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SUBPART 209.4--DEBARMENT, SUSPENSION, AND INELIGIBILITY

(Revised February 14, 2003)

 

 



 209.402 Policy
 209.403 Definitions
 209.405 Effect
 209.405- Continuation
 209.405- Restrictions
 209.406 Debarment
 209.406- General
 209.406- Causes
 209.406- Procedures
 209.407 Suspension
 209.407- Procedures
 209.409 Solicitation
 209.470 Reserve
 209.470- Definition
 209.470- Policy
 209.470- Procedures
 209.470- Contract
 209.471 Congressional


209.402  Policy
.

 

      (d)  The suspension and debarment procedures in Appendix H are to be followed by all debarring and suspending officials.

 

      (e)  The department or agency shall provide a copy of Appendix H, Debarment and Suspension Procedures, to contractors at the time of their suspension or when they are proposed for debarment, and upon request to other interested parties.

 

209.403  Definitions.

“Debarring and suspending official.”

 

              (1)  For DoD, the designees are—

 

Army--Commander, U.S. Army Legal Services Agency

 

Navy--The General Counsel of the Department of the Navy

 

Air Force--Deputy General Counsel (Contractor Responsibility)

 

Defense Advanced Research Projects Agency--The Director

 

Defense Information Systems Agency--The General Counsel

 

Defense Logistics Agency--The Special Assistant for Contracting Integrity

 

National Imagery and Mapping Agency--The General Counsel

 

Defense Threat Reduction Agency--The Director

 

National Security Agency--The Director

 

Missile Defense Agency--The General Counsel

 

Overseas installations--as designated by the agency head

 

              (2)  Overseas debarring and suspending officials—

 

                    (i)  Are authorized to debar or suspend contractors located within the official's geographic area of responsibility under any delegation of authority they receive from their agency head.

 

                    (ii)  Debar or suspend in accordance with the procedures in FAR Subpart 9.4 or under modified procedures approved by the agency head based on consideration of the laws or customs of the foreign countries concerned.

 

                    (iii)  In addition to the bases for debarment in FAR 9.406-2, may consider the following additional bases—

 

                            (A)  The foreign country concerned determines that a contractor has engaged in bid-rigging, price-fixing, or other anti-competitive behavior; or

 

                            (B)  The foreign country concerned declares the contractor to be formally debarred, suspended, or otherwise ineligible to contract with that foreign government or its instrumentalities.

 

              (3)  The Defense Logistics Agency Special Assistant for Contracting Integrity is the exclusive representative of the Secretary of Defense to suspend and debar contractors from the purchase of Federal personal property under the Federal Property Management Regulations (41 CFR 101-45.6) and the Defense Materiel Disposition Manual (DoD 4160.21-M).

 

209.405  Effect of listing.

 

      (a)  Under 10 U.S.C. 2393(b), when a department or agency determines that a compelling reason exists for it to conduct business with a contractor that is debarred or suspended from procurement programs, it must provide written notice of the determination to the General Services Administration, Office of Acquisition Policy.  Examples of compelling reasons are—

 

              (i)  Only a debarred or suspended contractor can provide the supplies or services;

 

              (ii)  Urgency requires contracting with a debarred or suspended contractor;

 

              (iii)  The contractor and a department or agency have an agreement covering the same events that resulted in the debarment or suspension and the agreement includes the department or agency decision not to debar or suspend the contractor; or

 

              (iv)  The national defense requires continued business dealings with the debarred or suspended contractor.

 

      (b)(i)  The Procurement Cause and Treatment Code "H" annotation in the GSA List of Parties Excluded from Federal Procurement and Nonprocurement Programs identifies contractors that are declared ineligible for award of a contract or subcontract because of a violation of the Clean Air Act (42 U.S.C. 7606) or the Clean Water Act (33 U.S.C. 1368).

 

              (ii)  Under the authority of 40 CFR 32.215(b), the agency head may grant an exception permitting award to a Code "H" ineligible contractor if it is in the paramount interest of the United States.

 

                    (A)  The agency head may delegate this exception authority to a level no lower than a general or flag officer or a member of the Senior Executive Service.

 

                    (B)  The official granting the exception must provide written notice to the Environmental Protection Agency debarring official.

 

209.405-1  Continuation of current contracts.

 

      (b)  Unless the agency head makes a written determination that a compelling reason exists to do so, ordering activities shall not—

 

              (i)  Place orders exceeding the guaranteed minimum under indefinite quantity contracts; or

 

              (ii)  When the agency is an optional user, place orders against Federal Supply Schedule contracts.

 

      (c)  This includes exercise of options.

 

209.405-2  Restrictions on subcontracting.

 

      (a)  The contracting officer shall not consent to any subcontract with a firm, or a subsidiary of a firm, that is identified by the Secretary of Defense as being owned or controlled by the government of a terrorist country unless the agency head states in writing the compelling reasons for the subcontract.

 

209.406  Debarment.

 

209.406-1  General.

