Prohibition on Federal Protective Service Guard Services Contracts With Business Concerns Owned, Controlled, or Operated by an Individual Convicted of a Felony [HSAR Case 2009-001], 11512-11517 [E9-5795]
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Federal Register / Vol. 74, No. 51 / Wednesday, March 18, 2009 / Proposed Rules
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, as specified in
Executive Order 13132. This proposed
rule, if made final, would delay the
effective date of the NSR Aggregation
Amendments and allow for sufficient
time to conduct the reconsideration.
Thus, Executive Order 13132 does not
apply to these proposed regulation
revisions.
In the spirit of Executive Order 13121
and consistent with EPA policy to
promote communications between EPA
and state and local governments, EPA is
soliciting comments on this proposal
from state and local officials.
F. Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
This action does not have Tribal
implications as specified in Executive
Order 13175. No tribal government
currently has an approved tribal
implementation plan under the CAA to
implement the NSR program, therefore
the Federal government is currently the
NSR reviewing authority in Indian
country. Thus, tribal governments
should not experience added burden
from this proposed action. Thus,
Executive Order 13175 does not apply.
EPA specifically solicits additional
comment on the proposed revisions to
the regulations from Tribal officials.
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G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
EPA interprets EO 13045 (62 FR
19885, April 23, 1997) as applying only
to those regulatory actions that concern
health or safety risks, such that the
analysis required under section 5–501 of
the EO has the potential to influence the
regulation. This action is not subject to
EO 13045 because this proposal is
taking comment on delaying the
effective date of the NSR Aggregation
Amendments and allows for sufficient
time to conduct the reconsideration.
However, EPA solicits comments on
whether the proposal would result in an
adverse environmental effect that would
have a disproportionate effect on
children.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not subject to Executive
Order 13211 (66 FR 28355 (May 22,
2001)), because it is not a significant
regulatory action under Executive Order
12866.
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I. National Technology Transfer
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law No.
104–113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
This proposed rulemaking does not
involve technical standards. Therefore,
EPA is not considering the use of any
voluntary consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898 (59 FR 7629
(Feb. 16, 1994)) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this
proposed rule will not have
disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because it does not affect the level of
protection provided to human health or
the environment. The proposed revision
is taking comment on delaying the
effective date of the NSR Aggregation
Amendments and allows for sufficient
time to conduct the reconsideration. As
such, it does not adversely affect the
health or safety of minority or low
income populations.
K. Determination Under Section 307(d)
Pursuant to sections 307(d)(1)(E) and
307(d)(1)(V) of the CAA, the
Administrator determines that this
action is subject to the provisions of
section 307(d). Section 307(d)(1)(V)
provides that the provisions of section
307(d) apply to ‘‘such other actions as
the Administrator may determine.’’
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IV. Statutory Authority
The statutory authority for this action
is provided by sections 307(d)(7)(B),
101, 111, 114, 116, and 301 of the CAA
as amended (42 U.S.C. 7401, 7411, 7414,
7416, and 7601). This notice is also
subject to section 307(d) of the CAA (42
U.S.C. 7407(d)).
List of Subjects
40 CFR Part 51
Environmental protection,
Administrative practice and procedure,
Air pollution control, Baseline
emissions, Intergovernmental relations,
Aggregation, Major modifications,
Reporting and recordkeeping
requirements.
40 CFR Part 52
Environmental protection,
Administrative practice and procedure,
Air pollution control, Baseline
emissions, Intergovernmental relations,
Aggregation, Major modifications,
Reporting and recordkeeping
requirements.
Dated: March 12, 2009.
Lisa P. Jackson,
Administrator.
[FR Doc. E9–5996 Filed 3–17–09; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HOMELAND
SECURITY
48 CFR Parts 3009 and 3052
[Docket No. DHS–2009–0017]
RIN 1601–AA55
Prohibition on Federal Protective
Service Guard Services Contracts With
Business Concerns Owned,
Controlled, or Operated by an
Individual Convicted of a Felony
[HSAR Case 2009–001]
AGENCY: Department of Homeland
Security (DHS).
ACTION: Proposed rule with request for
comments.
SUMMARY: DHS is proposing to amend
the Homeland Security Acquisition
Regulation (HSAR) to prohibit DHS
from awarding a Federal Protective
Service (FPS) contract for guard services
to a business concern that is owned,
controlled, or operated by an individual
who has been convicted of a serious
felony. The rule is necessary to
implement the provisions of Public Law
110–356, the Federal Protective Service
Guard Contracting Reform Act of 2008.
DATES: Comment date: Interested parties
should submit written comments to the
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Department of Homeland Security,
Office of the Chief Procurement Officer,
Acquisition Policy and Legislation, on
or before April 17, 2009.
ADDRESSES: Please submit written
comments, identified by agency name
and docket number DHS–2009–0017, by
one of the following methods:
(1) Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
(2) By mail to the Department of
Homeland Security, Office of the Chief
Procurement Officer, Acquisition Policy
and Legislation, ATTN: Gloria Sochon,
245 Murray Drive, Bldg. 410 (RDS)
Washington, DC 20528.
FOR FURTHER INFORMATION CONTACT:
Gloria Sochon, Senior Procurement
Analyst, at (202) 447–3507 for
clarification of content. Please cite
HSAR Case 2008–002.
SUPPLEMENTARY INFORMATION:
I. Request for Comments
II. Background
III. Discussion of Proposed Rule
IV. Regulatory Requirements
A. Executive Order 12866 Assessment
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
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I. Request for Comments
Interested persons are invited to
participate in this rulemaking by
submitting written views and arguments
on all aspects of this rule. Comments
should be organized by HSAR Part, and
address the specific section that is being
commented on. All comments received
will be posted without change to https://
www.regulations.gov, including any
personal information provided. See
ADDRESSES above for information on
how to submit comments. If you submit
comments by mail, please submit them
in an unbound format, no larger than
81⁄2 by 11 inches, suitable for copying
and electronic filing. If you would like
DHS to acknowledge receipt of
comments submitted by mail, please
enclose a self addressed stamped post
card or envelope. DHS will consider all
comments and material received during
the comment period.
Docket: For access to the docket in
order to read background documents or
comments received, go to https://
www.regulations.gov.
II. Background
Public Law 110–356, the Federal
Protective Service Guard Contracting
Reform Act of 2008, prohibits DHS from
awarding an FPS contract for guard
services to any business concern that is
owned, controlled, or operated by an
individual who has been convicted of a
felony. The proposed rule would
implement this prohibition, identify
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which serious felonies may prohibit a
contractor from being awarded a
contract; require contractors to provide
information regarding any relevant
felony convictions when submitting
bids or proposals; provide guidelines for
the contracting officer to assess present
responsibility, mitigating factors, and
the risk associated with the previous
conviction, and allow the contracting
officer to award a contract under certain
circumstances.
The rule proposes that felonies which
cast doubt on the integrity or business
ethics of a business concern or are of a
nature that is inconsistent with the
mission of the Federal Protective
Service are serious felonies which will
prohibit a business concern from being
awarded an FPS contract for guard
services. Examples of serious felony
convictions may include, but are not
limited to: Fraud arising out of a
contract with the federal, state or local
government; bribery, graft or a conflict
of interest; threatened or actual harm to
a government official, family member or
government property; crimes of
violence; threat to national security;
commercial bribery; counterfeiting,
forgery or trafficking in vehicles the
identification numbers of which have
been altered; obstruction of justice,
perjury or subornation of perjury, or
bribery of a witness; felony for attempt
to evade or defeat Federal tax or felony
for willful failure to collect or pay over
Federal tax.
