[Federal Register Volume 81, Number 149 (Wednesday, August 3, 2016)]
[Rules and Regulations]
[Pages 51125-51126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18280]
[[Page 51125]]
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DEPARTMENT OF STATE
48 CFR Parts 609 and 649
[Public Notice: 9599]
RIN 1400-AD90
Department of State Acquisition Regulation
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: This rule adopts as final certain changes proposed to the
Department of State Acquisition Regulation (DOSAR) to provide
procedural changes relating to the suspension and debarment process.
DATES: This rule is effective September 2, 2016.
FOR FURTHER INFORMATION CONTACT: Ms. Colleen Kosar, Policy Division,
Office of the Procurement Executive, A/OPE, 2201 C Street NW., Suite
1060, State Annex Number 15, Washington, DC 20520. Telephone: 703-516-
1685. Email: [email protected].
SUPPLEMENTARY INFORMATION: The Department of State published a Notice
of Proposed Rulemaking (NPRM), Public Notice 9479 at 81 FR 17121, March
28, 2016, with a request for comments. A summary of the proposed
changes and the reasons therefor were included in the NPRM. The comment
period closed May 27, 2016. The Department did not receive any
substantive comments on the rule. One correspondent raised matters that
were not relevant to this rulemaking. The Department is now adopting
the proposed rule as a final rule without change.
Regulatory Findings
Administrative Procedure Act
In accordance with the provisions of the Administrative Procedure
Act (APA) governing rules promulgated by federal agencies that affect
the public (5 U.S.C. 552 and 553), the Department published this
rulemaking as a proposed rule and invited public comment. In accordance
with the APA, this rulemaking will be effective 30 days after
publication.
Regulatory Flexibility Act
The Department of State, in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by
approving it, certifies that this rule will not have a significant
economic impact on a substantial number of small entities. This
determination was based on the fact that the changes proposed in this
update have no impact on small businesses. The number of small
businesses considered for suspension or debarment will not grow or
shrink as a result of the proposed changes. The Department analyzed the
suspension/debarment actions that occurred in FY14 and no small
businesses were impacted.
Unfunded Mandates Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any year and it will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by the Small Business
Regulatory Enforcement Act of 1996 (5 U.S.C. 801 et seq.). This rule
will not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and import markets.
This determination was based on the fact that the proposed changes are
intended to simplify the procedural aspects of the suspension and
debarment process. The rule does not place new requirements on contract
performance. The rule does not have a significant cost or
administrative impact on offerors or contractors.
Executive Orders 12866 and 13563
Executive Orders (E.O.) 12866 and 13563 direct agencies to assess
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts and equity). E.O. 13563
emphasized the importance of quantifying both costs and benefits, of
reducing costs, of harmonizing rules, and of promoting flexibility. The
Department of State does not consider this rule to be an ``economically
significant regulatory action'' under Executive Order 12866. The
Department has reviewed the regulation to ensure its consistency with
the regulatory philosophy and principles set forth in the Executive
Orders and finds that the benefits of updating this rule outweigh any
costs, which the Department assesses to be minimal.
Executive Order 13132
This rule will not have substantial direct effects on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement.
Executive Order 13175
The Department has determined that this rulemaking will not have
tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not pre-empt tribal law.
Accordingly, the requirements of Executive Order 13175 do not apply to
this rulemaking.
Paperwork Reduction Act
The rule imposes no new or revised information collections under
the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35).
List of Subjects in 48 CFR Parts 609 and 649
Administrative practice and procedure, Government procurement.
For the reasons stated in the preamble, the Department of State
amends 48 CFR chapter 6 as follows:
0
1. The authority citation for 48 CFR parts 609 and 649 continues to
read as follows:
Authority: 22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter
1.
PART 609--CONTRACTOR QUALIFICATIONS
0
2. Revise section 609.403-70 to read as follows:
609.403-70 DOSAR definitions.
Fact-finding official means the individual designated by the
debarring official to conduct additional proceedings as necessary
concerning disputed material facts.
609.405-1 [Amended]
0
3. In section 609.405-1, remove ``609.405-70'' and add in its place
``649.101-70''.
609.405-70 [Redesignated as 649.101-70 and Transferred]
0
4. Redesignate section 609.405-70 as 649.101-70 and transfer newly
redesiganted section 649.101-70 to part 649.
