Federal Acquisition Regulation: Improving Consistency Between Procurement and Nonprocurement Procedures on Suspension and Debarment, 1043-1053 [2024-00172]

Agencies

• DEPARTMENT OF DEFENSE
• General Services Administration
• National Aeronautics and Space Administration

[Federal Register Volume 89, Number 6 (Tuesday, January 9, 2024)]
[Proposed Rules]
[Pages 1043-1053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00172]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 3, 9, 22, 23, 25, 33, and 52

[FAR Case 2019-015; Docket No. FAR-2019-0015; Sequence No. 1]
RIN 9000-AN98


Federal Acquisition Regulation: Improving Consistency Between 
Procurement and Nonprocurement Procedures on Suspension and Debarment

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to improve consistency between the 
procurement and nonprocurement procedures on suspension and debarment, 
based on the recommendations of the Interagency Suspension and 
Debarment Committee.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at the address shown below on or before 
March 11, 2024 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2019-015 to the 
Federal eRulemaking portal at https://www.regulations.gov by searching 
for ``FAR Case 2019-015''. Select the link ``Comment Now'' that 
corresponds with ``FAR Case 2019-015''. Follow the instructions 
provided on the ``Comment Now'' screen. Please include your name, 
company name (if any), and ``FAR Case 2019-015'' on your attached 
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the point of contact in the FOR 
FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    Instructions: Please submit comments only and cite ``FAR Case 2019-
015'' in all correspondence related to this case. Comments received 
generally will be posted without change to https://www.regulations.gov, 
including any personal and/or business confidential information 
provided. Public comments may be submitted as an individual, as an 
organization, or anonymously (see frequently asked questions at https://www.regulations.gov/faq). To confirm receipt of your comment(s), 
please check https://www.regulations.gov, approximately two to three 
days after submission to verify posting.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Zenaida Delgado, Procurement Analyst, at 202-969-7207 or by email 
at [email protected]. For information pertaining to status, 
publication schedules, or alternate instructions for submitting 
comments if https: www.regulations.gov cannot be used, contact the 
Regulatory Secretariat Division at 202-501-4755 or [email protected]. 
Please cite FAR Case 2019-015.

SUPPLEMENTARY INFORMATION:

I. Background

    The Government uses suspension and debarment procedures to protect 
its business interests. These procedures give Federal officials a means 
to bar parties from participation in certain transactions, while 
affording those parties due process. Over time, two separate suspension 
and debarment regulatory systems have evolved: (1) the FAR system 
within the Federal Acquisition Regulation for procurement matters; and 
(2) the Nonprocurement system within the Nonprocurement Common Rule 
(NCR), which covers grants, cooperative agreements, contracts of 
assistance, loans, and loan guarantees. The regulations for the FAR 
system are in subpart 9.4, Debarment, Suspension, and Ineligibility, of 
Title 48 in the Code of Federal Regulations (CFR). The Nonprocurement 
system is in Title 2, Part 180 of the CFR and directs Federal agencies 
to issue their own implementing regulations consistent with the NCR. 
Executive Order 12689, ``Debarment and Suspension'', published in the 
Federal Register at 54 FR 34131 on August 18, 1989, directed that 
suspension or debarment under either system has a reciprocal effect, 
thereby excluding parties that have been excluded under either system 
from both new procurement and nonprocurement transactions.
    This proposed rule seeks to change the FAR so that the two systems 
will be in closer alignment where appropriate, and incorporates 
existing practices within the suspension and debarment systems that are 
not currently in the FAR. The intent behind this alignment is to 
enhance transparency and consistency within the Government's suspension 
and debarment procedures.
    Currently, the two suspension and debarment systems are similar, 
but not identical. Although the two suspension and debarment rules at 
their core are designed toward the same end, follow the same general 
principles, and use essentially the same basic action notice and 
decision-making process, there are some differences between the rules. 
Some are definitional (e.g., the NCR definition of ``civil judgment'' 
is more comprehensive than the FAR definition), and some are procedural 
(e.g., the NCR and FAR procedures differ regarding deadlines for 
suspending and debarring officials to make exclusion decisions after 
the record closes). One difference which is not being changed in this 
rule is that a notice of proposed debarment under the FAR has the 
effect of immediately excluding the party but does not have this effect 
in the NCR. This is done in part in recognition of the necessity to 
continue to protect the Government's interests and taxpayer's money by 
minimizing business risk where procurements are involved. The FAR gives 
the suspending and debarring official two tools with immediate 
exclusion effect upon imposition--a

[[Page 1044]]

proposal for debarment and a suspension. Both have been in the FAR as 
recognized tools for decades, with different standards for use. The 
Federal Acquisition Regulatory Council (FAR Council) notes that 
contracts are more likely than nonprocurement transactions, such as 
Federal financial assistance, to require immediate exclusion when 
something goes wrong. See 2 CFR 180.810. Participants in nonprocurement 
transactions--while subject to the terms and conditions of a Federal 
award--are typically required to meet overall program goals and 
objectives, rather than perform to an exact contractual requirement. 
Federal financial assistance typically is for public purposes of 
support or economic stimulation, rather than for the direct benefit of 
the U.S. Government. See 31 U.S.C. 6303 to 6305. In this rule the FAR 
Council is continuing to keep both tools, so the suspending and 
debarring official will continue to have the discretion to choose 
whichever tool is appropriate for the particular situation. This rule 
also recognizes the use of a pre-notice letter, for the suspending and 
debarring official to consider using instead of an immediate exclusion.
    The importance of protecting the Government's interests is 
reflected in recurring Appropriations Act language since 2012 (see, 
e.g., Pub. L. 112-55, Pub. L. 112-74, and Pub. L. 117-328), which 
states that funds may not be used to enter into a contract with any 
corporation that was convicted of a felony criminal violation under 
Federal law within the preceding 24 months, unless a Federal agency has 
considered suspension or debarment of the corporation and has made a 
determination that further action is not necessary to protect the 
interests of the Government. In instances in which an agency has issued 
a proposed debarment under the FAR, a Federal agency has considered 
that further action may be necessary concerning that particular party, 
and therefore, the exclusion is consistent with statutory intent.

