Subpart G—Suspension

OMB Guidance, Grants and Agreements § 176.190

Relevant international agree- States Entities covered Exclusions ments

U.S. Environmental Protection Any recipient ...... U.S.-Canada Agreement. Clean Water and Drinking Water State Revolving Funds Agency for projects funded by reallocated ARRA funds where the contracts are signed after February 17, 2010 (exclusion of Cana- dian iron, steel and manu- factured products from do- mestic purchasing restriction in Section 1605 of American Recovery and Reinvestment Act of 2009).

General Exceptions: The following restric- France, Germany, Greece, Hungary, Ireland, tions and exceptions are excluded from U.S. Italy, Latvia, Lithuania, Luxembourg, obligations under international agreements: Malta, Netherlands, Poland, Portugal, Ro- 1. The restrictions attached to Federal mania, Slovak Republic, Slovenia, Spain, funds to States for mass transit and highway Sweden, and United Kingdom. projects. Agreement between the Government of Can- 2. Dredging. ada and the Government of the United States of The World Trade Organization Government America on Government Procurement (Feb. 10, Procurement Agreement (WTO GPA) Parties: 2010) (U.S.-Canada Agreement): Applies only Aruba, Austria, Belgium, Bulgaria, Canada, to Canada. Chinese Taipei (Taiwan), Cyprus, Czech Re- public, Denmark, Estonia, Finland, France, [75 FR 14324, Mar. 25, 2010] Germany, Greece, Hong Kong, Hungary, Ice- land, Ireland, Israel, Italy, Japan, Korea (Re- Subpart C—Wage Rate Require- public of), Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, ments Under Section 1606 of Poland, Portugal, Romania, Singapore, Slo- the American Recovery and vak Republic, Slovenia, Spain, Sweden, Reinvestment Act of 2009 Switzerland, and United Kingdom. The Free Trade Agreements and the respective § 176.180 Procedure. Parties to the agreements are: (1) Dominican Republic-Central America- The award official shall insert the United States Free Trade Agreement (DR– standard award term in this subpart in CAFTA): Costa Rica, Dominican Republic, El all awards funded in whole or in part Salvador, Guatemala, Honduras, and Nica- with Recovery Act funds. ragua; (2) North American Free Trade Agreement § 176.190 Award term—Wage rate re- (NAFTA): Canada and Mexico; quirements under Section 1606 of (3) United States-Australia Free Trade the Recovery Act. Agreement (U.S.-Australia FTA); (4) United States-Bahrain Free Trade When issuing announcements or re- Agreement (U.S.-Bahrain FTA); questing applications for Recovery Act (5) United States-Chile Free Trade Agree- programs or activities that may in- ment (U.S.-Chile FTA); volve construction, alteration, mainte- (6) United States-Israel Free Trade Agree- nance, or repair the agency shall use ment (U.S.-Israel FTA); the award term described in the fol- (7) United States-Morocco Free Trade Agreement (U.S.-Morocco FTA); lowing paragraphs: (8) United States-Oman Free Trade Agree- (a) Section 1606 of the Recovery Act ment (U.S.-Oman FTA); requires that all laborers and mechan- (9) United States-Peru Trade Promotion ics employed by contractors and sub- Agreement (U.S.-Peru TPA); and contractors on projects funded directly (10) United States-Singapore Free Trade by or assisted in whole or in part by Agreement (U.S.-Singapore FTA). and through the Federal Government United States-European Communities Ex- change of Letters (May 30, 1995) (U.S.-EC Ex- pursuant to the Recovery Act shall be change of Letters) applies to EC Member paid wages at rates not less than those States: Austria, Belgium, Bulgaria, Cyprus, prevailing on projects of a character Czech Republic, Denmark, Estonia, Finland, similar in the locality as determined

