Subpart 509.4 - Debarment, Suspension, and Ineligibility
This subpart applies to all the following:
(a) Acquisitions of personal property, nonpersonal services, construction, and space in buildings.
(b) Acquisition of transportation services (Federal Management Regulation (FMR) Parts 102-117 and 102-118 (41 CFR parts 102-117 and 102-118)).
(c) Contracts for disposal of personal property (FMR Parts 102-36 through 102-38 (41 CFR parts 102-36 through 102-38)).
(d) Covered transactions as defined by 41 CFR 105-68.
“Fact-finding official,” means the Suspension and Debarment Official or a designee.
“Notice” means a letter sent by certified mail, return receipt requested, to the last known address of a party, its counsel, or agent for service of process. In the case of a business, such notice may be sent to any partner, principal officer, director, owner or co-owner, or joint venturer. If no return receipt is received within 10 calendar days of mailing, receipt will then be presumed.
509.405 Effect of listing.
509.405-1 Continuation of current contracts.
(a) When a contractor appears as a current exclusion in the System for Award Management (SAM), consider terminating a contract under any of the following circumstances:
(1) Any circumstances giving rise to the debarment or suspension also constitute a default in the contractor’s performance of the contract.
(2) The contractor presents a significant risk to the Government in completing the contract.
(3) The conduct that provides the cause of the suspension, proposed debarment, or debarment involved a GSA contract.
(b) Before terminating a contract when a contractor appears as a current exclusion in the SAM, consider the following factors:
(1) Seriousness of the cause for debarment or suspension.
(2) Extent of contract performance.
(3) Potential costs of termination and reprocurement.
(4) Need for or urgency of the requirement, contract coverage, and the impact of delay for reprocurement.
(5) Availability of other safeguards to protect the Government’s interest until completion of the contract.
(6) Availability of alternate competitive sources to meet the requirement (e.g., other multiple award contracts, readily available commercial products and commercial services).
(c) The responsibilities of the agency head under FAR 9.405-1 are delegated to the Senior Procurement Executive.
509.405-2 Restrictions on subcontracting.
The responsibilities of the agency head under FAR 9.405-2(a) are delegated to the Senior Procurement Executive.
The Suspension and Debarment Official is the designee under FAR 9.406-1(c).
(a) Investigation and referral.
(1) Refer to the Suspension and Debarment Official matters involving serious contract improprieties or performance deficiencies. Performance deficiencies that continue over a period of time or apply to more than one contract may warrant debarment consideration.
(2) Refer possible criminal or fraudulent activities to the Office of the Inspector General (OIG). See 5 CFR 6701.107, Reporting Waste, Fraud, Abuse, and Corruption. If, after investigation, the OIG believes a cause for debarment exists, it will refer the matter to the Suspension and Debarment Official for consideration of debarment action.
(b) Reports. Include in referrals to the Suspension and Debarment Official a report that contains at least the following:
(1) The recommendation and supporting rationale.
(2) A list of parties to be considered for possible debarment, including the contractor, principals, and affiliates. Include last known home and business addresses, zip codes, and unique entity identifiers.
(3) A statement of facts.
(4) Copies of documentary evidence and a list of witnesses. Include addresses and telephone numbers. Determine their availability to appear at a fact-finding proceeding and identify the subject matter of their testimony.
(5) GSA’s acquisition history with the contractor. Include recent experience, copies of the pertinent contracts, and an explanation of impact debarment would have on GSA programs. OIG referrals do not require this explanation; the Suspension and Debarment Official will obtain the information directly from the contracting activity(s).
(6) A list of any known active or potential criminal investigations, criminal or civil proceedings, or administrative claims before the Board of Contract Appeals.
(c) Review. The Suspension and Debarment Official will review the report, and after coordinating with assigned legal counsel—
(1) Initiate debarment action;
(2) Decline debarment action.;
(3) Request additional information; or
(4) Refer the matter to the OIG for further investigation and development of a case file.
(d) Decisionmaking process.
(1) The Suspension and Debarment Official will provide:
(i) Notice of declinations, proposed debarments, and decisions to the referring activity.
(ii) Notice of proposed debarment to each party being considered for debarment.
(iii) Decision notices to each party after considering information in the administrative record and information and argument submitted by the affected party or parties.
(2) A party proposed for debarment:
(i) Has 30 calendar days after receipt of the notice to respond to the Suspension and Debarment Official or the debarment becomes final.
(ii) May request and receive a copy of the administrative record that was the basis for the proposed debarment. If information is withheld, the party will be notified and provided the reason.
(iii) May request the opportunity to present information and argument in person to the Suspension and Debarment Official. The Suspension and Debarment Official will schedule an oral presentation within 20calendar days of receipt of the request, unless a longer period of time is requested by the party. An oral presentation is informal and a transcript usually is not made. The party may supplement the oral presentation with written information and arguments.
(iv) May identify to the Suspension and Debarment Official material facts in dispute and the bases. For an action other than one based on a conviction or civil judgment, a party may request review and a written finding by a fact-finding official.
(3) Following a review of the record and, if needed, a presentation by the contractor in opposition to the proposed action, the Suspension and Debarment Official will determine whether there is a genuine dispute of material fact. If so, the Suspension and Debarment Official will initiate the fact-finding process. The fact-finding official will:
(i) Establish a date for a fact-finding proceeding, normally to be held within 45 days of the determination of who will function as the fact-finding official.
(ii) Grant extensions for good cause.
(iii) Provide notice of the scheduled hearing.
(iv) Provide the parties with a schedule for exchange of documents and witness lists.
(v) Develop an official transcript of the fact-finding proceeding.
(vi) Provide the Government’s representative and the contractor with an opportunity to present evidence relevant to the facts at issue. The contractor may appear in person or through a representative.
(vii) Conduct hearings under rules consistent with FAR 9.406-3 pertaining to fact finding. Neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure govern fact finding. Hearsay evidence may be presented and will be given appropriate weight by the fact-finding official.
(viii) Provide for witness testimony. Witnesses may testify in person. Witnesses are subject to cross examination.
(ix) Prepare written findings of fact based on a preponderance of the evidence and submit them to both the Suspension and Debarment Official and the contractor within 20 calendar days following the conclusion of the fact-finding proceeding.
The Suspension and Debarment Official is the designee under FAR 9.407-1(d).
(a) General. The procedures in 509.406-3 apply to suspension actions except as noted in paragraph (b) of this section.
(1) Fact-finding will not be conducted in an action:
(i) Based on an indictment.
(ii) When the Suspension and Debarment Official finds no genuine dispute of material facts.
(2) If the action is not based on an indictment, the Suspension and Debarment Official must coordinate with the Department of Justice or state prosecutorial authority through OIG. Based on the advice received, the Suspension and Debarment Official will determine if fact-finding would impair substantial interests of the Federal or state Government. In an action not based on an indictment, a suspended party may:
(i) Identify to the Suspension and Debarment Official material facts in dispute and the bases.
(ii) Request review and a written finding by a fact-finding official to resolve genuine disputes of material fact. For procedures involving a genuine dispute of material fact, see 509.406-3(d)(3).