The proposed HSAR clause will
require offerors to disclose whether they
are or are not a business concern owned,
controlled or operated by an individual
convicted of a felony. If an offeror
represents that they are owned,
controlled or operated by an individual
convicted of a felony they will need to
submit a new award request with their
bid or proposal or a previously
approved award request. The award
request will provide the basis for the
request and details regarding the felony
conviction to include: Name and date of
birth of the individual convicted of a
felony, the age of the conviction, nature
and circumstances surrounding the
conviction, protective measures taken
by the individual or business concern to
reduce or eliminate the risk of further
misconduct, whether the individual has
made full restitution for the felony and
whether the individual has accepted
responsibility for past misconduct
resulting in the felony conviction.
The proposed clause also provides
that after award of an Indefinite
Delivery/Indefinite Quantity Contract,
Blanket Purchase Agreement, or other
contractual instrument that may result
in the issuance of task orders, calls, or
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11513
exercise of options to extend the term of
the contract, the contractor must
provide notice of a felony conviction of
any person who owns, controls, or
operates the business concern. The
contracting officer will review the
conviction and make a new
determination of eligibility prior to the
issuance of any task order, call, or
exercise of any option.
The proposed rule would allow the
contracting officer to review the basis
for the award request and assess the risk
associated with the felony conviction.
Under certain circumstances, the
contracting officer could award a
contract for guard services to a business
concern owned, controlled or operated
by an individual convicted of a felony.
Prior to such an award, the contracting
officer will need to obtain the approval
of the Head of the Contracting Activity
for U.S. Immigration and Customs
Enforcement.
III. Discussion of Proposed Rule
The proposed rule would revise
HSAR 48 CFR 3009.1 and add a clause
3052.209–XX to implement Public Law
110–356. It also makes technical
corrections to HSAR 48 CFR 3009.1.
IV. Regulatory Requirements
A. Executive Order 12866 Assessment
This is not a significant regulatory
action and, therefore, was not subject to
review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. The
rule is not a major rule under 5 U.S.C.
804.
B. Regulatory Flexibility Act
The Department of Homeland
Security certifies that the proposed rule
amending HSAR 48 CFR 3009.1 and
3052.209 will not, if promulgated, have
a significant impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq. The factual
basis for certification is presented in the
following analysis of the economic
effects of the proposed rule. Application
of the rule is limited to offerors or
contractors providing guard services
under the Federal Protective Service
contract security guard program.
Further, for these offerors and
contractors, the economic impact of the
rule is not expected to be substantial.
Currently, FPS administers a contract
inventory consisting of approximately
125 contract vehicles for guard services
with 46 different guard service vendors.
These FPS contracts provide 14,000
contract guards to protect 9,000 federal
facilities. In FY2008, DHS issued
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approximately 47 solicitations for guard
services and awarded 55 contracts. For
each solicitation issued, an average of
10 offerors responded.
The 46 vendors that provide guard
services to FPS represent less than one
percent of the industry. In 2005, the
Small Business Administration, based
on Bureau of Census data, estimated
that there were 4,853 firms in Security
Guards and Patrol Services Industry,
North American Industry Classification
System (NAICS) 561612 (Reference
Federal Register notices of November
10, 2005 (70 FR 68368) and June 30,
2006 (71 FR 37490)). The Central
Contractor Registration database (https://
www.ccr.gov) currently lists 5,784 active
records for NAICS 561612. Of these,
2,361, or 41 percent are identified as
small businesses.
Only those vendors that represent that
they are owned, controlled, or operated
by an individual convicted of a felony
will need to submit a new award request
with their bid or proposal or a
previously approved award request.
After award, a contractor will need to
disclose felony convictions that occur
during the term of the contract. DHS
estimates that this may affect ten
percent of offerors (fewer than 50 per
year ¥47 solicitations × 10 offerors per
solicitation × .1) and ten percent of
contractors (fewer than five per year—
46 guard service vendors × .1)). The
award request must provide the basis for
the request and details regarding the
felony conviction to include: The age of
the conviction, nature and
circumstances surrounding the
conviction, protective measures taken
by the individual or business concern to
reduce or eliminate the risk of further
misconduct, whether the individual has
made full restitution for the felony and
whether the individual has accepted
responsibility for past misconduct
resulting in the felony conviction.
Under certain circumstances, the
contracting officer may still award a
contract for guard services to a business
concern owned, controlled or operated
by an individual convicted of a felony.
Only those felonies that cast doubt on
the integrity or business ethics of the
business concern or are of a nature that
are inconsistent with the mission of the
Federal Protective Service will prohibit
a business concern from being awarded
an FPS contract for guard services.
Examples of serious felony convictions
may include, but are not limited to:
fraud arising out of a contract with the
federal, state or local government,
bribery, graft or a conflict of interest,
threatened or actual harm to a
government official, family member or
government property, crimes of
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violence, threat to national security,
commercial bribery, counterfeiting,
forgery or trafficking in vehicles the
identification numbers of which have
been altered, obstruction of justice,
perjury or subornation of perjury, or
bribery of a witness, felony for attempt
to evade or defeat Federal tax or felony
for willful failure to collect or pay over
Federal tax.
Therefore, DHS has not performed an
initial regulatory flexibility analysis.
DHS invites comments from small
businesses and other interested parties.
DHS also will consider comments from
small entities concerning the affected
HSAR subpart in accordance with 5
U.S.C. 610. Such comments should be
submitted separately and should cite
HSAR Case 2008–0002.
concern. DHS has determined that the
burden for the responses is within the
total estimated burden for information
requested from contractors in response
to OMB Control No. 1600–003 for
information requested from contractors
as part of post-contract award
administration by DHS acquisition
officials. DHS has 125 contracts for FPS
guard services. Of these, DHS estimates
that 10 percent will also submit a notice
of felony conviction. DHS estimates the
total burden on contractors to be 25
hours. This represents less than .001
percent of the total burden hours under
OMB Control No. 1600–0003.
C. Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. Chapter 35) applies because the
rule contains information collection
requirements.
(1) The clause at 3052.209–XX
requires each offeror for FPS contract
guard services to disclose whether it is
owned, controlled or operated by an
individual convicted of a felony. The
representation is necessary to evaluate
the offeror’s responsibility related to
performing the required services in
accordance with Public Law 110–356.
An offeror that is owned, controlled or
operated by a felon must also submit an
award request with supporting
documentation. DHS has determined
that the burden for the responses is
within the total estimated burden for
information requested from prospective
contractors in response to agency-issued
solicitations approved under OMB
Control No. 1600–0005. Based on
FY2008 statistics, DHS has
approximately 470 respondents to
solicitations for contract guard services
per year (47 solicitations with an
average of 10 offers per solicitation), all
of whom will make the representation.
Of these, DHS estimates that 10 percent
(47 per year) may submit award
requests. DHS estimates the total burden
on offerors to be 211.5 hours. This
represents .1 percent of the total burden
hours under OMB Control No. 1600–
0005.
(2) The clause at 3052.209–XX
requires the contractor to report felony
convictions after award of an Indefinite
Delivery/Indefinite Quantity Contract,
Blanket Purchase Agreement, or other
contractual instrument that may result
in the issuance of task orders, calls, or
exercise of options to extend the term of
the contract. The notice applies to a
felony conviction of any person who
owns, controls, or operates the business
Richard K. Gunderson,
Acting Chief Procurement Officer,
Department of Homeland Security.
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List of Subjects in 48 CFR Parts 3009
and 3052
Government procurement.
Accordingly, DHS amends 48 CFR
parts 3009 and 3052 as follows:
■ 1. The authority citation for 48 CFR
parts 3009 and 3052 continues to read
as follows:
■
Authority: 41 U.S.C. 418b (a) and (b).