II. Discussion and Analysis

    The following summarizes the proposed changes to the FAR:
    The definition of ``suspending and debarring official'' is added at 
FAR 2.101, and standardized throughout the FAR, to denote the title of 
the Government official who is authorized to impose suspension and 
debarment actions for the Federal Government. New definitions have been 
added at FAR 9.403 for ``administrative agreement'', ``conviction'', 
``pre-notice letter'', and ``voluntary exclusion''. The current 
definition of ``civil judgment'' is also updated for the rule. The 
definitions of ``conviction'', ``voluntary exclusion'', and ``civil 
judgment'' are equivalent to the NCR definitions at 2 CFR 180.920, 
180.1020, and 180.915, respectively.
    The rationale for adding a definition of ``administrative 
agreement'' to the FAR is that over the years suspending and debarring 
officials have come to recognize the value of resolving present 
responsibility concerns through administrative agreements. Such 
agreements provide an alternative for the Government to implement 
protective measures short of exclusion, particularly for those 
contractors who are working toward present responsibility but need 
additional time to implement appropriate remedial measures to mitigate 
the business risk to the Government. Administrative agreements often 
require that the parties to the agreement take certain verifiable 
actions to demonstrate present responsibility within a prescribed 
timeframe, such as the implementation of enhanced internal corporate 
governance practices and procedures and/or the use of independent 
third-party monitors. In unique circumstances, an administrative 
agreement may include a contractor's agreement not to participate in 
certain procurement and/or nonprocurement transactions or in specific 
activities for the term of the administrative agreement or pending the 
implementation of appropriate remedial measures. Administrative 
agreements are fact-specific, and therefore vary between agencies and 
from one agreement to another. Currently, FAR part 9 mentions 
administrative agreements in the context of the statutory requirement 
that administrative agreements must be entered into the Federal Awardee 
Performance and Integrity Information System (FAPIIS) (see FAR 9.406-
3(f) and 9.407-3(e)). However, the FAR is silent as to its definition. 
Incorporating a definition will provide clarity as to what constitutes 
an administrative agreement.
    The rationale for a revised definition of ``conviction'' is that 
fact-finding proceedings should not be necessary when there is a 
sufficient evidentiary basis that the contractor was responsible for 
the misconduct for purposes of a proposed debarment. The definition of 
``conviction'' in 2 CFR 180.920 is adopted and means 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 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. The new definition is 
located at FAR 9.403 rather than FAR 2.101, so it applies only to FAR 
subpart 9.4.
    The new definition of ``pre-notice letter'' clarifies that the 
letter is not mandatory. Suspension and debarment procedures under both 
the FAR and the NCR recognize the authority of agencies to handle 
actions as informally as practicable consistent with principles of 
fundamental fairness (see FAR 9.406-3(b)(1) and 9.407-3(b)(1); 2 CFR 
180.610). Accordingly, suspending and debarring officials may choose to 
engage in preliminary discussions with potential respondents or their 
counsel under a variety of circumstances. Adding a definition of ``pre-
notice letter'' reflects existing practice. The Interagency Suspension 
and Debarment Committee has tracked the issuance of pre-notice letters 
in its reports since fiscal year 2009; the use of the letters has 
significantly increased over the past decade. Including a definition 
highlights another option that agencies may consider to resolve 
concerns involving contractor present responsibility, short of a formal 
notice under the suspension and debarment rules.
    A new definition is added for ``voluntary exclusion'' which applies 
throughout FAR part 9 to denote the procedures the Federal Government 
uses with contractors for these types of agreements. Voluntary 
exclusions are briefly described in the NCR at 2 CFR 180.640 and 
180.645. The FAR does not currently describe voluntary exclusions. A 
contractor may choose to agree to a voluntary exclusion so that it may 
represent itself in a more favorable light to various constituencies 
including but not limited to customers, creditors, and the public at 
large, by indicating that it chose to voluntarily exclude itself rather 
than be being involuntarily excluded by the Government through 
suspension or debarment. A contractor who is voluntarily excluded will 
be placed on the excluded parties list in the System for Award 
Management (SAM); the exclusion must have Governmentwide effect 
pursuant to the terms of the voluntary exclusion agreement.
    FAR 9.406-1(a) contains remedial measures and mitigating factors 
for the debarring official to consider. The suspension regulations 
incorporate the factors by reference at FAR 9.407-1(b)(2). The proposed 
rule seeks to add

[[Page 1045]]

seven new aggravating or mitigating factors that a suspending and 
debarring official should consider before arriving at a decision. The 
factors are equivalent to NCR factors at 2 CFR 180.860(a) through (f), 
(j), (k), (m), and (s). Unlike the FAR, the NCR makes it clear that 
aggravating factors may also be considered by the suspending and 
debarring official. Incorporating these aggravating factors will 
provide consistency between the two rules, as well as more guidance and 
increased options for the suspending and debarring official to consider 
when making present responsibility determinations.
    FAR 9.406-3(b)(1) and 9.407-3(b)(1) state that agencies may 
establish informal procedures governing the suspension and debarment 
decision-making process. Accordingly, this rule proposes changes that 
would authorize suspending and debarring officials to allow contractors 
and their representatives to present matters in opposition via 
additional methods of communication, such as telephone or internet, as 
such methods of communication are becoming more widely used and are 
consistent with principles of fundamental fairness. The new 
flexibilities are being added so that the Government and contractors 
will have additional means of communication when situations such as 
COVID-19 arise and the ability of the parties to meet in person is 
limited.
    FAR 9.406-3(c)(1) and 9.407-3(c) add language that will allow the 
suspending and debarring official the flexibility to issue a notice of 
proposed debarment or notice of suspension by mail, facsimile, email, 
or certified mail with return receipt requested. The new flexibilities 
are being added so that the Government will have additional means of 
communication when emergency situations such as COVID-19 arise, and 
when delivering notices to contractors abroad; the use of the new 
methods is not restricted to those situations. The NCR allows notice to 
be served in person, sent by certified mail or its equivalent, or sent 
electronically by email or facsimile; see 2 CFR 180.975. If a 
contractor makes a case for nonreceipt of notice, FAR 9.406-4 allows a 
debarred person to seek reinstatement by requesting the debarment 
period or extent of debarment be reduced.
    FAR 9.406-3(c)(2) adds language which requires the suspending and 
debarring official to send the notice of proposed debarment to the 
contractor, the contractor's identified counsel for purposes of the 
administrative proceedings, or the contractor's agent for service of 
process. This does not go quite as far as the NCR, which allows notice 
to be sent instead to a partner, officer, director, owner, or joint 
venture partner; see 2 CFR 180.615. For each specifically named 
affiliate, the suspending and debarring official must send the notice 
to the affiliate itself, the affiliate's identified counsel for 
purposes of the administrative proceedings, or the affiliate's agent 
for service of process. The language is added so that the Government 
will have the widest latitude in assuring that the notice is received. 
These are the minimum notice requirements.
    FAR 9.406-3(c)(3)(viii) and (ix), and 9.407-3(c)(7) and (8) require 
that the contractor respond with specific facts and other information, 
including identifying all of its affiliates. The language is 
substantively equivalent to the NCR language at 2 CFR 180.825 and 
180.730.
    FAR 9.406-3(d)(1) addresses the time a suspending and debarring 
official has to make a debarment decision in deciding actions based 
upon a conviction or civil judgment, or in which there is no genuine 
dispute over material facts. If no suspension is in effect, the time 
currently is 30 working days after receipt of any information and 
argument submitted by the contractor, unless the suspending and 
debarring official extends this period for good cause. Under this 
proposed rule, the 30 working days time frame would change to 45 days, 
which under the definition of ``day'' at FAR 2.101 means calendar days. 
The NCR language at 2 CFR 180.870(a) is 45 days after the closing of 
the official record. The FAR language is changed to reflect 45 days 
after the closing of the official record. In addition to harmonizing 
the NCR and the FAR, the change will avoid conflicts with how other 
countries compute working days, in light of national or religious 
holidays. Forty-five calendar days is roughly equivalent to thirty 
working days.
    FAR 9.406-3(e) and 9.407-3(d)(4) adds language that specifies that 
when the suspending and debarring official sends the notice of their 
decision, the notice procedures set forth in FAR 9.406-3(c)(1) and (2) 
shall be used. The new flexibilities are being added so that the 
Government will have additional means of communication when situations 
such as COVID-19 arise, and when delivering notices to contractors 
abroad; the use of the new methods is not restricted to those 
situations.
    FAR 9.406-3(f) and 9.407-3(e)(1) add the requirement for the 
suspending and debarring official to enter an administrative agreement 
into FAPIIS, whether the agreement resolves a suspension or debarment 
action or whether it was a potential suspension or debarment action. 
This requirement is being added to confirm that potential suspension or 
debarment actions are covered.
    FAR 9.406-3(g) and 9.407-3(f) add the requirement for the 
suspending and debarring official to enter voluntary exclusions into 
the excluded parties section of SAM as is currently required under the 
NCR. This requirement is being added so that selecting officials can 
review these types of exclusions before awards are made.
    FAR 9.406-3(h) and 9.407-3(g) confirm that, prior to initiating a 
proposed suspension or debarment, the suspending and debarring official 
may issue a pre-notice letter alerting the contractor to potential 
future action. The definition of ``pre-notice letter'' is added at FAR 
9.403. A suspending and debarring official is not required to send a 
pre-notice letter prior to initiating suspension or debarment action.
    Language is added to FAR 9.407-1(b)(1) explaining that the 
suspending and debarring official has wide discretion to impose 
suspensions when immediate action is necessary to protect the 
Government's interest. New language is also added to the section 
indicating that an indictment, 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. The 
new language is equivalent to the NCR language at 2 CFR 180.705(b) and 
(c).
    FAR 9.407-3(b)(2), (c)(6), and (d) revise the list of parties who 
can contribute advice on pending or contemplated legal proceedings, to 
include ``advice from the Department of Justice, a U.S. Attorney's 
office, State attorney general's office, or a State or local 
prosecutor's office.'' The language is equivalent to the NCR language 
at 2 CFR 180.735(a)(4). The FAR currently fails to take into account 
that suspensions can be based on State and local legal proceedings.
    FAR 9.407-4(b) adds to the parties who may request a six-month 
extension of a suspension, when legal proceedings have not been 
initiated within 12 months after the date of the suspension notice. The 
parties would change from ``an Assistant Attorney General'' to ``an 
office of a U.S. Assistant Attorney General, U.S. Attorney, or other 
responsible prosecuting official''. The language is equivalent to the 
NCR language at 2 CFR 180.760(b). Coordinating the need for an 
extension with an Assistant Attorney General as

