180.640  May a settlement include a voluntary exclusion?

    Yes, if a Federal agency enters into a settlement with you in which 
you agree to be excluded, it is called a voluntary exclusion and has 
governmentwide 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 the EPLS.
    (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.

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. During this assessment, the suspending 
official may examine the basic documents, including grants, cooperative 
agreements, loan authorizations, contracts, and other relevant 
documents.
    (b) An indictment, conviction, civil judgment, or other official 
findings by Federal, State, or local bodies that determine factual and/
or legal matters, constitutes adequate evidence for purposes of 
suspension actions.
    (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.

[[Page 51874]]

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 conviction;
    (3) Other adequate evidence that you have committed irregularities 
which seriously reflect on the propriety of further Federal Government 
dealings with you; or
    (4) Conduct of another person that has been imputed to you, or your 
affiliation with a suspended or debarred person;
    (c) Of any other irregularities in terms sufficient to put you on 
notice without disclosing the Federal Government's evidence;
    (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 agency procedures governing suspension 
decisionmaking; and
    (g) Of the governmentwide effect of your suspension from 
procurement and nonprocurement programs and activities.


Sec.  180.720  How may I contest a suspension?

    If you as a respondent 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, but 
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 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 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 agency sends the notice by e-mail or 
five days after the agency sends it if the e-mail 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) 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) You as a respondent 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 finding 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 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 
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) You as a respondent 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 fact-finder 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

[[Page 51875]]

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, if proceedings are not 
initiated, a suspension may not exceed 12 months.
    (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 
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;
    (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, tax 
evasion, 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 an 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 settlement of 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 of so serious or compelling a 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) Of 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) Of the cause(s) under Sec.  180.800 upon which the debarring 
official relied for proposing your debarment;
    (d) Of the applicable provisions of this subpart, Subpart F of this 
part, and any other agency procedures governing debarment; and
    (e) Of the governmentwide effect of a debarment from procurement 
and nonprocurement programs and activities.


Sec.  180.810  When does a debarment take effect?

    Unlike 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?

    If you as a respondent 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, but any information provided orally that you 
consider important must also be submitted in writing for the official 
record.


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 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 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 agency sends the notice by e-mail or 
five days after the agency sends it if the e-mail 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

[[Page 51876]]

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) You as a respondent 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 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 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 fact-finder 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.  180.845  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 and/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 
governmentwide 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.
    (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.

[[Page 51877]]

    (k) The kind of positions held by the individuals involved in the 
wrongdoing.
    (l) Whether your organization took appropriate corrective action or 
remedial measures, such as establishing ethics training and 
implementing programs to prevent recurrence.
    (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) 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 
Regulation (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 the debarment decision or to reduce the time period or scope 
of the debarment. However, you must put 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 of this part, 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 which has been organized following the 
exclusion of a person which has 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, 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 1988 (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 Regulation (48 CFR chapter 1). A person so excluded is 
debarred.


Sec.  180.930  Debarring official.

    Debarring official means an agency official who is authorized to 
impose debarment. A debarring official is either--

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    (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. 276(a));
    (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 (3 CFR, 1973 Comp., p. 799).


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  Excluded Parties List System (EPLS).

    Excluded Parties List System (EPLS) means the list maintained and 
disseminated by the General Services Administration (GSA) containing 
the names and other information about persons who are ineligible.


Sec.  180.950  Federal agency.

    Federal agency means any United States executive department, 
military department, defense agency or any other agency of the 
executive branch. Other agencies of the Federal government are not 
considered ``agencies'' for the purposes of this part unless they issue 
regulations adopting the governmentwide 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 shall 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 proceedings means any criminal proceeding or any civil 
judicial proceeding, including a proceeding under the Program Fraud 
Civil Remedies Act (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.
    (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 e-mail or 
facsimile. (See Sec.  180. 615.)


Sec.  180.980  Participant.

    Participant means any person who submits a proposal for or who 
enters into a covered transaction, including an agent or representative 
of a participant.


Sec.  180.985  Person.

    Person means any individual, corporation, partnership, association, 
unit of government, or legal entity, however 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 other 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 an 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 an agency official who is 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 Regulation (48 CFR chapter 1) for a temporary 
period, pending completion of an 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 governmentwide effect.
    (b) Voluntarily excluded means the status of a person who has 
agreed to a voluntary exclusion.
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PART 215--[AMENDED]

0
3. The authority citation for part 215 continues to read as follows:

    Authority: 31 U.S.C. 503; 31 U.S.C. 1111; 41 U.S.C. 405; 
Reorganization Plan No. 2 of 1970; E.O. 11541, 35 FR 10737, 3 CFR, 
1966-1970, p. 939.

0
4. Section 215.13 is revised to read as follows:


Sec.  215.13  Debarment and suspension.

    Federal awarding agencies and recipients shall comply with Federal 
agency regulations implementing E.O.s 12549 and 12689, ``Debarment and 
Suspension.'' Under those regulations, certain parties who are 
debarred, suspended or otherwise excluded may not be participants or 
principals in Federal assistance awards and subawards, and in certain 
contracts under those awards and subawards.

0
5. Paragraph 8 of Appendix A to part 215 is revised to read as follows:

Appendix A to Part 215--Contract Provisions

* * * * *
    8. Debarment and Suspension (E.O.s 12549 and 12689)--A contract 
award with an amount expected to equal or exceed $25,000 and certain 
other contract awards (see 2 CFR 180.220) shall not be made to 
parties listed on the government-wide Excluded Parties List System, 
in accordance with the OMB guidelines at 2 CFR part 180 that 
implement

[[Page 51880]]

E.O.s 12549 (3 CFR, 1986 Comp., p. 189) and 12689 (3 CFR, 1989 
Comp., p. 235), ``Debarment and Suspension.'' The Excluded Parties 
List System contains the names of parties debarred, suspended, or 
otherwise excluded by agencies, as well as parties declared 
ineligible under statutory or regulatory authority other than E.O. 
12549.

[FR Doc. 05-16647 Filed 8-30-05; 8:45 am]
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