PART 3009—CONTRACTOR
QUALIFICATIONS
2. Redesignate section 3009.104–70 as
section 3009.170 and redesignate
sections 3009.104–71 through
3009.104–75 as sections 3009.170–1
through 3009.170–5, respectively.
■ 3. Add sections 3009.171 through
3009.171–9 to subpart 3009.1 to read as
follows:
■
3009.171 Prohibition on Federal Protective
Service guard services contracts with
business concerns owned, controlled, or
operated by an individual convicted of a
felony.
3009.171–1
General.
Except as provided in HSAR 48 CFR
3009.171–6, the Department of
Homeland Security (DHS) may not enter
into a contract for guard services under
the Federal Protective Service (FPS)
guard services program with any
business concern owned, controlled, or
operated by an individual convicted of
a serious felony.
3009.171–2
Definitions.
As used in this subpart—
Business concern means a commercial
enterprise and the people who
constitute it.
Convicted of a felony means any
conviction of a felony in violation of
state or federal criminal statutes,
including the Uniform Code of Military
Justice, whether entered on a verdict or
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plea, including a plea of nolo
contendere, for which a sentence has
been imposed.
Felony means an offense punishable
by death or imprisonment for a term
exceeding one year.
Individual means any person,
corporation, partnership, or other entity
with a legally independent status.
3009.171–3 Determination of eligibility for
award of FPS guard service contracts.
(a) Contracting officers shall make a
determination of eligibility for award of
FPS guard service contracts upon
identification of the apparent successful
offeror as a result of a solicitation for
offers
(b) Contractors shall be required to
immediately notify the contracting
officer in writing upon any felony
conviction of personnel who own,
control or operate a business concern as
defined in (HSAR) 48 CFR 3009.171–4
at any time during the duration of an
Indefinite Delivery/Indefinite Quantity
Contract, Blanket Purchase Agreements,
or other contractual instrument that may
result in the issuance of task orders,
calls or option to extend the terms of a
contract. Upon notification of a felony
conviction the contracting officer will
review and make a new determination
of eligibility prior to the issuance of any
task order, call or exercise of an option.
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3009.171–4 Determination of ownership,
control, or operation.
(a) The extent to which an individual
owns, controls, or operates a business
concern is determined on a case-by-case
basis and depends on the specific facts
of the individual’s situation. Upon the
request of the contracting officer, and
prior to contract award, such individual
must provide documentation to the
contracting officer to use in determining
ownership, control, or operation. The
refusal to provide or to timely provide
such documentation may serve as
grounds to preclude contract award.
(b) The interest of a spouse or other
family member in the same business
concern will be imputed to the
individual in determining the extent to
which the individual owns, controls, or
operates the business concern.
(c) The following are examples of
when an individual owns, controls, or
operates a business concern. The
examples are not inclusive.
(1) The individual is the president or
chief executive officer of the business
concern.
(2) The individual is a senior level
executive within the business concern,
such as the Chief Financial Officer,
Chief Operating Officer or Chief
contracting official.
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(3) The individual is a general partner
in the business concern.
(4) An individual who is a general
partner in a limited partnership has
control. An individual with a limited
partnership interest of 25% or more has
ownership or control.
(5) An individual owns, controls, or
operates a business concern when the
individual has the:
(i) Power to vote, directly or
indirectly, 25% or more interest in any
class of voting stock of the business
concern;
(ii) Ability to direct in any manner the
election of a majority of the business
concern’s directors or trustees; or
(iii) Ability to exercise a controlling
influence over the business concern’s
management and policies.
3009.171–5
award.
Serious felonies prohibiting
(a) Not all felony convictions will
prohibit a business concern from being
awarded a contract for FPS guard
services. Those felonies that cast doubt
on the integrity or business ethics of the
business concern, or are of a nature that
are inconsistent with the mission of the
Federal Protective Service, are
considered serious felonies that will
prohibit contract award.
(b) The following are examples of
serious felonies prohibiting contract
award.
(1) Conviction of a felony involving
fraud arising out of a contract with the
federal, state or local government.
(2) Conviction of a felony for bribery,
graft or a conflict of interest.
(3) Conviction of a felony involving
threatened or actual harm to a
government official or family member.
(4) Conviction of a felony involving
threatened or actual harm to
government property.
(5) Conviction of a felony involving a
crime of violence.
(6) Conviction of a felony involving a
threat to national security.
(7) Conviction of a felony for
commercial bribery, counterfeiting,
forgery or trafficking in vehicles the
identification numbers of which have
been altered.
(8) Conviction of a felony for
obstruction of justice, perjury or
subornation of perjury, or bribery of a
witness.
(9) Conviction of a felony for attempt
to evade or defeat Federal tax.
(10) Conviction of a felony for willful
failure to collect or pay over Federal tax.
(11) Conviction on any other felony
that meets the criteria of paragraph (a)
of this subsection.
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3009.171–6
officers.
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Guidelines for contracting
(a) In accordance with FAR subpart
9.4, a contracting officer may not award
a contract for FPS guard services to any
business concern that is suspended,
debarred or proposed for debarment
unless the agency head determines that
there is a compelling reason for such
action.
(b) The contracting officer shall not
award a contract for FPS guard services
to any business concern that is
otherwise nonresponsible on the same
contract.
(c) The contracting officer shall not
award an FPS guard services contract to
any business concern that is owned,
controlled or operated by an individual
convicted of a serious felony as defined
in (HSAR) 48 CFR 3009.171–5 except as
provided in paragraph (e) of this
subsection.
(d) In making the determination of
(HSAR) 48 CFR 3009.171–7, the
contracting officer may not review the
fact of the conviction itself, but may
consider any information provided by
the individual or business concern, and
any information known to the
contracting officer. Factors that the
contracting officer may consider
include, but are not limited to:
(1) The age of the conviction.
(2) The nature and circumstances
surrounding the conviction.
(3) Protective measures taken by the
individual or business concern to
reduce or eliminate the risk of further
misconduct.
(4) Whether the individual has made
full restitution for the felony.
(5) Whether the individual has
accepted responsibility for past
misconduct resulting in the felony
conviction.
(e) The contracting officer may
determine that the conviction of an
otherwise serious felony is of such age,
or committed under such
circumstances, that the underlying
felonious misconduct no longer calls
into question the individual or business
concern’s integrity or business ethics, or
that it is not inconsistent with the
mission of the Federal Protective
Service. Any such determination must
be approved by the Head of the
Contracting Activity (HCA) for U.S.
Immigration and Customs Enforcement.
3009.171–7 Contract award approval
procedures for contractors with felony
convictions.
(a) The HCA for U.S. Immigration and
Customs Enforcement has sole
discretion to approve a request to permit
award of a contract for FPS guard
services to a business concern owned,
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controlled, or operated by an individual
convicted of a felony, for any reason
permitted by this regulation. This
authority is not delegable.
(b) A business concern owned,
operated or controlled by an individual
convicted of a felony may submit an
award request to the contracting officer.
The basis for such request shall be that
the subject felony is not a serious felony
as defined by this regulation, or that
such individual no longer owns,
controls or operates the business
concern. The business concern shall
bear the burden of proof for award
requests.
(c) A copy of the award approval
request with supporting documentation
or the approved request shall be
attached with the bid or proposal.
(d) An award approval request shall
contain the basis for the request. If the
basis for the request is that the subject
felony is not a serious felony as defined
by this regulation the award approval
request shall contain, at a minimum, the
following information:
(1) Name and Date of Birth of
Individual Convicted of a felony
(2) Date sentenced
(3) Statute/Charge
(4) Docket/Case Number
(5) Court/Jurisdiction
(6) The nature and circumstances
surrounding the conviction
(7) Protective measures taken by the
individual or business concern to
reduce or eliminate the risk of further
misconduct.