[[Page 1046]]

directed by the FAR is burdensome and lengthy. On the other hand, 
agencies have reported that under the more flexible provisions of the 
NCR they have often coordinated extensions in a week.
    Notwithstanding the proposed and/or final rule, terms of voluntary 
exclusion and administrative agreements executed prior to the final 
rule will remain in effect.
    The proposed rule also makes conforming changes in FAR subparts 2, 
3, 22, 23, 25, 33, and 52.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Products (Including Commercially 
Available Off-the-Shelf (COTS) Items) or for Commercial Services

    This proposed rule does not create new solicitation provisions or 
contract clauses, nor does it change the applicability or burden of any 
existing provisions or clauses included in solicitations and contracts 
valued at or below the SAT, or for commercial products, including COTS 
items, or for commercial services.

IV. Expected Impact of the Rule

    This proposed rule seeks to improve consistency between the 
procurement and nonprocurement procedures on suspension and debarment. 
These changes in the FAR will bring the two systems into closer 
alignment, which will enhance transparency and consistency within the 
Government's suspension and debarment procedures. This will allow 
contractors a better understanding of how the two systems' procedures 
relate to each other.

V. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866, as amended by E.O. 14094, and 13563 
direct agencies to assess the 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 emphasizes the importance of 
quantifying both costs and benefits, of reducing costs, of harmonizing 
rules, and of promoting flexibility. This is not a significant 
regulatory action and, therefore, was not subject to review under 
Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated 
September 30, 1993.

VI. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this proposed rule, if finalized, 
to have a significant economic impact on a substantial number of small 
entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 
601-612, because the rule imposes minor procedural changes that are 
anticipated to have a positive impact on small entities. However, an 
Initial Regulatory Flexibility Analysis (IRFA) has been performed and 
is summarized as follows:

    DoD, GSA, and NASA are proposing to amend the FAR to improve 
consistency between the procurement and nonprocurement procedures on 
suspension and debarment, based on recommendations of the 
Interagency Suspension and Debarment Committee.
    The objective of this proposed rule is to more closely align the 
two systems of procurement and nonprocurement suspension and 
debarment to enhance transparency and consistency within the FAR 
system. Promulgation of the FAR is authorized by 40 U.S.C. 121(c); 
10 U.S.C. chapter 4 and 10 U.S.C. chapter 137 legacy provisions (see 
10 U.S.C. 3016); and 51 U.S.C. 20113.
    The Exclusions section of SAM does not contain data on the size 
of an excluded party as size is only specifically determined 
contract by contract based on the North American Industry 
Classification System (NAICS) code. When the entity is recorded in 
SAM as an excluded party, the suspending and debarring official 
identifies the entity as either (1) an individual, (2) firm, (3) 
vessel, or (4) special entity designation. Collection of unique 
identification numbers are on ``firms'' and optionally on ``special 
entity designations''.
    Data was analyzed by obtaining the list of entities that were 
excluded in fiscal years 2017, 2018, and 2019. Next, the entities on 
that list with unique identification numbers were compared against 
the SAM data to see if any were actively registered in those fiscal 
years for all awards. Lastly, the entities that would be considered 
small businesses based on their primary NAICS code were identified.
    The following is a breakdown of those distinct entities which 
had an entity registration in active status and concurrent active 
exclusion record per fiscal year (FY):

----------------------------------------------------------------------------------------------------------------
                                                      FY 2017         FY 2018         FY 2019         Median
                                                 ---------------------------------------------------------------
    Suspension and debarment--SAM exclusions         SB/total        SB/total        SB/total
                                                    exclusions      exclusions      exclusions         SB %
----------------------------------------------------------------------------------------------------------------
Small Business/Total Exclusions.................         152/203         189/253         180/245  ..............
Small Business Percentage.......................             75%             75%           73.4%              75
----------------------------------------------------------------------------------------------------------------

    The proposed rule does impose minor procedural changes in 
compliance requirements on contractors and minor process procedures 
for the Government. However, this alignment enhances transparency 
and consistency within the Government's suspension and debarment 
procedures reducing the complexities in understanding of the two 
distinct processes and procedural requirements for suspension and 
debarment Governmentwide.
    The proposed rule does not include any reporting or 
recordkeeping requirements. The rule does not contain any 
information collection requirements that require the approval of the 
Office of Management and Budget under the Paperwork Reduction Act 
(44 U.S.C. chapter 35) or other compliance requirements for small 
entities.
    44 U.S.C. 3518 and 5 CFR 1320.4(a)(2) give an exception for the 
collection of information during the conduct of an administrative 
action, investigation, or audit involving an agency against specific 
individuals or entities.
    This proposed rule does not duplicate, overlap, or conflict with 
any other Federal rules.
    DoD, GSA, and NASA were unable to identify any significant 
alternatives.