 

      (a)(i)  When the debarring official decides that debarment is not necessary, the official may require the contractor to enter into a written agreement which includes—

 

                    (A)  A requirement for the contractor to establish, if not already established, and to maintain the standards of conduct and internal control systems prescribed by Subpart 203.70; and

 

                    (B)  Other requirements the debarring official considers appropriate.

 

              (ii)  Before the debarring official decides not to suspend or debar in the case of an indictment or conviction for a felony, the debarring official must determine that the contractor has addressed adequately the circumstances that gave rise to the misconduct, and that appropriate standards of ethics and integrity are in place and are working.

 

209.406-2  Causes for debarment.

 

      (a)  Any person shall be considered for debarment if criminally convicted of intentionally affixing a label bearing a “Made in America” inscription to any product sold in or shipped to the United States that was not made in America (10 U.S.C. 2410f).

 

              (i)  The debarring official will make a determination concerning debarment not later than 90 days after determining that a person has been so convicted.

 

              (ii)  In cases where the debarring official decides not to debar, the debarring official will report that decision to the Director of Defense Procurement and Acquisition Policy, who will notify Congress within 30 days after the decision is made.

 

209.406-3  Procedures.

 

      (a)  Investigation and referral.

 

              (i)  Refer all matters appropriate for consideration by an agency debarring and suspending official as soon as practicable to the appropriate debarring and suspending official identified in 209.403.  Any person may refer a matter to the debarring and suspending official.

 

              (ii)  Use the following format when referring a matter to the agency debarring and suspending official for consideration.  To the extent practicable, provide all specified information.

 

                    (A)  Name, address, and telephone number of the point of contact for the activity making the report.

 

                    (B)  Name, contractor and Government entity (CAGE) code, and address of the contractor.

 

                    (C)  Name and addresses of the members of the board, principal officers, partners, owners, and managers.

 

                    (D)  Name and addresses of all known affiliates, subsidiaries, or parent firms, and the nature of the business relationship.

 

                    (E)  For each contract affected by the conduct being reported—

 

                            (1)  The contract number;

 

                            (2)  All office identifying numbers or symbols;

 

                            (3)  Description of supplies or services;

 

                            (4)  The amount;

 

                            (5)  The percentage of completion;

 

                            (6)  The amount paid the contractor;

 

                            (7)  Whether the contract is assigned under the Assignment of Claims Act and, if so, to whom; and

 

                            (8)  The amount due the contractor.

 

                    (F)  For any other contracts outstanding with the contractor or any of its affiliates—

 

                            (1)  The contract number;

 

                            (2)  The amount;

 

                            (3)  The amounts paid the contractor;

 

                            (4)  Whether the contract is assigned under the Assignment of Claims Act and, if so, to whom; and

 

                            (5)  The amount due the contractor.

 

                    (G)  A complete summary of all pertinent evidence and the status of any legal proceedings involving the contractor.

 

                    (H)  An estimate of any damages sustained by the Government as a result of the contractor's action (explain how the estimate was calculated).

 

                    (I)  If a contracting office initiates the report, the comments and recommendations of the contracting officer and of each higher-level contracting review authority regarding—

 

                            (1)  Whether to suspend or debar the contractor;

 

                            (2)  Whether to apply limitations to the suspension or debarment;

 

                            (3)  The period of any recommended debarment; and

 

                            (4)  Whether to continue any current contracts with the contractor (or explain why a recommendation regarding current contracts is not included).

 

                    (J)  When appropriate, as an enclosure to the report—

 

                            (1)  A copy or pertinent extracts of each pertinent contract;

 

                            (2)  Witness statements or affidavits;

 

                            (3)  Copies of investigative reports when authorized by the investigative agency;

 

                            (4)  Certified copies of indictments, judgments, and sentencing actions; and

 

                            (5)  A copy of any available determinations of nonresponsibility in accordance with FAR 9.105-2(a)(1); and

 

                            (6)  Any other appropriate exhibits or documentation.

 

              (iii)  Send three copies of each report, including enclosures, to the appropriate debarring and suspending official.

 

              (iv)  If a referral lacks sufficient evidence of a cause for debarment, the debarring and suspending official may initiate a review or investigation, as appropriate, by reporting the referral to the appropriate Government entity, e.g., contracting activity, inspector general, or criminal investigative agency.

 

      (b)  Decisionmaking process.

 

              (i)  The agency debarring and suspending official may initiate the debarment process by issuing a notice of proposed debarment in accordance with FAR 9.406-3(c) when the debarring and suspending official finds that the administrative record contains sufficient evidence of one or more of the causes for debarment stated in FAR 9.406-2 or 209.406-2.

 

                    (A)  The absence of a referral in accordance with paragraph (a)(i) of this subsection, or the absence of any information specified in the report format in paragraph (a)(ii) of this subsection, will not preclude the debarring and suspending official from making such a finding.

 

                    (B)  The signature of the debarring and suspending official on the notice of proposed debarment is sufficient evidence that the debarring and suspending official has made such a finding.

 

              (ii)  The agency debarring and suspending official must use the decisionmaking process stated in FAR 9.406-3(b), DFARS Appendix H, and any agency-specific procedures that were provided to the contractor in advance of the decision.