(8) Whether the individual has made
full restitution for the felony
(9) Whether the individual has
accepted responsibility for past
misconduct resulting in the felony
conviction.
(e) If the contracting officer is unable
to affirmatively determine that the
subject felony is not a serious felony as
defined by this regulation, or that such
individual no longer owns, controls or
operates the business concern, the
contracting officer shall deny the award
approval request and not forward such
request to the HCA for U.S. Immigration
and Customs Enforcement
(f) If the contracting officer
affirmatively determines that the subject
felony is not a serious felony as defined
by this regulation, or that such
individual no longer owns, controls or
operates the business concern, the
contracting officer shall refer the request
to the HCA for U.S. Immigration and
Customs Enforcement with a
recommendation that the request be
approved.
3009.171–8
Ineligible contractors.
Any business concern determined to
be ineligible for award under (HSAR) 48
VerDate Nov<24>2008
13:32 Mar 17, 2009
Jkt 217001
CFR 3009.171–4 shall be ineligible to
receive a contract for guard services
under the Federal Protective Service
guard program until such time as:
(a) The concern demonstrates that it
has addressed and resolved the issues
that resulted in the determination of
ineligibility, and
(b) Either:
(1) The contracting officer makes an
affirmative determination that the
business concern is not owned,
operated, or controlled by an individual
convicted of a felony based on current
information, or
(2) The HCA for U.S. Immigration and
Customs Enforcement approves an
award request under (HSAR) 48 CFR
3009.171–6.
3009.171–9
Clause.
Insert the clause (HSAR) 48 CFR
3052.209–XX, Prohibition on Federal
Protective Service guard services
contracts with business concerns
owned, controlled, or operated by an
individual convicted of a felony, in all
solicitations and contracts for FPS guard
services.
PART 3052—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
4. Add section 3052.209–XX as
follows:
■
3052.209–XX Prohibition on Federal
Protective Service guard services contracts
with business concerns owned, controlled,
or operated by an individual convicted of a
felony
As prescribed at (HSAR) 48 CFR
3009.171–9, insert the following clause:
Prohibition on Federal Protective Service
Guard Services Contracts With Business
Concerns Owned, Controlled, or Operated by
an Individual Convicted of a Felony (Date)
(a) Prohibitions. Section 2 of the Federal
Protective Service Guard Contracting Reform
Act of 2008, Public Law 110–356, prohibits
the Department of Homeland Security from
entering into a contract for guard services
under the Federal Protective Service (FPS)
guard services program with any business
concern owned, controlled, or operated by an
individual convicted of a serious felony.
(b) Definitions. As used in this clause:
Business concern means a commercial
enterprise and the people who constitute it.
Felony means an offense punishable by
death or imprisonment for a term exceeding
one year.
Convicted of a felony means any
conviction of a felony in violation of state or
federal criminal statutes, including the
Uniform Code of Military Justice, whether
entered on a verdict or plea, including a plea
of nolo contendere, for which a sentence has
been imposed.
PO 00000
Frm 00012
Fmt 4702
Sfmt 4702
Individual means any person, corporation,
partnership, or other entity with a legally
independent status.
(c) The extent to which an individual
owns, controls, or operates a business
concern is determined on a case-by-case basis
and depends on the specific facts of the
individual’s situation. Upon the request of
the Contracting Officer, and prior to contract
award, such individual must provide
documentation to the Contracting Officer to
use in determining ownership, control, or
operation. The refusal to timely provide such
documentation may serve as grounds to
preclude contract award.
(1) The interest of a spouse or other family
member in the same organization will be
imputed to the individual in determining the
extent to which the individual owns,
controls, or operates a business concern.
(2) The following are examples of when an
individual owns, controls, or operates a
business concern. The examples are not
inclusive.
(i) The individual is the president or chief
executive officer of the business concern.
(ii) The individual is a senior level
executive within the business concern, such
as the Chief Financial Officer, Chief
Operating Officer or Chief contracting
official.
(iii) The individual is a general partner in
the business concern.
(iv) An individual who is a general partner
in a limited partnership has control. An
individual with a limited partnership interest
of 25% or more has ownership or control.
(v) An individual owns, controls, or
operates a business concern when the
individual has the:
(A) Power to vote, directly or indirectly,
25% or more interest in any class of voting
stock of the business concern; Ability to
direct in any manner the election of a
majority of the business concern’s directors
or trustees; or
(B) Ability to exercise a controlling
influence over the business concern’s
management and policies.
(d) Award request.
(1) A business concern owned, operated or
controlled by an individual convicted of a
felony may submit an award request to the
Contracting Officer. The basis for such
request shall be that the subject felony is not
a serious felony as defined by this regulation,
or that such individual no longer owns,
controls or operates the business concern.
The business concern shall bear the burden
of proof for award requests.
(2) If the Contracting Officer, in his or her
sole discretion, is unable to affirmatively
determine that the subject felony is not a
serious felony as defined by this regulation,
or that such individual no longer owns,
controls or operates the business concern, the
Contracting Officer shall deny the award
request. The Head of the Contracting Activity
for U.S. Immigration and Customs
Enforcement has sole discretion to approve
an award request.
(3) A copy of the award request with
supporting documentation or the approved
award request shall be attached with the bid
or proposal.
(4) An award request shall contain the
basis for the request. If the basis for the
E:\FR\FM\18MRP1.SGM
18MRP1
tjames on PRODPC61 with PROPOSALS
Federal Register / Vol. 74, No. 51 / Wednesday, March 18, 2009 / Proposed Rules
request is that the subject felony is not a
serious felony as defined by this regulation
the award request shall contain, at a
minimum, the following information:
(i) Name and Date of Birth of Individual
Convicted of a felony.
(ii) Date sentenced.
(iii) Statute/Charge.
(iv) Docket/Case Number.
(v) Court/Jurisdiction.
(vi) The nature and circumstances
surrounding the conviction.
(vii) Protective measures taken by the
individual or business concern to reduce or
eliminate the risk of further misconduct.
(viii) Whether the individual has made full
restitution for the felony
(ix) Whether the individual has accepted
responsibility for past misconduct resulting
in the felony conviction.
(e) Privacy Statement. The offeror will
provide the following statement to any
individual whose information will be
submitted in an award request pursuant to
paragraph (d)(4) of this clause.
Privacy Act Notice. The collection of this
information is authorized by the Federal
Protective Service Guard Contracting Reform
Act of 2008 (Pub. L. 110–356) and
Department of Homeland Security (DHS)
implementing regulations at Homeland
Security Acquisition Regulation (HSAR) 48
CFR 3009.171. This information is being
collected to determine whether an individual
that owns, controls, or operates the business
concern submitting this offer has been
convicted of a felony that would disqualify
the offeror from receiving an award. This
information will be used by and disclosed to
DHS personnel and contractors or other
agents who require this information to
determine whether an award request should
be approved or denied. Additionally, DHS
may share this personal information with the
U.S. Justice Department and other Federal
and State agencies for collection,
enforcement, investigatory, or litigation
purposes, or as otherwise authorized
pursuant to its published Privacy Act system
of records notice. Submission of this
information by the individual is voluntary,
however, failure to provide it may result in
denial of an award to the offeror.
(f) Disclosure. The offeror under this
solicitation represents that [Check one]:
llit is not a business concern owned,
controlled, or operated by an individual
convicted of a felony; or
llit is a business concern owned,
controlled, or operated by an individual
convicted of a felony, and has submitted an
award request pursuant to paragraph (d) of
this clause.
(g) If a request is applied for, the offeror
shall attach the request with supporting
documentation, to the bid or proposal. The
supporting documentation may include
copies of prior award requests granted to the
offeror.