    The Regulatory Secretariat Division has submitted a copy of the 
IRFA to the Chief Counsel for Advocacy of the Small Business 
Administration. A copy of the IRFA may be obtained from the Regulatory 
Secretariat Division. DoD, GSA, and NASA invite comments from small 
business concerns and other interested parties on the expected impact 
of this rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite ``5 U.S.C. 610 (FAR Case 2019-
015)'', in correspondence.

VII. Paperwork Reduction Act

    This rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. 3501-3521).

[[Page 1047]]

List of Subjects in 48 CFR Parts 2, 3, 9, 22, 23, 25, 33, and 52

    Government procurement.


William F. Clark,
Director, Office of Government-Wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 3, 
9, 22, 23, 25, 33, and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 2, 3, 9, 22, 23, 25, 33, and 
52 continues to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. 
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 
20113.

PART 2--DEFINITIONS OF WORDS AND TERMS

0
2. Amend section 2.101, in paragraph (b)(2) by--
0
a. In the definition of ``Conviction'', removing ``nolo contendere.'' 
and adding ``nolo contendere. For use in subpart 9.4, see the 
definition at 9.403.'' in its place;
0
b. In the definition of ``Debarment'', removing ``a debarring'' and 
adding ``a suspending and debarring'' in its place;
0
c. Adding in alphabetical order the definition of ``Suspending and 
debarring official''; and
0
d. In the definition of ``Suspension'', removing ``suspending 
official'' and adding ``suspending and debarring official'' in its 
place.
    The addition reads as follows:


2.101  Definitions.

* * * * *
    (b) * * *
    (2) * * *
    Suspending and debarring official means--
    (1) An agency head; or
    (2) A designee authorized by the agency head to impose a suspension 
and/or a debarment.
* * * * *

PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST


3.104-7  [Amended]

0
3. Amend section 3.104-7 by removing from paragraph (d)(3) ``suspending 
or'' and adding ``suspending and'' in its place.

PART 9--CONTRACTOR QUALIFICATIONS


9.104-5  [Amended]

0
4. Amend section 9.104-5 by removing from paragraph (b)(3) ``suspending 
or'' and adding ``suspending and'' in its place.
0
5. Amend section 9.104-6 by--
0
a. Revising paragraph (b)(4); and
0
b. Removing from paragraph (c) ``debarred or suspended'' and adding 
``debarred, or suspended, or has agreed to a voluntary exclusion'' in 
its place.
    The revision reads as follows:


9.104-6  Federal Awardee Performance and Integrity Information System.

* * * * *
    (b) * * *
    (4) Since FAPIIS may contain information on any of the offeror's 
previous contracts and information covering a 5-year period, some of 
that information may not be relevant to a determination of present 
responsibility, e.g., a prior administrative action such as debarment, 
suspension, voluntary exclusion, or administrative agreement, that has 
expired or otherwise been resolved, or information relating to 
contracts for completely different products or services.
* * * * *


9.402  [Amended]

0
6. Amend section 9.402 by removing from paragraph (d) ``Interagency 
Committee on Debarment and Suspension'' and adding ``Interagency 
Suspension and Debarment Committee'' in its place.
0
7. Amend section 9.403 by--
0
a. Adding in alphabetical order the definition of ``Administrative 
agreement'';
0
b. Revising the definition of ``Civil judgment'';
0
c. Adding in alphabetical order the definition of ``Conviction'';
0
d. Removing the definition of ``Debarring official'';
0
e. Adding a sentence to the end of the definition of ``Nonprocurement 
Common Rule'';
0
f. Adding in alphabetical order the definition of ``Pre-notice 
letter'';
0
g. Removing the definition of ``Suspending official''; and
0
h. Adding in alphabetical order the definition of ``Voluntary 
exclusion''.
    The additions and revisions read as follows:


9.403  Definitions.

* * * * *
    Administrative agreement means an agreement between an agency 
suspending and debarring official and the contractor used to resolve a 
suspension or debarment proceeding, or a potential suspension or 
debarment proceeding.
* * * * *
    Civil judgment means the disposition of a civil action by any court 
of competent jurisdiction, whether by verdict, decision, settlement, 
stipulation, other disposition that creates a civil liability for the 
complained of wrongful acts, or a final determination of liability 
under the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801-
3812).
* * * * *
    Conviction means--
    (1) 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
    (2) Any other resolution that is the functional equivalent of a 
judgment establishing a criminal offense by a court of competent 
jurisdiction, 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.
* * * * *
    Nonprocurement Common Rule * * * See 2 CFR part 180 and agency 
enacting regulations.
    Pre-notice letter means a written correspondence issued to a 
potential respondent in a suspension or debarment matter, which does 
not immediately result in an exclusion or ineligibility. The letter is 
issued at the discretion of the suspending and debarring official. The 
letter is not a mandatory step in the suspension or debarment process.
* * * * *
    Voluntary exclusion means a contractor's written agreement to be 
excluded for a period under the terms of a settlement between the 
contractor and the suspending and debarring official of one or more 
agencies. A voluntary exclusion must have Governmentwide effect.


9.404  [Amended]

0
8. Amend section 9.404 by--
0
a. Removing from paragraph (b)(1) ``debarment, declared ineligible,'' 
and adding ``debarment, voluntarily excluded, declared ineligible,'' in 
its place;
0
b. Removing from paragraph (c)(3) introductory text ``exclusion 
accomplished'' and adding ``exclusion, including each voluntary 
exclusion, accomplished'' in its place; and
0
c. Removing from paragraph (c)(4) ``or proposed debarment taken by'' 
and adding ``proposed debarment, or voluntary exclusion taken or 
entered into by'' in its place.
0
9. Amend section 9.405 by--
0
a. Revising paragraph (a); and

[[Page 1048]]

0
b. Removing from paragraph (d) ``or proposed for debarment are'' and 
adding ``proposed for debarment, or voluntarily excluded, are'' in its 
place.
    The revision reads as follows:


9.405  Effect of listing.

    (a) Contractors debarred, suspended, proposed for debarment, or 
voluntarily excluded, are excluded from receiving contracts, and 
agencies shall not solicit offers from, award contracts to, or consent 
to subcontracts with these contractors, unless the agency head 
determines that there is a compelling reason for such action (see 
9.405-1(a)(2), 9.405-2, 9.406-1(d), 9.407-1(d), and 23.506(e)). 
Contractors debarred, suspended, proposed for debarment, or voluntarily 
excluded, are also excluded from conducting business with the 
Government as agents or representatives of other contractors.
* * * * *


9.405-1  [Amended]

0
10. Amend section 9.405-1 by--
0
a. Removing from paragraph (a) heading ``or proposed for debarment.'' 
and adding ``proposed for debarment, or voluntarily excluded.'' in its 
place;
0
b. Removing from paragraph (a)(1) ``or proposed debarment of'' and ``or 
proposed for debarment unless'' and adding ``proposed debarment, or 
voluntary exclusion, of'' and ``proposed for debarment, or voluntarily 
excluded, unless'' in their places, respectively; and
0
c. Removing from paragraph (a)(2) ``or proposed for debarment, unless'' 
and adding ``proposed for debarment, or voluntarily excluded, unless'' 
in its place.