 

      (d)  Debarring official's decision.  The absence of a referral in accordance with paragraph (a)(i) of this subsection, or the absence of any information specified in the report format in paragraph (a)(ii) of this subsection, will not preclude the debarring and suspending official from making a decision.

 

209.407  Suspension.

 

209.407-3  Procedures.

 

      (a)  Investigation and referral.

 

              (i)  Refer all matters appropriate for consideration by an agency debarring and suspending official as soon as practicable to the appropriate debarring and suspending official identified in 209.403.  Any person may refer a matter to the debarring and suspending official.

 

              (ii)  Use the format at 209.406-3(a)(ii) when referring a matter to the agency debarring and suspending official for consideration.  To the extent practicable, provide all information specified in the format.

 

              (iii)  If a referral lacks sufficient evidence of a cause for suspension, the debarring and suspending official may initiate a review or investigation, as appropriate, by reporting the referral to the appropriate Government entity, e.g., contracting activity, inspector general, or criminal investigative agency.

 

      (b)  Decisionmaking process.

 

              (i)  The agency debarring and suspending official may initiate the suspension process by issuing a notice of suspension in accordance with FAR 9.407-3(c) when the debarring and suspending official finds that the administrative record contains sufficient evidence of one or more of the causes for suspension stated in FAR 9.407-2.

 

                    (A)  The absence of a referral in accordance with paragraph (a)(i) of this subsection, or the absence of any information specified in the report format at 209.406-3(a)(ii), will not preclude the debarring and suspending official from making such a finding.

 

                    (B)  The signature of the debarring and suspending official on the notice of suspension is sufficient evidence that the debarring and suspending official has made such a finding.

 

              (ii)  In deciding whether to terminate a suspension following a submission of matters in opposition, the agency debarring and suspending official must use the decisionmaking process stated in FAR 9.407-3(b), DFARS Appendix H, and any agency-specific procedures that were provided to the contractor in advance of the decision.

 

      (d)  Suspending official's decision.  The absence of a referral in accordance with paragraph (a)(i) of this subsection, or the absence of any information specified in the report format at 209.406-3(a)(ii), will not preclude the debarring and suspending official from making a decision.

 

209.409  Solicitation provision and contract clause.

Use the clause at 252.209-7004, Subcontracting with Firms That Are Owned or Controlled by the Government of a Terrorist Country, in solicitations and contracts with a value of $100,000 or more.

 

209.470  Reserve Officer Training Corps and military recruiting on campus.

 

209.470-1  Definition.

 

"Institution of higher education," as used in this section, means an institution that meets the requirements of 20 U.S.C. 1001 and includes all subelements of such an institution.

 

209.470-2  Policy.

 

      (a)  Except as provided in paragraph (b) of this subsection, 10 U.S.C. 983 prohibits DoD from providing funds by contract or grant to an institution of higher education if the Secretary of Defense determines that the institution has a policy or practice that prohibits or in effect prevents—

 

              (1)  The Secretary of a military department from maintaining, establishing, or operating a unit of the Senior Reserve Officer Training Corps (ROTC) at that institution;

 

              (2)  A student at that institution from enrolling in a unit of the Senior ROTC at another institution of higher education;

 

              (3)  The Secretary of a military department or the Secretary of Transportation from gaining entry to campuses, or access to students on campuses, for purposes of military recruiting; or

 

              (4)  Military recruiters from accessing certain information pertaining to students enrolled at that institution.

 

      (b)  The prohibition in paragraph (a) of this subsection does not apply to an institution of higher education if the Secretary of Defense determines that—

 

              (1)  The institution has ceased the policy or practice described in paragraph (a) of this subsection; or

 

              (2)  The institution has a long-standing policy of pacifism based on historical religious affiliation.

 

209.470-3  Procedures.

If the Secretary of Defense determines that an institution of higher education is ineligible to receive DoD funds because of a policy or practice described in

209.470-2(a)—

 

      (a)  The Secretary of Defense will list the institution on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs published by the General Services Administration (also see FAR 9.404 and 32 CFR Part 216); and

 

      (b)  DoD components—

 

              (1)  Shall not solicit offers from, award contracts to, or consent to subcontracts with the institution;

 

              (2)  Shall make no further payments under existing contracts with the institution; and

 

              (3)  Shall terminate existing contracts with the institution.

 

209.470-4  Contract clause.

Use the clause at 252.209-7005, Reserve Officer Training Corps and Military Recruiting on Campus, in all solicitations and contracts with institutions of higher education.

 

209.471  Congressional Medal of Honor.

In accordance with Section 8118 of Pub. L. 105-262, do not award a contract to, extend a contract with, or approve the award of a subcontract to any entity that, within the preceding 15 years, has been convicted under 18 U.S.C. 704 of the unlawful manufacture or sale of the Congressional Medal of Honor.  Any entity so convicted will be listed as ineligible on the List of Parties Excluded from Federal Procurement and Nonprocurement Programs published by the General Services Administration.

 


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