(h) The notification in this paragraph
applies if this is an indefinite delivery/
indefinite quantity contract, blanket purchase
agreement, or other contractual instrument
that may result in the issuance of task orders,
calls or option to extend the terms of a
contract. The Contractor must immediately
VerDate Nov<24>2008
13:32 Mar 17, 2009
Jkt 217001
notify the Contracting Officer in writing upon
any felony conviction of personnel who own,
control or operate a business concern as
defined in paragraph (c) of this clause at any
time during the performance of this contract.
Upon notification of a felony conviction the
Contracting Officer will review and make a
new determination of eligibility prior to the
issuance of any task order, call or exercise of
an option.
(End of clause)
[FR Doc. E9–5795 Filed 3–17–09; 8:45 am]
BILLING CODE 4410–10–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 622
[Docket No. 090220217–9226–01]
RIN 0648–AX66
Fisheries of the Caribbean, Gulf of
Mexico, and South Atlantic; Reef Fish
Resources of the Gulf of Mexico;
Commercial Sector of the Reef Fish
Fishery of the Gulf of Mexico; Control
Date
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Advance notice of proposed
rulemaking; consideration of a control
date.
SUMMARY: NMFS announces that it is
establishing a revised control date that
may be used to control future access to
the commercial sector of the reef fish
fishery operating in the exclusive
economic zone (EEZ) of the Gulf of
Mexico (Gulf). If changes to the
management regime are developed and
implemented under the MagnusonStevens Fishery Conservation and
Management Act (Magnuson-Stevens
Act), a control date could be used to
limit the number of participants in the
fishery. This announcement is intended,
in part, to promote awareness of the
potential eligibility criteria for future
access so as to discourage speculative
entry into the fishery while the Gulf of
Mexico Fishery Management Council
(Council) and NMFS consider whether
and how access to the commercial
sector of the reef fish fishery should be
controlled.
DATES: Comments must be received on
of before 5 p.m., eastern time, April 17,
2009.
ADDRESSES: You may submit comments,
identified by RIN 0648–AX66, by any
one of the following methods:
PO 00000
Frm 00013
Fmt 4702
Sfmt 4702
11517
• Electronic Submissions: Submit all
electronic public comments via the
Federal eRulemaking Portal https://
www.regulations.gov.
• Mail: Cynthia Meyer, NMFS
Southeast Regional Office, Sustainable
Fisheries Division, 263 13th Avenue
South, St. Petersburg, FL 33701.
Instructions: All comments received
are a part of the public record and will
generally be posted to https://
www.regulations.gov without change.
All Personal Identifying Information (for
example, name, address, etc.)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit Confidential Business
Information or otherwise sensitive or
protected information.
To submit comments through the
Federal e-Rulemaking Portal: https://
www.regulations.gov, enter ‘‘NOAANMFS–2009–0039’’ in the keyword
search, then select ‘‘Send a Comment or
Submission.’’ NMFS will accept
anonymous comments (enter N/A in the
required fields, if you wish to remain
anonymous). You may submit
attachments to electronic comments in
Microsoft Word, Excel, WordPerfect, or
Adobe PDF file formats only.
SUPPLEMENTARY INFORMATION: The
commercial sector of the Gulf reef fish
fishery is managed under the Fishery
Management Plan for the Reef Fish
Resources of the Gulf of Mexico (FMP).
The FMP was prepared by the Council,
and implemented under the authority of
the Magnuson-Stevens Act. A
moratorium on the issuance of new
commercial reef fish permits was
established by Amendment 4 to the
FMP in May 1992. The moratorium has
been maintained since that time with
the implementation of Amendments 9,
11, and 17. The Council implemented
Amendment 24 on August 17, 2005, to
replace the commercial reef fish permit
moratorium that was set to expire on
December 31, 2005, with a permanent
limited access system.
This notice would inform participants
in the Gulf reef fish fishery of the
Council’s intention to consider further
limiting access within the commercial
sector of the Gulf reef fish fishery.
Specifically, the Council may consider
creating additional restrictions
including limiting participation by gear
type or by specific species to only those
vessels or participants that have catch
histories in excess of some minimum
landings threshold. Should the Council
take such future action to further restrict
participation in the commercial sector
of the Gulf reef fish fishery, it intends
to use December 31, 2008, as a possible
control date regarding the eligibility of
E:\FR\FM\18MRP1.SGM
18MRP1
]]>Agencies
[Federal Register Volume 74, Number 51 (Wednesday, March 18, 2009)]
[Proposed Rules]
[Pages 11512-11517]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-5795]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOMELAND SECURITY
48 CFR Parts 3009 and 3052
[Docket No. DHS-2009-0017]
RIN 1601-AA55
Prohibition on Federal Protective Service Guard Services
Contracts With Business Concerns Owned, Controlled, or Operated by an
Individual Convicted of a Felony [HSAR Case 2009-001]
AGENCY: Department of Homeland Security (DHS).
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: DHS is proposing to amend the Homeland Security Acquisition
Regulation (HSAR) to prohibit DHS from awarding a Federal Protective
Service (FPS) contract for guard services to a business concern that is
owned, controlled, or operated by an individual who has been convicted
of a serious felony. The rule is necessary to implement the provisions
of Public Law 110-356, the Federal Protective Service Guard Contracting
Reform Act of 2008.
DATES: Comment date: Interested parties should submit written comments
to the
[[Page 11513]]
Department of Homeland Security, Office of the Chief Procurement
Officer, Acquisition Policy and Legislation, on or before April 17,
2009.
ADDRESSES: Please submit written comments, identified by agency name
and docket number DHS-2009-0017, by one of the following methods:
(1) Federal eRulemaking Portal: https://www.regulations.gov. Follow
the instructions for submitting comments.
(2) By mail to the Department of Homeland Security, Office of the
Chief Procurement Officer, Acquisition Policy and Legislation, ATTN:
Gloria Sochon, 245 Murray Drive, Bldg. 410 (RDS) Washington, DC 20528.
FOR FURTHER INFORMATION CONTACT: Gloria Sochon, Senior Procurement
Analyst, at (202) 447-3507 for clarification of content. Please cite
HSAR Case 2008-002.
SUPPLEMENTARY INFORMATION:
I. Request for Comments
II. Background
III. Discussion of Proposed Rule
IV. Regulatory Requirements
A. Executive Order 12866 Assessment
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
I. Request for Comments
Interested persons are invited to participate in this rulemaking by
submitting written views and arguments on all aspects of this rule.
Comments should be organized by HSAR Part, and address the specific
section that is being commented on. All comments received will be
posted without change to https://www.regulations.gov, including any
personal information provided. See ADDRESSES above for information on
how to submit comments. If you submit comments by mail, please submit
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable
for copying and electronic filing. If you would like DHS to acknowledge
receipt of comments submitted by mail, please enclose a self addressed
stamped post card or envelope. DHS will consider all comments and
material received during the comment period.
Docket: For access to the docket in order to read background
documents or comments received, go to https://www.regulations.gov.
II. Background
Public Law 110-356, the Federal Protective Service Guard
Contracting Reform Act of 2008, prohibits DHS from awarding an FPS
contract for guard services to any business concern that is owned,
controlled, or operated by an individual who has been convicted of a
felony. The proposed rule would implement this prohibition, identify
which serious felonies may prohibit a contractor from being awarded a
contract; require contractors to provide information regarding any
relevant felony convictions when submitting bids or proposals; provide
guidelines for the contracting officer to assess present
responsibility, mitigating factors, and the risk associated with the
previous conviction, and allow the contracting officer to award a
contract under certain circumstances.