9.405-2  [Amended]

0
11. Amend section 9.405-2 by--
0
a. Removing from paragraph (a) ``or proposed for debarment is'' and 
adding ``proposed for debarment, or voluntarily excluded, is'' in its 
place; and
0
b. Removing from paragraph (b) introductory text ``or proposed for 
debarment, unless'', ``or proposed for debarment as'', and ``or 
Proposed for Debarment to'' and adding ``proposed for debarment, or 
voluntarily excluded, unless'', ``proposed for debarment, or 
voluntarily excluded, as'' and ``Proposed for Debarment, or Voluntarily 
Excluded, to'' in their places, respectively.
0
12. Revise section 9.406-1 to read as follows:


9.406-1  General.

    (a) It is the suspending and debarring official's responsibility to 
determine whether debarment is in the Government's interest. The 
suspending and debarring official may, in the public interest, debar a 
contractor for any of the causes in 9.406-2, using the procedures in 
9.406-3. The existence of a cause for debarment, however, does not 
necessarily require that the contractor be debarred; the seriousness of 
the contractor's acts or omissions and any remedial measures, 
mitigating factors, or aggravating factors should be considered in 
making any debarment decision. Before arriving at any debarment 
decision, the suspending and debarring official should consider factors 
such as the following:
    (1) Whether the contractor had effective standards of conduct and 
internal control systems in place at the time of the activity which 
constitutes cause for debarment or had adopted such procedures prior to 
any Government investigation of the activity cited as a cause for 
debarment.
    (2) Whether the contractor brought the activity cited as a cause 
for debarment to the attention of the appropriate Government agency in 
a timely manner.
    (3) Whether the contractor has fully investigated the circumstances 
surrounding the cause for debarment and, if so, made the result of the 
investigation available to the suspending and debarring official.
    (4) Whether the contractor cooperated fully with Government 
agencies during the investigation and any court or administrative 
action.
    (5) Whether the contractor has paid or has agreed to pay all 
criminal, civil, and administrative liability for the improper 
activity, including any investigative or administrative costs incurred 
by the Government, and has made or agreed to make full restitution.
    (6) Whether the contractor has taken appropriate disciplinary 
action against the individuals responsible for the activity which 
constitutes cause for debarment.
    (7) Whether the contractor has implemented or agreed to implement 
remedial measures, including any identified by the Government.
    (8) Whether the contractor has instituted or agreed to institute 
new or revised review and control procedures and ethics training 
programs.
    (9) Whether the contractor has had adequate time to eliminate the 
circumstances within the contractor's organization that led to the 
cause for debarment.
    (10) Whether the contractor's management recognizes and understands 
the seriousness of the misconduct giving rise to the cause for 
debarment and has implemented programs to prevent recurrence.
    (11) Whether the contractor has a pattern or prior history of 
wrongdoing, the frequency of incidents and/or duration of the 
wrongdoing, and the actual or potential harm or impact that results, or 
may result, from the wrongdoing.
    (12) Whether and to what extent the contractor planned, initiated, 
or carried out the wrongdoing, and the kind of positions held by the 
individuals involved in the wrongdoing.
    (13) Whether the wrongdoing was pervasive within the contractor's 
organization.
    (14) Whether the contractor's principals tolerated the offense.
    (15) Whether the contractor is or has been excluded or disqualified 
by an agency of the Federal Government or has 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.
    (16) Whether the contractor has entered into an administrative 
agreement with a Federal agency or a similar agreement with 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.
    (17) Whether there are any other factors appropriate to the 
circumstances of a particular case.
    (b) The existence or nonexistence of any aggravating or mitigating 
factors or remedial measures such as set forth in paragraph (a) is not 
necessarily determinative of a contractor's present responsibility. 
Accordingly, if a cause for debarment exists, the contractor has the 
burden of demonstrating, to the satisfaction of the suspending and 
debarring official, its present responsibility and that debarment is 
not necessary.
    (c) Debarment constitutes debarment of all divisions or other 
organizational elements of the contractor, unless the debarment 
decision is limited by its terms to specific divisions, organizational 
elements, or commodities. The suspending and debarring official may 
extend the debarment decision to include any affiliates of the 
contractor if they are--
    (1) Specifically named; and
    (2) Given written notice of the proposed debarment and an 
opportunity to respond (see 9.406-3(c)).
    (d) A contractor's debarment, or proposed debarment, shall be 
effective throughout the executive branch of the Government, unless the 
agency head or a designee (except see 23.506(e)) states in writing the 
compelling reasons

[[Page 1049]]

justifying continued business dealings between that agency and the 
contractor.
    (e)(1) When the suspending and debarring official has authority to 
debar contractors from both acquisition contracts pursuant to this 
regulation and contracts for the purchase of Federal personal property 
pursuant to the Federal Management Regulations (FMR) 41 CFR part 102-38 
(see section 102-38.175, that official shall consider simultaneously 
debarring the contractor from the award of acquisition contracts and 
from the purchase of Federal personal property.
    (2) When debarring a contractor from the award of acquisition 
contracts and from the purchase of Federal personal property, the 
debarment notice shall so indicate and the appropriate FAR and FMR 
citations shall be included.


9.406-2  [Amended]

0
13. Amend section 9.406-2 by removing from the introductory text ``The 
debarring'' and adding ``The suspending and debarring'' in its place.
0
14. Amend section 9.406-3 by--
0
a. Removing from paragraph (a) ``the debarring official'' and adding 
``the suspending and debarring official'' in its place;
0
b. Adding two sentences to the end of paragraph (b)(1);
0
c. Revising paragraph (c);
0
d. Revising the heading of paragraph (d);
0
e. Revising paragraph (d)(1);
0
f. Removing from paragraph (d)(2)(i) ``The debarring official'' and 
adding ``The suspending and debarring official'' in its place;
0
g. Removing from paragraph (d)(2)(ii) ``The debarring official'' 
(twice) and adding ``The suspending and debarring official'' (twice) in 
their places;
0
h. Removing from paragraph (d)(2)(iii) ``The debarring official's'' and 
adding ``The suspending and debarring official's'' in its place;
0
i. Revising paragraphs (e) heading and (e)(1) introductory text;
0
j. Removing from paragraph (e)(1)(iv) ``9.406-1(c)'' and adding 
``9.406-1(d)'' in its place;
0
k. Removing from paragraph (e)(2) ``the debarring official'' and 
``certified mail, return receipt requested'' and adding ``the 
suspending and debarring official'' and ``the procedures set forth in 
9.406-3(c)(1) and (2)'' in their places, respectively;
0
l. Revising paragraph (f); and
0
m. Adding paragraphs (g) and (h).
    The revisions and additions read as follows:


9.406-3  Procedures.