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00053 Fmt 8010 Sfmt 8002 Y:\SGML\253005.XXX 253005 § 176.200 2 CFR Ch. I (1–1–21 Edition)

by the Secretary of Labor in accord- and in accordance with 2 CFR 215.21 ance with subchapter IV of chapter 31 ‘‘Uniform Administrative Require- of title 40, United States Code. ments for Grants and Agreements’’ and Pursuant to Reorganization Plan No. OMB Circular A–102 Common Rules 14 and the Copeland Act, 40 U.S.C. 3145, provisions, recipients agree to main- the Department of Labor has issued tain records that identify adequately regulations at 29 CFR parts 1, 3, and 5 the source and application of Recovery to implement the Davis-Bacon and re- Act funds. OMB Circular A–102 is avail- lated Acts. Regulations in 29 CFR 5.5 able at http://www.whitehouse.gov/omb/ instruct agencies concerning applica- circulars/a102/a102.html. tion of the standard Davis-Bacon con- (b) For recipients covered by the Sin- tract clauses set forth in that section. gle Audit Act Amendments of 1996 and Federal agencies providing grants, co- OMB Circular A–133, ‘‘Audits of States, operative agreements, and loans under Local Governments, and Non-Profit Or- the Recovery Act shall ensure that the ganizations,’’ recipients agree to sepa- standard Davis-Bacon contract clauses rately identify the expenditures for found in 29 CFR 5.5(a) are incorporated Federal awards under the Recovery Act in any resultant covered contracts that on the Schedule of Expenditures of are in excess of $2,000 for construction, Federal Awards (SEFA) and the Data alteration or repair (including painting Collection Form (SF–SAC) required by and decorating). OMB Circular A–133. OMB Circular A– (b) For additional guidance on the 133 is available at http:// wage rate requirements of section 1606, www.whitehouse.gov/omb/circulars/a133/ contact your awarding agency. Recipi- a133.html. This shall be accomplished ents of grants, cooperative agreements by identifying expenditures for Federal and loans should direct their initial in- awards made under the Recovery Act quiries concerning the application of separately on the SEFA, and as sepa- Davis-Bacon requirements to a par- rate rows under Item 9 of Part III on ticular federally assisted project to the the SF–SAC by CFDA number, and in- Federal agency funding the project. clusion of the prefix ‘‘ARRA-’’ in iden- The Secretary of Labor retains final tifying the name of the Federal pro- coverage authority under Reorganiza- gram on the SEFA and as the first tion Plan Number 14. characters in Item 9d of Part III on the SF–SAC. Subpart D—Single Audit Informa- (c) Recipients agree to separately tion for Recipients of Recov- identify to each subrecipient, and docu- ery Act Funds ment at the time of subaward and at the time of disbursement of funds, the § 176.200 Procedure. Federal award number, CFDA number, The award official shall insert the and amount of Recovery Act funds. standard award term in this subpart in When a recipient awards Recovery Act all awards funded in whole or in part funds for an existing program, the in- with Recovery Act funds. formation furnished to subrecipients shall distinguish the subawards of in- § 176.210 Award term—Recovery Act cremental Recovery Act funds from transactions listed in Schedule of regular subawards under the existing Expenditures of Federal Awards program. and Recipient Responsibilities for (d) Recipients agree to require their Informing Subrecipients. subrecipients to include on their SEFA The award term described in this sec- information to specifically identify Re- tion shall be used by agencies to clarify covery Act funding similar to the re- recipient responsibilities regarding quirements for the recipient SEFA de- tracking and documenting Recovery scribed above. This information is Act expenditures: needed to allow the recipient to prop- (a) To maximize the transparency erly monitor subrecipient expenditure and accountability of funds authorized of ARRA funds as well as oversight by under the American Recovery and Re- the Federal awarding agencies, Offices investment Act of 2009 (Pub. L. 111–5) of Inspector General and the Govern- (Recovery Act) as required by Congress ment Accountability Office.

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00054 Fmt 8010 Sfmt 8006 Y:\SGML\253005.XXX 253005 OMB Guidance, Grants and Agreements Pt. 180