The rule proposes that felonies which cast doubt on the integrity
or business ethics of a business concern or are of a nature that is
inconsistent with the mission of the Federal Protective Service are
serious felonies which will prohibit a business concern from being
awarded an FPS contract for guard services. Examples of serious felony
convictions may include, but are not limited to: Fraud arising out of a
contract with the federal, state or local government; bribery, graft or
a conflict of interest; threatened or actual harm to a government
official, family member or government property; crimes of violence;
threat to national security; commercial bribery; counterfeiting,
forgery or trafficking in vehicles the identification numbers of which
have been altered; obstruction of justice, perjury or subornation of
perjury, or bribery of a witness; felony for attempt to evade or defeat
Federal tax or felony for willful failure to collect or pay over
Federal tax.
The proposed HSAR clause will require offerors to disclose whether
they are or are not a business concern owned, controlled or operated by
an individual convicted of a felony. If an offeror represents that they
are owned, controlled or operated by an individual convicted of a
felony they will need to submit a new award request with their bid or
proposal or a previously approved award request. The award request will
provide the basis for the request and details regarding the felony
conviction to include: Name and date of birth of the individual
convicted of a felony, the age of the conviction, nature and
circumstances surrounding the conviction, protective measures taken by
the individual or business concern to reduce or eliminate the risk of
further misconduct, whether the individual has made full restitution
for the felony and whether the individual has accepted responsibility
for past misconduct resulting in the felony conviction.
The proposed clause also provides that after award of an Indefinite
Delivery/Indefinite Quantity Contract, Blanket Purchase Agreement, or
other contractual instrument that may result in the issuance of task
orders, calls, or exercise of options to extend the term of the
contract, the contractor must provide notice of a felony conviction of
any person who owns, controls, or operates the business concern. The
contracting officer will review the conviction and make a new
determination of eligibility prior to the issuance of any task order,
call, or exercise of any option.
The proposed rule would allow the contracting officer to review the
basis for the award request and assess the risk associated with the
felony conviction. Under certain circumstances, the contracting officer
could award a contract for guard services to a business concern owned,
controlled or operated by an individual convicted of a felony. Prior to
such an award, the contracting officer will need to obtain the approval
of the Head of the Contracting Activity for U.S. Immigration and
Customs Enforcement.
III. Discussion of Proposed Rule
The proposed rule would revise HSAR 48 CFR 3009.1 and add a clause
3052.209-XX to implement Public Law 110-356. It also makes technical
corrections to HSAR 48 CFR 3009.1.
IV. Regulatory Requirements
A. Executive Order 12866 Assessment
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. The rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Department of Homeland Security certifies that the proposed
rule amending HSAR 48 CFR 3009.1 and 3052.209 will not, if promulgated,
have a significant impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq. The factual basis for certification is presented in the following
analysis of the economic effects of the proposed rule. Application of
the rule is limited to offerors or contractors providing guard services
under the Federal Protective Service contract security guard program.
Further, for these offerors and contractors, the economic impact of the
rule is not expected to be substantial. Currently, FPS administers a
contract inventory consisting of approximately 125 contract vehicles
for guard services with 46 different guard service vendors. These FPS
contracts provide 14,000 contract guards to protect 9,000 federal
facilities. In FY2008, DHS issued
[[Page 11514]]
approximately 47 solicitations for guard services and awarded 55
contracts. For each solicitation issued, an average of 10 offerors
responded.
The 46 vendors that provide guard services to FPS represent less
than one percent of the industry. In 2005, the Small Business
Administration, based on Bureau of Census data, estimated that there
were 4,853 firms in Security Guards and Patrol Services Industry, North
American Industry Classification System (NAICS) 561612 (Reference
Federal Register notices of November 10, 2005 (70 FR 68368) and June
30, 2006 (71 FR 37490)). The Central Contractor Registration database
(https://www.ccr.gov) currently lists 5,784 active records for NAICS
561612. Of these, 2,361, or 41 percent are identified as small
businesses.
Only those vendors that represent that they are owned, controlled,
or operated by an individual convicted of a felony will need to submit
a new award request with their bid or proposal or a previously approved
award request. After award, a contractor will need to disclose felony
convictions that occur during the term of the contract. DHS estimates
that this may affect ten percent of offerors (fewer than 50 per year -
47 solicitations x 10 offerors per solicitation x .1) and ten percent
of contractors (fewer than five per year--46 guard service vendors x
.1)). The award request must provide the basis for the request and
details regarding the felony conviction to include: The age of the
conviction, nature and circumstances surrounding the conviction,
protective measures taken by the individual or business concern to
reduce or eliminate the risk of further misconduct, whether the
individual has made full restitution for the felony and whether the
individual has accepted responsibility for past misconduct resulting in
the felony conviction. Under certain circumstances, the contracting
officer may still award a contract for guard services to a business
concern owned, controlled or operated by an individual convicted of a
felony. Only those felonies that cast doubt on the integrity or
business ethics of the business concern or are of a nature that are
inconsistent with the mission of the Federal Protective Service will
prohibit a business concern from being awarded an FPS contract for
guard services. Examples of serious felony convictions may include, but
are not limited to: fraud arising out of a contract with the federal,
state or local government, bribery, graft or a conflict of interest,
threatened or actual harm to a government official, family member or
government property, crimes of violence, threat to national security,
commercial bribery, counterfeiting, forgery or trafficking in vehicles
the identification numbers of which have been altered, obstruction of
justice, perjury or subornation of perjury, or bribery of a witness,
felony for attempt to evade or defeat Federal tax or felony for willful
failure to collect or pay over Federal tax.
Therefore, DHS has not performed an initial regulatory flexibility
analysis. DHS invites comments from small businesses and other
interested parties. DHS also will consider comments from small entities
concerning the affected HSAR subpart in accordance with 5 U.S.C. 610.
Such comments should be submitted separately and should cite HSAR Case
2008-0002.
C. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies because
the rule contains information collection requirements.
(1) The clause at 3052.209-XX requires each offeror for FPS
contract guard services to disclose whether it is owned, controlled or
operated by an individual convicted of a felony. The representation is
necessary to evaluate the offeror's responsibility related to
performing the required services in accordance with Public Law 110-356.
An offeror that is owned, controlled or operated by a felon must also
submit an award request with supporting documentation. DHS has
determined that the burden for the responses is within the total
estimated burden for information requested from prospective contractors
in response to agency-issued solicitations approved under OMB Control
No. 1600-0005. Based on FY2008 statistics, DHS has approximately 470
respondents to solicitations for contract guard services per year (47
solicitations with an average of 10 offers per solicitation), all of
whom will make the representation. Of these, DHS estimates that 10
percent (47 per year) may submit award requests. DHS estimates the
total burden on offerors to be 211.5 hours. This represents .1 percent
of the total burden hours under OMB Control No. 1600-0005.
(2) The clause at 3052.209-XX requires the contractor to report
felony convictions after award of an Indefinite Delivery/Indefinite
Quantity Contract, Blanket Purchase Agreement, or other contractual
instrument that may result in the issuance of task orders, calls, or
exercise of options to extend the term of the contract. The notice
applies to a felony conviction of any person who owns, controls, or
operates the business concern. DHS has determined that the burden for
the responses is within the total estimated burden for information
requested from contractors in response to OMB Control No. 1600-003 for
information requested from contractors as part of post-contract award
administration by DHS acquisition officials. DHS has 125 contracts for
FPS guard services. Of these, DHS estimates that 10 percent will also
submit a notice of felony conviction. DHS estimates the total burden on
contractors to be 25 hours. This represents less than .001 percent of
the total burden hours under OMB Control No. 1600-0003.
List of Subjects in 48 CFR Parts 3009 and 3052
Government procurement.
Richard K. Gunderson,
Acting Chief Procurement Officer, Department of Homeland Security.
0
Accordingly, DHS amends 48 CFR parts 3009 and 3052 as follows:
0
1. The authority citation for 48 CFR parts 3009 and 3052 continues to
read as follows:
Authority: 41 U.S.C. 418b (a) and (b).