* * * * *
    (b) * * *
    (1) * * * The suspending and debarring official may use flexible 
procedures to allow a contractor to present matters in opposition in 
person or remotely through appropriate technology. If so, the 
suspending and debarring official should change the notice in paragraph 
(c)(3)(iv) of this section to include those flexible procedures.
* * * * *
    (c) Notice of proposal to debar. A notice of proposed debarment 
shall be issued by the suspending and debarring official to the 
contractor and any specifically named affiliates.
    (1) The written notice shall be sent--
    (i) By mail, to the last known street address;
    (ii) To the last known email address; or
    (iii) By certified mail to the last known street address with 
return receipt requested.
    (2) The notice shall be sent--
    (i) To the contractor, the contractor's identified counsel for 
purposes of the administrative proceedings, or the contractor's agent 
for service of process; and
    (ii) For each specifically named affiliate, to the affiliate 
itself, the affiliate's identified counsel for purposes of the 
administrative proceedings, or the affiliate's agent for service of 
process.
    (3) The notice shall state--
    (i) That debarment is being considered;
    (ii) The reasons for the proposed debarment in terms sufficient to 
put the contractor on notice of the conduct or transaction(s) upon 
which it is based;
    (iii) The cause(s) relied upon under 9.406-2 for proposing 
debarment;
    (iv) That, within 30 days after receipt of the notice, the 
contractor may submit, in person, in writing, or through a 
representative, information and argument in opposition to the proposed 
debarment, including any additional specific information that raises a 
genuine dispute over the material facts;
    (v) The agency's procedures governing debarment decisionmaking;
    (vi) The effect of the issuance of the notice of proposed 
debarment;
    (vii) The potential effect of an actual debarment;
    (viii) That in addition to any information and argument in 
opposition to a proposed debarment, the contractor must identify--
    (A) Specific facts that contradict the statements contained in the 
notice of proposed debarment. Include any information about any of the 
factors listed in 9.406-1(a). A general denial is insufficient to raise 
a genuine dispute over facts material to the proposed debarment;
    (B) All existing, proposed, or prior exclusions and all similar 
actions taken by Federal, State, or local agencies, including 
administrative agreements that affect only those agencies;
    (C) 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
    (D) All of the contractor's affiliates.
    (ix) That if the contractor fails to disclose the information in 
9.406-3(c)(3)(viii), or provides false information, the agency taking 
the action may seek further criminal, civil or administrative action 
against the contractor, as appropriate.
    (d) Suspending and debarring official's decision.
    (1) In actions based upon a conviction or civil judgment, or in 
which there is no genuine dispute over material facts, the suspending 
and debarring official shall make a decision on the basis of all the 
information in the administrative record, including any submission made 
by the contractor. If no suspension is in effect, the decision shall be 
made within 45 days from the date that the official administrative 
record is closed, unless the suspending and debarring official extends 
this period for good cause. The official record closes upon the 
suspending and debarring official's receipt of final submissions, 
information and findings of fact, if any.
* * * * *
    (e) Notice of suspending and debarring official's decision. (1) If 
the suspending and debarring official decides to impose debarment, the 
contractor and any affiliates involved shall be given prompt notice by 
the procedures set forth in 9.406-3(c)(1) and (2)--* * *
    (f) Administrative agreements. (1) If the contractor enters into an 
administrative agreement with the Government in order to resolve a 
debarment or potential debarment proceeding, the suspending and 
debarring official shall access the website (available at https://www.cpars.gov, then select FAPIIS), enter the requested information, 
and upload the administrative agreement.
    (2) The suspending and debarring official is responsible for the 
timely and accurate submission of documentation reflecting the 
administrative agreement. The submission should be made within 3 
working days.
    (3) With regard to information that may be covered by a disclosure

[[Page 1050]]

exemption under the Freedom of Information Act, the suspending and 
debarring official shall follow the procedures at 9.105-2(b)(2)(iv).
    (g) Voluntary exclusions. (1) If the contractor enters into a 
voluntary exclusion with the Government in order to resolve a debarment 
or potential debarment matter, the suspending and debarring official 
shall access the website (available at https://www.sam.gov) and enter 
the requested information into the exclusions section of SAM (see 
9.404(c)(3)).
    (2) The suspending and debarring official is responsible for the 
timely and accurate submission of documentation reflecting the 
voluntary exclusion. The submission should be made within 3 working 
days.
    (3) Regarding information that may be covered by a disclosure 
exemption under the Freedom of Information Act, the suspending and 
debarring official shall follow the procedures at 9.105-2(b)(2)(iv).
    (h) Pre-notice letters. Prior to initiating a proposed debarment, a 
pre-notice letter may be issued at the discretion of the agency 
suspending and debarring official. A pre-notice letter is not required 
to initiate debarment under this subpart. (See 9.403.)


9.406-4  [Amended]

0
15. Amend section 9.406-4 by--
0
a. Removing from paragraphs (b) and (c) introductory text ``The 
debarring official'' and adding ``The suspending and debarring 
official'' in their places; and
0
b. Removing from paragraph (c)(5) ``the debarring official'' and adding 
``the suspending and debarring official'' in its place.
0
16. Amend section 9.407-1 by--
0
a. Removing from paragraph (a) ``suspending official'' and adding 
``suspending and debarring official'' in its place;
0
b. Revising paragraphs (b)(1) and (2);
0
c. Removing from paragraph (c) introductory text ``suspending 
official'' and adding ``suspending and debarring official'' in its 
place;
0
d. Revising paragraph (e)(1); and
0
e. Removing from paragraph ((e)(2) ``FAR and FPMR'' and adding ``FAR 
and FMR'' in its place.
    The revisions read as follows:


9.407-1  General.

* * * * *
    (b)(1) Suspension is a serious action to be imposed on the basis of 
adequate evidence, pending the completion of investigation or legal 
proceedings, when it has been determined that immediate action is 
necessary to protect the Government's interest. In deciding whether 
immediate action is necessary to protect the Government's interest, the 
suspending and debarring official has wide discretion. The suspending 
and debarring official may infer the necessity for immediate action to 
protect the Government's 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. In assessing the adequacy of the evidence, agencies should 
consider 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. 
This assessment should include an examination of basic documents such 
as contracts, inspection reports, and correspondence. An indictment 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.
    (2) The existence of a cause for suspension does not necessarily 
require that the contractor be suspended. The suspending and debarring 
official should consider the seriousness of the contractor's acts or 
omissions and may, but is not required to, consider remedial measures, 
mitigating factors, or aggravating factors, such as those set forth in 
9.406-1(a). A contractor has the burden of promptly presenting to the 
suspending and debarring official evidence of remedial measures or 
mitigating factors when it has reason to know that a cause for 
suspension exists. The existence or nonexistence of any remedial 
measures or aggravating or mitigating factors is not necessarily 
determinative of a contractor's present responsibility.
* * * * *
    (e)(1) When the suspending and debarring official has authority to 
suspend contractors from both acquisition contracts pursuant to this 
regulation and contracts for the purchase of Federal personal property 
pursuant to Federal Management Regulations (FMR) 41 CFR part 102-38 
(see section 102-38.175), that official shall consider simultaneously 
suspending the contractor from the award of acquisition contracts and 
from the purchase of Federal personal property.
* * * * *


9.407-2  [Amended]