PARTS 177–179 [RESERVED] 180.210 Which nonprocurement transactions are covered transactions? 180.215 Which nonprocurement transactions PART 180—OMB GUIDELINES TO are not covered transactions? AGENCIES ON GOVERNMENT- 180.220 Are any procurement contracts in- WIDE DEBARMENT AND SUSPEN- cluded as covered transactions? 180.225 How do I know if a transaction in SION (NONPROCUREMENT) which I may participate is a covered transaction? Sec. 180.5 What does this part do? Subpart C—Responsibilities of Participants 180.10 How is this part organized? Regarding Transactions Doing Business 180.15 To whom do these guidelines apply? 180.20 What must a Federal agency do to With Other Persons implement these guidelines? 180.300 What must I do before I enter into a 180.25 What must a Federal agency address covered transaction with another person in its implementation of these guide- at the next lower tier? lines? 180.305 May I enter into a covered trans- 180.30 Where does a Federal agency imple- action with an excluded or disqualified ment these guidelines? person? 180.35 By when must a Federal agency im- 180.310 What must I do if a Federal agency plement these guidelines? excludes a person with whom I am al- 180.40 How are these guidelines maintained? ready doing business in a covered trans- 180.45 Do these guidelines cover persons action? who are disqualified, as well as those who 180.315 May I use the services of an excluded are excluded from nonprocurement trans- person as a principal under a covered actions? transaction? Subpart A—General 180.320 Must I verify that principals of my covered transactions are eligible to par- 180.100 How are subparts A through I orga- ticipate? nized? 180.325 What happens if I do business with 180.105 How is this part written? an excluded person in a covered trans- 180.110 Do terms in this part have special action? meanings? 180.330 What requirements must I pass down 180.115 What do subparts A through I of this to persons at lower tiers with whom I in- part do? tend to do business? 180.120 Do subparts A through I of this part apply to me? DISCLOSING INFORMATION—PRIMARY TIER 180.125 What is the purpose of the non- PARTICIPANTS procurement debarment and suspension 180.335 What information must I provide be- system? fore entering into a covered transaction 180.130 How does an exclusion restrict a per- with a Federal agency? son’s involvement in covered trans- 180.340 If I disclose unfavorable information actions? required under § 180.335 will I be pre- 180.135 May a Federal agency grant an ex- vented from participating in the trans- ception to let an excluded person partici- action? pate in a covered transaction? 180.345 What happens if I fail to disclose in- 180.140 Does an exclusion under the non- formation required under § 180.335? procurement system affect a person’s eli- 180.350 What must I do if I learn of informa- gibility for Federal procurement con- tion required under § 180.335 after enter- tracts? ing into a covered transaction with a 180.145 Does an exclusion under the Federal Federal agency? procurement system affect a person’s eligibility to participate in nonprocure- DISCLOSING INFORMATION—LOWER TIER ment transactions? PARTICIPANTS 180.150 Against whom may a Federal agency take an exclusion action? 180.355 What information must I provide to 180.155 How do I know if a person is ex- a higher tier participant before entering cluded? into a covered transaction with that participant? Subpart B—Covered Transactions 180.360 What happens if I fail to disclose information required under § 180.355? 180.200 What is a covered transaction? 180.365 What must I do if I learn of informa- 180.205 Why is it important to know if a par- tion required under § 180.355 after enter- ticular transaction is a covered trans- ing into a covered transaction with a action? higher tier participant?

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00055 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 Pt. 180 2 CFR Ch. I (1–1–21 Edition)