PART 3009--CONTRACTOR QUALIFICATIONS
0
2. Redesignate section 3009.104-70 as section 3009.170 and redesignate
sections 3009.104-71 through 3009.104-75 as sections 3009.170-1 through
3009.170-5, respectively.
0
3. Add sections 3009.171 through 3009.171-9 to subpart 3009.1 to read
as follows:
3009.171 Prohibition on Federal Protective Service guard services
contracts with business concerns owned, controlled, or operated by an
individual convicted of a felony.
3009.171-1 General.
Except as provided in HSAR 48 CFR 3009.171-6, the Department of
Homeland Security (DHS) may not enter into a contract for guard
services under the Federal Protective Service (FPS) guard services
program with any business concern owned, controlled, or operated by an
individual convicted of a serious felony.
3009.171-2 Definitions.
As used in this subpart--
Business concern means a commercial enterprise and the people who
constitute it.
Convicted of a felony means any conviction of a felony in violation
of state or federal criminal statutes, including the Uniform Code of
Military Justice, whether entered on a verdict or
[[Page 11515]]
plea, including a plea of nolo contendere, for which a sentence has
been imposed.
Felony means an offense punishable by death or imprisonment for a
term exceeding one year.
Individual means any person, corporation, partnership, or other
entity with a legally independent status.
3009.171-3 Determination of eligibility for award of FPS guard service
contracts.
(a) Contracting officers shall make a determination of eligibility
for award of FPS guard service contracts upon identification of the
apparent successful offeror as a result of a solicitation for offers
(b) Contractors shall be required to immediately notify the
contracting officer in writing upon any felony conviction of personnel
who own, control or operate a business concern as defined in (HSAR) 48
CFR 3009.171-4 at any time during the duration of an Indefinite
Delivery/Indefinite Quantity Contract, Blanket Purchase Agreements, or
other contractual instrument that may result in the issuance of task
orders, calls or option to extend the terms of a contract. Upon
notification of a felony conviction the contracting officer will review
and make a new determination of eligibility prior to the issuance of
any task order, call or exercise of an option.
3009.171-4 Determination of ownership, control, or operation.
(a) The extent to which an individual owns, controls, or operates a
business concern is determined on a case-by-case basis and depends on
the specific facts of the individual's situation. Upon the request of
the contracting officer, and prior to contract award, such individual
must provide documentation to the contracting officer to use in
determining ownership, control, or operation. The refusal to provide or
to timely provide such documentation may serve as grounds to preclude
contract award.
(b) The interest of a spouse or other family member in the same
business concern will be imputed to the individual in determining the
extent to which the individual owns, controls, or operates the business
concern.
(c) The following are examples of when an individual owns,
controls, or operates a business concern. The examples are not
inclusive.
(1) The individual is the president or chief executive officer of
the business concern.
(2) The individual is a senior level executive within the business
concern, such as the Chief Financial Officer, Chief Operating Officer
or Chief contracting official.
(3) The individual is a general partner in the business concern.
(4) An individual who is a general partner in a limited partnership
has control. An individual with a limited partnership interest of 25%
or more has ownership or control.
(5) An individual owns, controls, or operates a business concern
when the individual has the:
(i) Power to vote, directly or indirectly, 25% or more interest in
any class of voting stock of the business concern;
(ii) Ability to direct in any manner the election of a majority of
the business concern's directors or trustees; or
(iii) Ability to exercise a controlling influence over the business
concern's management and policies.
3009.171-5 Serious felonies prohibiting award.
(a) Not all felony convictions will prohibit a business concern
from being awarded a contract for FPS guard services. Those felonies
that cast doubt on the integrity or business ethics of the business
concern, or are of a nature that are inconsistent with the mission of
the Federal Protective Service, are considered serious felonies that
will prohibit contract award.
(b) The following are examples of serious felonies prohibiting
contract award.
(1) Conviction of a felony involving fraud arising out of a
contract with the federal, state or local government.
(2) Conviction of a felony for bribery, graft or a conflict of
interest.
(3) Conviction of a felony involving threatened or actual harm to a
government official or family member.
(4) Conviction of a felony involving threatened or actual harm to
government property.
(5) Conviction of a felony involving a crime of violence.
(6) Conviction of a felony involving a threat to national security.
(7) Conviction of a felony for commercial bribery, counterfeiting,
forgery or trafficking in vehicles the identification numbers of which
have been altered.
(8) Conviction of a felony for obstruction of justice, perjury or
subornation of perjury, or bribery of a witness.
(9) Conviction of a felony for attempt to evade or defeat Federal
tax.
(10) Conviction of a felony for willful failure to collect or pay
over Federal tax.
(11) Conviction on any other felony that meets the criteria of
paragraph (a) of this subsection.
3009.171-6 Guidelines for contracting officers.
(a) In accordance with FAR subpart 9.4, a contracting officer may
not award a contract for FPS guard services to any business concern
that is suspended, debarred or proposed for debarment unless the agency
head determines that there is a compelling reason for such action.
(b) The contracting officer shall not award a contract for FPS
guard services to any business concern that is otherwise nonresponsible
on the same contract.
(c) The contracting officer shall not award an FPS guard services
contract to any business concern that is owned, controlled or operated
by an individual convicted of a serious felony as defined in (HSAR) 48
CFR 3009.171-5 except as provided in paragraph (e) of this subsection.
(d) In making the determination of (HSAR) 48 CFR 3009.171-7, the
contracting officer may not review the fact of the conviction itself,
but may consider any information provided by the individual or business
concern, and any information known to the contracting officer. Factors
that the contracting officer may consider include, but are not limited
to:
(1) The age of the conviction.
(2) The nature and circumstances surrounding the conviction.
(3) Protective measures taken by the individual or business concern
to reduce or eliminate the risk of further misconduct.
(4) Whether the individual has made full restitution for the
felony.
(5) Whether the individual has accepted responsibility for past
misconduct resulting in the felony conviction.
(e) The contracting officer may determine that the conviction of an
otherwise serious felony is of such age, or committed under such
circumstances, that the underlying felonious misconduct no longer calls
into question the individual or business concern's integrity or
business ethics, or that it is not inconsistent with the mission of the
Federal Protective Service. Any such determination must be approved by
the Head of the Contracting Activity (HCA) for U.S. Immigration and
Customs Enforcement.
3009.171-7 Contract award approval procedures for contractors with
felony convictions.
(a) The HCA for U.S. Immigration and Customs Enforcement has sole
discretion to approve a request to permit award of a contract for FPS
guard services to a business concern owned,
[[Page 11516]]
controlled, or operated by an individual convicted of a felony, for any
reason permitted by this regulation. This authority is not delegable.
(b) A business concern owned, operated or controlled by an
individual convicted of a felony may submit an award request to the
contracting officer. The basis for such request shall be that the
subject felony is not a serious felony as defined by this regulation,
or that such individual no longer owns, controls or operates the
business concern. The business concern shall bear the burden of proof
for award requests.
(c) A copy of the award approval request with supporting
documentation or the approved request shall be attached with the bid or
proposal.
(d) An award approval request shall contain the basis for the
request. If the basis for the request is that the subject felony is not
a serious felony as defined by this regulation the award approval
request shall contain, at a minimum, the following information:
(1) Name and Date of Birth of Individual Convicted of a felony
(2) Date sentenced
(3) Statute/Charge
(4) Docket/Case Number
(5) Court/Jurisdiction
(6) The nature and circumstances surrounding the conviction
(7) Protective measures taken by the individual or business concern
to reduce or eliminate the risk of further misconduct.