0
17. Amend section 9.407-2 by removing from paragraphs (a) introductory 
text and (c) ``The suspending official'' and adding ``The suspending 
and debarring official'' in their places.
0
18. Amend section 9.407-3 by--
0
a. Removing from paragraph (a) ``suspending official'' and adding 
``suspending and debarring official'' in its place;
0
b. Adding two sentences to the end of paragraph (b)(1);
0
c. Removing from paragraph (b)(2) introductory text ``of Department of 
Justice advice, that'' and adding ``of advice from the Department of 
Justice, a U.S. Attorney's office, State attorney general's office, or 
a State or local prosecutor's office, that'' in its place;
0
d. Removing from paragraph (c) introductory text ``certified mail, 
return receipt requested--'' and adding ``the procedures set forth in 
9.406-3(c)(1) and (2)--'' in its place;
0
e. Removing from paragraph (c)(1) introductory text ``irregularities'' 
and adding ``irregularities--'' in its place;
0
f. Removing from paragraph (c)(1)(i) ``of a'' and ``Government or'' and 
adding ``Of a'' and ``Government; or'' in their places, respectively;
0
g. Removing from paragraph (c)(1)(ii) ``seriously'' and adding 
``Seriously'' in its place;
0
h. Removing from paragraph (c)(5) ``facts; and'' and adding ``facts;'' 
in its place;
0
i. Revise paragraph (c)(6);
0
j. Adding paragraphs (c)(7) and (8);
0
k. Revising paragraphs (d) introductory text and (d)(1);
0
l. Removing from paragraph (d)(2)(i) ``suspending official'' and adding 
``suspending and debarring official'' in its place;
0
m. Removing from paragraph (d)(2)(ii) ``suspending official'' (twice) 
and adding ``suspending and debarring official'' (twice) in their 
places;
0
n. Removing from paragraph (d)(2)(iii) ``suspending official's'' and 
adding ``suspending and debarring official's'' in its place;
0
o. Removing from paragraph (d)(3) introductory text ``suspending 
official'' and ``imposition of'' and adding ``suspending and debarring 
official'' and ``imposition of--'' in their places, respectively;
0
p. Removing from paragraph (d)(3)(i) ``suspension'' and ``agency or'' 
and adding ``Suspension'' and ``agency; or'' in their places, 
respectively;
0
q. Removing from paragraph (d)(3)(ii) ``debarment'' and adding 
``Debarment'' in its place;
0
r. Revising paragraph (d)(4);
0
s. Revising paragraph (e)(1) and (2);
0
t. Removing from paragraph (e)(3) ``suspending official'' and adding

[[Page 1051]]

``suspending and debarring official'' in its place; and
0
u. Adding paragraphs (f) and (g).
    The revisions and additions read as follows:


9.407-3  Procedures.

* * * * *
    (b) * * *
    (1) * * * The suspending and debarring official may use the 
flexible procedures in 9.406-3(b)(1). If so, the suspending and 
debarring official should change the notice in paragraph (c)(5) of this 
section to include those flexible procedures.
* * * * *
    (c) * * *
    (6) That additional proceedings to determine disputed material 
facts will be conducted unless--
    (i) The action is based on an indictment; or
    (ii) A determination is made, on the basis of advice by the 
Department of Justice, a U.S. Attorney's office, State attorney 
general's office, or a State or local prosecutor's office, that the 
substantial interests of the Government in pending or contemplated 
legal proceedings based on the same facts as the suspension would be 
prejudiced;
    (7) That, in addition to any information and argument in opposition 
to a suspension, the contractor must identify--
    (i) Specific facts that contradict the statements contained in the 
notice of suspension. Include any information about any of the factors 
listed in 9.406-1(a). A general denial is insufficient to raise a 
genuine dispute over facts material to the suspension;
    (ii) All existing, proposed, or prior exclusions and all similar 
actions taken by Federal, State, or local agencies, including 
administrative agreements that affect only those agencies;
    (iii) 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
    (iv) All of the contractor's affiliates; and
    (8) That if the contractor fails to disclose the information in 
9.407-3(c)(7), or provides false information, the agency taking the 
action may seek further criminal, civil or administrative action 
against the contractor, as appropriate.
    (d) Suspending and debarring official's decision. (1) The 
suspending and debarring official's decision shall be based on all the 
information in the administrative record, including any submission made 
by the contractor, for actions--
    (i) Based on an indictment;
    (ii) In which the contractor's submission does not raise a genuine 
dispute over material facts; or
    (iii) In which additional proceedings to determine disputed 
material facts have been denied on the basis of advice from the 
Department of Justice, a U.S. Attorney's office, State attorney 
general's office, or a State or local prosecutor's office.
* * * * *
    (4) Prompt written notice of the suspending and debarring 
official's decision shall be sent to the contractor and any affiliates 
involved, by the procedures set forth in 9.406-3(c)(1) and (2).
    (e)(1) If the contractor enters into an administrative agreement 
with the Government in order to resolve a suspension or potential 
suspension proceeding, the suspending and debarring official shall 
access the website (available at https://www.cpars.gov, then select 
FAPIIS), enter the requested information, and upload the administrative 
agreement.
    (2) The suspending and debarring official is responsible for the 
timely and accurate submission of documentation reflecting the 
administrative agreement. The submission should be made within 3 
working days.
* * * * *
    (f)(1) If the contractor enters into a voluntary exclusion with the 
Government in order to resolve a suspension or potential suspension 
proceeding, the suspending and debarring official shall access the 
website (available at https://www.sam.gov) and enter the requested 
information into the exclusions section of SAM (see 9.404(c)(3)).
    (2) The suspending and debarring official is responsible for the 
timely and accurate submission of documentation reflecting the 
voluntary exclusion. The submission should be made within 3 working 
days.
    (3) Regarding information that may be covered by a disclosure 
exemption under the Freedom of Information Act, the suspending and 
debarring official shall follow the procedures at 9.105-2(b)(2)(iv).
    (g) Pre-notice letter. Prior to initiating a suspension, a pre-
notice letter may be issued at the discretion of the agency suspending 
and debarring official. A pre-notice letter is not required to initiate 
suspension under this subpart. (See 9.403.)
0
19. Amend section 9.407-4 by--
0
a. Removing from paragraph (a) ``suspending official'' and adding 
``suspending and debarring official'' in its place;
0
b. Removing from paragraph (b) ``Assistant Attorney General requests'' 
and adding ``office of a U.S. Assistant Attorney General, U.S. 
Attorney, or other responsible prosecuting official requests'' in its 
place; and
0
c. Revising paragraph (c) to read as follows:


9.407-4  Period of suspension.

* * * * *
    (c) The suspending and debarring official shall notify the 
Department of Justice or other responsible prosecuting official of the 
proposed termination of the suspension, at least 30 days before the 12-
month period expires, to give that official an opportunity to request 
an extension on the Government's behalf.


9.409  [Amended]

0
20. Amend section 9.409 by removing from the text ``or Proposed for 
Debarment, in'' and adding ``Proposed for Debarment, or Voluntarily 
Excluded, in'' in its place.

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS


22.1504  [Amended]

0
21. Amend section 22.1504 by--
0
a. Removing from paragraph (b)(2) ``The suspending official'' and 
adding ``The suspending and debarring official'' in its place; and
0
b. Removing from paragraph (b)(3) ``The debarring official'' and adding 
``The suspending and debarring official'' in its place.