Subpart D—Responsibilities of Federal 180.630 May a Federal agency impute the Agency Officials Regarding Transactions conduct of one person to another? 180.635 May a Federal agency settle a debar- 180.400 May I enter into a transaction with ment or suspension action? an excluded or disqualified person? 180.640 May a settlement include a vol- 180.405 May I enter into a covered trans- untary exclusion? action with a participant if a principal of 180.645 Do other Federal agencies know if the transaction is excluded? an agency agrees to a voluntary exclu- 180.410 May I approve a participant’s use of sion? the services of an excluded person? 180.650 May an administrative agreement be 180.415 What must I do if a Federal agency the result of a settlement? excludes the participant or a principal 180.655 How will other Federal awarding after I enter into a covered transaction? agencies know about an administrative 180.420 May I approve a transaction with an agreement that is the result of a settle- excluded or disqualified person at a lower ment? tier? 180.660 Will administrative agreement infor- 180.425 When do I check to see if a person is mation about me in the designated integ- excluded or disqualified? rity and performance system accessible 180.430 How do I check to see if a person is through SAM be corrected or updated? excluded or disqualified? 180.435 What must I require of a primary Subpart G—Suspension tier participant? 180.700 When may the suspending official 180.440 What action may I take if a primary issue a suspension? tier participant knowingly does business 180.705 What does the suspending official with an excluded or disqualified person? consider in issuing a suspension? 180.445 What action may I take if a primary 180.710 When does a suspension take effect? tier participant fails to disclose the in- 180.715 What notice does the suspending of- formation required under § 180.335? ficial give me if I am suspended? 180.450 What may I do if a lower tier partici- 180.720 How may I contest a suspension? pant fails to disclose the information re- 180.725 How much time do I have to contest quired under § 180.355 to the next higher a suspension? tier? 180.730 What information must I provide to the suspending official if I contest the Subpart E—System for Award Management suspension? Exclusions 180.735 Under what conditions do I get an additional opportunity to challenge the 180.500 What is the purpose of the System facts on which the suspension is based? for Award Management Exclusions (SAM 180.740 Are suspension proceedings formal? Exclusions)? 180.745 How is fact-finding conducted? 180.505 Who uses SAM Exclusions? 180.750 What does the suspending official 180.510 Who maintains SAM Exclusions? consider in deciding whether to continue 180.515 What specific information is in SAM or terminate my suspension? Exclusions? 180.755 When will I know whether the sus- 180.520 Who places the information into pension is continued or terminated? SAM Exclusions? 180.760 How long may my suspension last? 180.525 Whom do I ask if I have questions about a person in SAM Exclusions? Subpart H—Debarment 180.530 Where can I find SAM Exclusions? 180.800 What are the causes for debarment? Subpart F—General Principles Relating to 180.805 What notice does the debarring offi- Suspension and Debarment Actions cial give me if I am proposed for debarment? 180.600 How do suspension and debarment 180.810 When does a debarment take effect? actions start? 180.815 How may I contest a proposed debar- 180.605 How does suspension differ from de- ment? barment? 180.820 How much time do I have to contest 180.610 What procedures does a Federal a proposed debarment? agency use in suspension and debarment 180.825 What information must I provide to actions? the debarring official if I contest the pro- 180.615 How does a Federal agency notify a posed debarment? person of a suspension or debarment ac- 180.830 Under what conditions do I get an tion? additional opportunity to challenge the 180.620 Do Federal agencies coordinate sus- facts on which the proposed debarment is pension and debarment actions? based? 180.625 What is the scope of a suspension or 180.835 Are debarment proceedings formal? debarment? 180.840 How is fact-finding conducted?

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00056 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 OMB Guidance, Grants and Agreements § 180.25

180.845 What does the debarring official con- § 180.10 How is this part organized? sider in deciding whether to debar me? 180.850 What is the standard of proof in a de- This part is organized in two seg- barment action? ments. 180.855 Who has the burden of proof in a de- (a) Sections 180.5 through 180.45 con- barment action? tain general policy direction for Fed- 180.860 What factors may influence the de- eral agencies’ use of the standards in barring official’s decision? subparts A through I of this part. 180.865 How long may my debarment last? 180.870 When do I know if the debarring offi- (b) Subparts A through I of this part cial debars me? contain uniform governmentwide 180.875 May I ask the debarring official to standards that Federal agencies are to reconsider a decision to debar me? use to specify— 180.880 What factors may influence the de- (1) The types of transactions that are barring official during reconsideration? covered by the nonprocurement debar- 180.885 May the debarring official extend a ment and suspension system; debarment? (2) The effects of an exclusion under Subpart I—Definitions that nonprocurement system, including reciprocal effects with the govern- 180.900 Adequate evidence. mentwide debarment and suspension 180.905 Affiliate. system for procurement; 180.910 Agent or representative. (3) The criteria and minimum due 180.915 Civil judgment. 180.920 Conviction. process to be used in nonprocurement 180.925 Debarment. debarment and suspension actions; and 180.930 Debarring official. (4) Related policies and procedures to 180.935 Disqualified. ensure the effectiveness of those ac- 180.940 Excluded or exclusion. tions. 180.945 System for Award Management Ex- clusions (SAM Exclusions). § 180.15 To whom does the guidance 180.950 Federal agency. apply? 180.955 Indictment. 180.960 Ineligible or ineligibility. The guidance provides OMB guidance 180.965 Legal proceedings. only to Federal agencies. Publication 180.970 Nonprocurement transaction. of the guidance in the CFR does not 180.975 Notice. change its nature—it is guidance and 180.980 Participant. not regulation. Federal agencies’ im- 180.985 Person. 180.990 Preponderance of the evidence. plementation of the guidance governs 180.995 Principal. the rights and responsibilities of other 180.1000 Respondent. persons affected by the nonprocure- 180.1005 State. ment debarment and suspension sys- 180.1010 Suspending official. tem. 180.1015 Suspension. 180.1020 Voluntary exclusion or voluntarily § 180.20 What must a Federal agency excluded. do to implement these guidelines? APPENDIX TO PART 180—COVERED TRANS- As required by Section 3 of E.O. 12549, ACTIONS each Federal agency with nonprocure- AUTHORITY: Pub. L. 109–282; 31 U.S.C. 6102, ment programs and activities covered Sec. 2455, Pub. L. 103–355, 108 Stat. 3327; E.O. by subparts A through I of the guid- 12549, 3 CFR, 1986 Comp., p. 189; E.O. 12689, 3 ance must issue regulations consistent CFR, 1989 Comp., p. 235. with those subparts. SOURCE: 70 FR 51865, Aug. 31, 2005, unless otherwise noted. § 180.25 What must a Federal agency EDITORIAL NOTE: Nomenclature changes to address in its implementation of the part 180 appear at 79 FR 75879, Dec. 19, 2014. guidance? Each Federal agency implementing § 180.5 What does this part do? regulation: This part provides Office of Manage- (a) Must establish policies and proce- ment and Budget (OMB) guidance for dures for that agency’s nonprocure- Federal agencies on the government- ment debarment and suspension pro- wide debarment and suspension system grams and activities that are con- for nonprocurement programs and ac- sistent with the guidance. When adopt- tivities. ed by a Federal agency, the provisions