(8) Whether the individual has made full restitution for the felony
(9) Whether the individual has accepted responsibility for past
misconduct resulting in the felony conviction.
(e) If the contracting officer is unable to affirmatively determine
that the subject felony is not a serious felony as defined by this
regulation, or that such individual no longer owns, controls or
operates the business concern, the contracting officer shall deny the
award approval request and not forward such request to the HCA for U.S.
Immigration and Customs Enforcement
(f) If the contracting officer affirmatively determines that the
subject felony is not a serious felony as defined by this regulation,
or that such individual no longer owns, controls or operates the
business concern, the contracting officer shall refer the request to
the HCA for U.S. Immigration and Customs Enforcement with a
recommendation that the request be approved.
3009.171-8 Ineligible contractors.
Any business concern determined to be ineligible for award under
(HSAR) 48 CFR 3009.171-4 shall be ineligible to receive a contract for
guard services under the Federal Protective Service guard program until
such time as:
(a) The concern demonstrates that it has addressed and resolved the
issues that resulted in the determination of ineligibility, and
(b) Either:
(1) The contracting officer makes an affirmative determination that
the business concern is not owned, operated, or controlled by an
individual convicted of a felony based on current information, or
(2) The HCA for U.S. Immigration and Customs Enforcement approves
an award request under (HSAR) 48 CFR 3009.171-6.
3009.171-9 Clause.
Insert the clause (HSAR) 48 CFR 3052.209-XX, Prohibition on Federal
Protective Service guard services contracts with business concerns
owned, controlled, or operated by an individual convicted of a felony,
in all solicitations and contracts for FPS guard services.
PART 3052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Add section 3052.209-XX as follows:
3052.209-XX Prohibition on Federal Protective Service guard services
contracts with business concerns owned, controlled, or operated by an
individual convicted of a felony
As prescribed at (HSAR) 48 CFR 3009.171-9, insert the following
clause:
Prohibition on Federal Protective Service Guard Services Contracts With
Business Concerns Owned, Controlled, or Operated by an Individual
Convicted of a Felony (Date)
(a) Prohibitions. Section 2 of the Federal Protective Service
Guard Contracting Reform Act of 2008, Public Law 110-356, prohibits
the Department of Homeland Security from entering into a contract
for guard services under the Federal Protective Service (FPS) guard
services program with any business concern owned, controlled, or
operated by an individual convicted of a serious felony.
(b) Definitions. As used in this clause:
Business concern means a commercial enterprise and the people
who constitute it.
Felony means an offense punishable by death or imprisonment for
a term exceeding one year.
Convicted of a felony means any conviction of a felony in
violation of state or federal criminal statutes, including the
Uniform Code of Military Justice, whether entered on a verdict or
plea, including a plea of nolo contendere, for which a sentence has
been imposed.
Individual means any person, corporation, partnership, or other
entity with a legally independent status.
(c) The extent to which an individual owns, controls, or
operates a business concern is determined on a case-by-case basis
and depends on the specific facts of the individual's situation.
Upon the request of the Contracting Officer, and prior to contract
award, such individual must provide documentation to the Contracting
Officer to use in determining ownership, control, or operation. The
refusal to timely provide such documentation may serve as grounds to
preclude contract award.
(1) The interest of a spouse or other family member in the same
organization will be imputed to the individual in determining the
extent to which the individual owns, controls, or operates a
business concern.
(2) The following are examples of when an individual owns,
controls, or operates a business concern. The examples are not
inclusive.
(i) The individual is the president or chief executive officer
of the business concern.
(ii) The individual is a senior level executive within the
business concern, such as the Chief Financial Officer, Chief
Operating Officer or Chief contracting official.
(iii) The individual is a general partner in the business
concern.
(iv) An individual who is a general partner in a limited
partnership has control. An individual with a limited partnership
interest of 25% or more has ownership or control.
(v) An individual owns, controls, or operates a business concern
when the individual has the:
(A) Power to vote, directly or indirectly, 25% or more interest
in any class of voting stock of the business concern; Ability to
direct in any manner the election of a majority of the business
concern's directors or trustees; or
(B) Ability to exercise a controlling influence over the
business concern's management and policies.
(d) Award request.
(1) A business concern owned, operated or controlled by an
individual convicted of a felony may submit an award request to the
Contracting Officer. The basis for such request shall be that the
subject felony is not a serious felony as defined by this
regulation, or that such individual no longer owns, controls or
operates the business concern. The business concern shall bear the
burden of proof for award requests.
(2) If the Contracting Officer, in his or her sole discretion,
is unable to affirmatively determine that the subject felony is not
a serious felony as defined by this regulation, or that such
individual no longer owns, controls or operates the business
concern, the Contracting Officer shall deny the award request. The
Head of the Contracting Activity for U.S. Immigration and Customs
Enforcement has sole discretion to approve an award request.
(3) A copy of the award request with supporting documentation or
the approved award request shall be attached with the bid or
proposal.
(4) An award request shall contain the basis for the request. If
the basis for the
[[Page 11517]]
request is that the subject felony is not a serious felony as
defined by this regulation the award request shall contain, at a
minimum, the following information:
(i) Name and Date of Birth of Individual Convicted of a felony.
(ii) Date sentenced.
(iii) Statute/Charge.
(iv) Docket/Case Number.
(v) Court/Jurisdiction.
(vi) The nature and circumstances surrounding the conviction.
(vii) Protective measures taken by the individual or business
concern to reduce or eliminate the risk of further misconduct.
(viii) Whether the individual has made full restitution for the
felony
(ix) Whether the individual has accepted responsibility for past
misconduct resulting in the felony conviction.
(e) Privacy Statement. The offeror will provide the following
statement to any individual whose information will be submitted in
an award request pursuant to paragraph (d)(4) of this clause.
Privacy Act Notice. The collection of this information is
authorized by the Federal Protective Service Guard Contracting
Reform Act of 2008 (Pub. L. 110-356) and Department of Homeland
Security (DHS) implementing regulations at Homeland Security
Acquisition Regulation (HSAR) 48 CFR 3009.171. This information is
being collected to determine whether an individual that owns,
controls, or operates the business concern submitting this offer has
been convicted of a felony that would disqualify the offeror from
receiving an award. This information will be used by and disclosed
to DHS personnel and contractors or other agents who require this
information to determine whether an award request should be approved
or denied. Additionally, DHS may share this personal information
with the U.S. Justice Department and other Federal and State
agencies for collection, enforcement, investigatory, or litigation
purposes, or as otherwise authorized pursuant to its published
Privacy Act system of records notice. Submission of this information
by the individual is voluntary, however, failure to provide it may
result in denial of an award to the offeror.
(f) Disclosure. The offeror under this solicitation represents
that [Check one]:
----it is not a business concern owned, controlled, or operated by
an individual convicted of a felony; or
----it is a business concern owned, controlled, or operated by an
individual convicted of a felony, and has submitted an award request
pursuant to paragraph (d) of this clause.
(g) If a request is applied for, the offeror shall attach the
request with supporting documentation, to the bid or proposal. The
supporting documentation may include copies of prior award requests
granted to the offeror.
(h) The notification in this paragraph applies if this is an
indefinite delivery/indefinite quantity contract, blanket purchase
agreement, or other contractual instrument that may result in the
issuance of task orders, calls or option to extend the terms of a
contract. The Contractor must immediately notify the Contracting
Officer in writing upon any felony conviction of personnel who own,
control or operate a business concern as defined in paragraph (c) of
this clause at any time during the performance of this contract.
Upon notification of a felony conviction the Contracting Officer
will review and make a new determination of eligibility prior to the
issuance of any task order, call or exercise of an option.
(End of clause)
[FR Doc. E9-5795 Filed 3-17-09; 8:45 am]
BILLING CODE 4410-10-P