[[Page 51126]]
0
5. In section 609.406-3, revise paragraphs (a), (b)(2) through (7),
(c)(2), and (d) to read as follows:
609.406-3 Procedures.
(a) Investigation and referral. (1) DOS employees aware of any
cause that might serve as the basis for debarment shall refer those
cases through the contracting officer to the debarring official. The
debarring official shall refer to the Office of the Inspector General
all reported cases that involve possible criminal or fraudulent
activities for investigation by that office.
(2) Referrals for consideration of debarment shall include, as
appropriate and available--
(i) The cause for debarment (see FAR 9.406-2);
(ii) A statement of facts;
(iii) Copies of supporting documentary evidence and a list of all
necessary or probable witnesses, including addresses and telephone
numbers, together with a statement concerning their availability to
appear at a fact-finding proceeding and the subject matter of their
testimony;
(iv) A list of all contractors involved, either as principals or as
affiliates, including current or last known home and business addresses
and ZIP codes;
(v) A statement of the acquisition history with such contractors;
(vi) A statement concerning any known pertinent active or potential
criminal investigation, criminal or civil court proceedings, or
administrative claim before Boards of Contract Appeals; and
(vii) A statement from each DOS organizational element affected by
the debarment action as to the impact of a debarment on DOS programs.
(3) As deemed appropriate, the debarring official may conduct
investigations to supplement the information provided in the referral,
or may request investigations by the Office of the Inspector General or
other Department office.
(b) * * *
(2) In response to the debarment notice, if the contractor or its
representative notifies the debarring official within 30 days after
receipt of the notice that it wants to present information and
arguments in person to the debarring official, that official, or a
designee, shall chair such a meeting. The oral presentation shall be
conducted informally and a transcript need not be made. However, the
contractor may supplement its oral presentation with written
information and arguments for inclusion in the administrative record.
(3) Pursuant to FAR 9.406-3(b)(2), the contractor may request a
fact-finding proceeding.
(4) The debarring official shall designate a fact-finding official
and shall provide the fact-finding official with a copy of all
documentary evidence considered in proposing debarment. Upon receipt of
such material, the fact-finding official shall notify the contractor
and schedule a hearing date.
(5) In addition to the purposes provided in FAR 9.406-3(b)(2), the
hearing is intended to provide the debarring official with findings of
fact based on a preponderance of evidence submitted to the fact-finding
official and to provide the debarring official with a determination as
to whether a cause for debarment exists, based on the facts as found.
(6) The fact-finding proceeding shall be conducted in accordance
with procedures determined by the fact-finding official. The rules
shall be as informal as is practicable, consistent with FAR 9.406-3(b).
The fact-finding official is responsible for making the transcribed
record of the hearing, unless the contractor and the fact-finding
official agree to waive the requirement for a transcript.
(7) The fact-finding official shall deliver written findings and
the transcribed record, if made, to the debarring official. The
findings shall resolve any facts in dispute based on a preponderance of
the evidence presented and recommend whether a cause for debarment
exists.
(c) * * *
(2) When a determination is made to initiate action, the debarring
official shall provide to the contractor and any specifically named
affiliates written notice in accordance with FAR 9.406-3(c).
* * * * *
(d) Debarring official's decision. In addition to complying with
FAR 9.406-3(d) and (e), the debarring official shall provide single
copies of the decision to each DOS organizational element affected by
the decision.
609.407-3 [Amended]
0
6. In section 609.407-3:
0
a. In paragraph (b)(2), remove the word ``panel'' and add in its place
``official''.
0
b. In paragraph (d), remove ``and to the General Services
Administration in accordance with 609.404''.
PART 649--TERMINATION OF CONTRACTS
0
7. Add section 649.101 to read as follows:
649.101 Authorities and responsibilities.
649.101-70 [Amended]
0
8. Revise the heading of newly redesignated section 649.101-70 to read
as follows:
649.101-70 Termination action decisions after debarment.
* * * * *
Dated: July 22, 2016.
Eric N. Moore,
Acting, Procurement Executive, Department of State.
[FR Doc. 2016-18280 Filed 8-2-16; 8:45 am]
BILLING CODE 4710-24-P