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00057 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 § 180.30 2 CFR Ch. I (1–1–21 Edition)

of the guidance have regulatory effect (5) Identify by title the officials des- for that agency’s programs and activi- ignated by the Federal agency head as ties. debarring officials under § 180.930 or (b) Must address some matters for suspending officials under § 180.1010. which these guidelines give each Fed- (6) Include a subpart covering dis- eral agency some discretion. Specifi- qualifications, as authorized in § 180.45. cally, the regulation must— (7) Include any provisions authorized (1) Identify either the Federal agency by OMB. head or the title of the designated official who is authorized to grant excep- [70 FR 51865, Aug. 31, 2005, as amended at 71 tions under § 180.135 to let an excluded FR 66432, Nov. 15, 2006; 79 FR 75879, Dec. 19, 2014] person participate in a covered transaction. § 180.30 Where does a Federal agency (2) State whether the agency includes implement these guidelines? as covered transactions an additional tier of contracts awarded under cov- Each Federal agency that partici- ered nonprocurement transactions, as pates in the governmentwide non- permitted under § 180.220(c). procurement debarment and suspension (3) Identify the method(s) an agency system must issue a regulation imple- official may use, when entering into a menting these guidelines within its covered transaction with a primary chapter in subtitle B of this title of the tier participant, to communicate to Code of Federal Regulations. the participant the requirements de- § 180.35 By when must a Federal agen- scribed in § 180.435. Examples of meth- cy implement these guidelines? ods are an award term that requires compliance as a condition of the award; Federal agencies must submit pro- an assurance of compliance obtained at posed regulations to the OMB for re- time of application; or a certification. view within nine months of the (4) State whether the Federal agency issuance of these guidelines and issue specifies a particular method that par- final regulations within eighteen ticipants must use to communicate months of these guidelines. compliance requirements to lower-tier participants, as described in § 180.330(a). § 180.40 How are these guidelines If there is a specified method, the regu- maintained? lation needs to require agency officials, The Interagency Committee on De- when entering into covered trans- barment and Suspension established by actions with primary tier participants, section 4 of E.O. 12549 recommends to to communicate that requirement. the OMB any needed revisions to the (c) May also, at the agency’s option: guidelines in this part. The OMB pub- (1) Identify any specific types of lishes proposed changes to the guide- transactions that the Federal agency lines in the FEDERAL REGISTER for pub- includes as ‘‘nonprocurement trans- lic comment, considers comments with actions’’ in addition to the examples the help of the Interagency Committee provided in § 180.970. on Debarment and Suspension, and (2) Identify any types of nonprocure- issues the final guidelines. ment transactions that the Federal agency exempts from coverage under § 180.45 Do these guidelines cover per- these guidelines, as authorized under sons who are disqualified, as well § 180.215(g)(2). as those who are excluded from nonprocurement transactions? (3) Identify specific examples of types of individuals who would be ‘‘prin- A Federal agency may add a subpart cipals’’ under the Federal agency’s covering disqualifications to its regula- nonprocurement programs and trans- tion implementing these guidelines, actions, in addition to the types of in- but the guidelines in subparts A dividuals described at § 180.995. through I of this part— (4) Specify the Federal agency’s pro- (a) Address disqualified persons only cedures, if any, by which a respondent to— may appeal a suspension or debarment (1) Provide for their inclusion in SAM decision. Exclusions; and