22.1704  [Amended]

0
22. Amend 22.1704 by removing from paragraph (c)(2)(i) introductory 
text ``suspending or debarring'' and adding ``suspending and 
debarring'' in its place.
0
23. Amend section 22.1802 by revising paragraph (e) to read as follows:


22.1802  Policy.

* * * * *
    (e) DHS and the Social Security Administration (SSA) may terminate 
a contractor's MOU and deny access to the E-Verify system in accordance 
with the terms of the MOU. If DHS or SSA terminates a contractor's MOU, 
the terminating agency must refer the contractor to a suspending and 
debarring official for possible suspension or debarment action. During 
the period between termination of the MOU and a decision by the 
suspending and debarring official whether to suspend or debar, the 
contractor is excused from its obligations under paragraph (b) of the 
clause at 52.222-54. If the contractor is suspended or debarred as a 
result of the MOU

[[Page 1052]]

termination, the contractor is not eligible to participate in E-Verify 
during the period of its suspension, debarment, or voluntary exclusion. 
If the suspending and debarring official determines not to suspend, or 
debar, or voluntarily exclude the contractor, then the contractor must 
reenroll in E-Verify.

PART 23--ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY 
TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE


23.506  [Amended]

0
24. Amend section 23.506 by removing from paragraph (c) ``suspension 
and debarment'' and adding ``suspending and debarring'' in its place.

PART 25--FOREIGN ACQUISITION


25.206  [Amended]

0
25. Amend section 25.206 by removing from paragraph (c)(4) ``suspending 
or debarring'' and ``Subpart 9.4'' and adding ``suspending and 
debarring'' and ``subpart 9.4'' in their places, respectively.


25.607  [Amended]

0
26. Amend section 25.607 by removing from paragraph (c)(4) ``suspending 
or debarring'' and adding ``suspending and debarring'' in its place.


25.702-3  [Amended]

0
27. Amend section 25.702-3 by--
0
a. Removing from paragraph (b) ``suspending official'' and ``Subpart'' 
and adding ``suspending and debarring official'' and ``subpart'' in 
their places, respectively; and
0
b. Removing from paragraph (c) ``The debarring'' and ``Subpart'' and 
adding ``The suspending and debarring'' and ``subpart'' in their 
places, respectively.


25.703-2  [Amended]

0
28. Amend section 25.703-2 by--
0
a. Removing from paragraph (b)(2) ``suspending official'' and adding 
``suspending and debarring official'' in its place; and
0
b. Removing from paragraph (b)(3) ``The debarring official'' and adding 
``The suspending and debarring official'' in its place.

PART 33--PROTESTS, DISPUTES, AND APPEALS


33.102  [Amended]

0
29. Amend section 33.102 by removing from paragraph (b)(3)(iii) 
``debarment official'' and ``Subpart'' and adding ``suspending and 
debarring official'' and ``subpart'' in their places, respectively.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
30. Amend section 52.209-6 by--
0
a. Revising the section heading and clause title;
0
b. Revising the date of the clause;
0
c. Removing from paragraph (c) ``suspended, or proposed for debarment 
by'' and adding ``suspended, proposed for debarment, or voluntarily 
excluded, by'' in its place;
0
d. Removing from paragraph (d) introductory text ``or proposed for 
debarment'' and adding ``proposed for debarment, or voluntarily 
excluded'' in its place; and
0
e. Removing from paragraph (d)(4) ``suspension, or proposed debarment'' 
and adding ``suspension, proposed debarment, or voluntary exclusion'' 
in its place.
    The revision reads as follows:


52.209-6  Protecting the Government's Interest When Subcontracting with 
Contractors Debarred, Suspended, Proposed for Debarment, or Voluntarily 
Excluded.

* * * * *

Protecting the Government's Interest When Subcontracting With 
Contractors Debarred, Suspended, Proposed for Debarment, or Voluntarily 
Excluded (Date)

* * * * *
0
31. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Revising paragraph (b)(12);
0
c. Revising the date of paragraphs (b)(32) and (40);
0
d. Revising the date of paragraph (e)(1)(xix); and
0
e. Amend Alternate II by revising the date of Alternate II and 
paragraph (R).
    The revisions read as follows:


52.212-5  Contract Terms and Conditions Required To Implement Statutes 
or Executive Orders-Commercial Products and Commercial Services.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders-Commercial Products and Commercial Services (Date)

* * * * *
    (b) * * *
    __(12) 52.209-6, Protecting the Government's Interest When 
Subcontracting with Contractors Debarred, Suspended, Proposed for 
Debarment, or Voluntarily Excluded. (Date)(31 U.S.C. 6101 note).
* * * * *
    __(32) 52.222-19, Child Labor-Cooperation with Authorities and 
Remedies (Date) (E.O. 13126).
* * * * *
    __(40) 52.222-54, Employment Eligibility Verification (Date). 
(Executive Order 12989). (Not applicable to the acquisition of 
commercially available off-the-shelf items or certain other types of 
commercial products or commercial services as prescribed in FAR 
22.1803.)
* * * * *
    (e)(1) * * *
    (xix) 52.222-54, Employment Eligibility Verification (Date) (E.O. 
12989).
* * * * *
    Alternate II. (Date) * * *
    (e)(1) * * *
    (ii) * * *
    (R) 52.222-54, Employment Eligibility Verification (Date) 
(Executive Order 12989).
* * * * *
0
32. Amend section 52.213-4 by--
0
a. Revising the date of the clause;
0
b. Revising the date of paragraph (b)(1)(iii) and removing ``in 2.101'' 
and adding ``in FAR 2.101'' in its place; and
0
c. Removing from paragraph (b)(2)(ii) ``or Proposed for Debarment (NOV 
2021)'' and adding ``Proposed for Debarment, or Voluntarily Excluded 
(Date)'' in its place.
    The revisions read as follows:


52.213-4  Terms and Conditions--Simplified Acquisitions (Other Than 
Commercial Products and Commercial Services).

* * * * *

Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Products and Commercial Services) ([Date)

* * * * *
    (b) * * *
    (1) * * *
    (iii) 52.222-19, Child Labor--Cooperation with Authorities and 
Remedies (Date) * * *
* * * * *
0
33. Amend section 52.222-19 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (d)(2) ``suspending official'' and 
``Subpart'' and adding ``suspending and debarring official'' and 
``subpart'' in their places, respectively; and
0
c. Removing from paragraph (d)(3) ``The debarring'' and ``Subpart'' and 
adding ``The suspending and debarring'' and ``subpart'' in their 
places, respectively.
    The revision reads as follows:


52.222-19  Child Labor--Cooperation with Authorities and Remedies.

* * * * *

[[Page 1053]]

Child Labor--Cooperation With Authorities and Remedies (Date)

* * * * *
0
34. Amend section 52.222-54 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (b)(5)(i) ``suspension or debarment'' and 
adding ``suspending and debarring'' in its place; and
0
c. Revising paragraph (b)(5)(ii).
    The revisions read as follows:


52.222-54  Employment Eligibility Verification.

* * * * *

Employment Eligibility Verification (Date)

* * * * *
    (b) * * *
    (5) * * *
    (ii) During the period between termination of the MOU and a 
decision by the suspending and debarring official whether to suspend or 
debar, the Contractor is excused from its obligations under paragraph 
(b) of this clause. If the suspending and debarring official determines 
not to suspend, debar, or voluntarily exclude the Contractor, then the 
Contractor must reenroll in E-Verify.
* * * * *
[FR Doc. 2024-00172 Filed 1-8-24; 8:45 am]
BILLING CODE 6820-EP-P