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00058 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 OMB Guidance, Grants and Agreements § 180.110

(2) State responsibilities of Federal clusion under subparts A through I of agencies and participants to check for this part, disqualification is frequently disqualified persons before entering not a discretionary action that a Fed- into covered transactions. eral agency takes, and may include (b) Do not specify the— special procedures. (1) Transactions for which a disqualified person is ineligible. Those transactions vary on a case-by-case basis, Subpart A—General because they depend on the language of § 180.100 How are subparts A through the specific statute, Executive order or I organized? regulation that caused the disqualification; (a) Each subpart contains informa- (2) Entities to which a disqualification related to a broad topic or specific tion applies; or audience with special responsibilities, (3) Process that a Federal agency as shown in the following table: uses to disqualify a person. Unlike ex-

In subpart . . . You will find provisions related to . . .

A ...... general information about Subparts A through I of this part. B ...... the types of transactions that are covered by the Governmentwide nonprocurement suspension and debarment system. C ...... the responsibilities of persons who participate in covered transactions. D ...... the responsibilities of Federal agency officials who are authorized to enter into covered transactions. E ...... the responsibilities of Federal agencies for entering information into SAM Exclusions F ...... the general principles governing suspension, debarment, voluntary exclusion and settlement. G ...... suspension actions. H ...... debarment actions. I ...... definitions of terms used in this part.

(b) The following table shows which subparts may be of special interest to you, depending on who you are:

If you are . . . See Subpart(s) . . .

(1) a participant or principal in a nonprocurement transaction ...... A, B, C and I. (2) a respondent in a suspension action ...... A, B, F, G and I. (3) a respondent in a debarment action ...... A, B, F, H and I. (4) a suspending official ...... A, B, E, F, G and I. (5) a debarring official ...... A, B, D, F, H and I. (6) an Federal agency official authorized to enter into a covered transaction ...... A, B, D, E and I.

§ 180.105 How is this part written? § 180.110 Do terms in this part have special meanings? (a) This part uses a ‘‘plain language’’ format to make it easier for the gen- This part uses terms throughout the eral public and business community to text that have special meaning. Those use. The section headings and text, terms are defined in subpart I of this often in the form of questions and an- part. For example, three important swers, must be read together. terms are— (b) Pronouns used within this part, (a) Exclusion or excluded, which refers such as ‘‘I’’ and ‘‘you,’’ change from only to discretionary actions taken by subpart to subpart depending on the a suspending or debarring official audience being addressed. under Executive Order 12549 and Execu- (c) The ‘‘Covered Transactions’’ dia- tive Order 12689 or under the Federal gram in the appendix to this part Acquisition Regulation (48 CFR part 9, subpart 9.4); shows the levels or ‘‘tiers’’ at which a Federal agency may enforce an exclu- (b) Disqualification or disqualified, which refers to prohibitions under spe- sion. cific statutes, executive orders (other than Executive Order 12549 and Execu- tive Order 12689), or other authorities. Disqualifications frequently are not

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00059 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 § 180.115 2 CFR Ch. I (1–1–21 Edition)

subject to the discretion of a Federal § 180.130 How does an exclusion re- agency official, may have a different strict a person’s involvement in cov- scope than exclusions, or have special ered transactions? conditions that apply to the disquali- With the exceptions stated in fication; and §§ 180.135, 315, and 420, a person who is (c) Ineligibility or ineligible, which gen- excluded by any Federal agency may erally refers to a person who is either not: excluded or disqualified. (a) Be a participant in a Federal agency transaction that is a covered § 180.115 What do Subparts A through transaction; or I of this part do? (b) Act as a principal of a person par- Subparts A through I of this part pro- ticipating in one of those covered vide for reciprocal exclusion of persons transactions. who have been excluded under the Fed- eral Acquisition Regulation, and pro- § 180.135 May a Federal agency grant vide for the consolidated listing of all an exception to let an excluded per- persons who are excluded, or disquali- son participate in a covered transaction? fied by statute, executive order or other legal authority. (a) A Federal agency head or designee may grant an exception permitting an § 180.120 Do subparts A through I of excluded person to participate in a par- this part apply to me? ticular covered transaction. If the Portions of subparts A through I of agency head or designee grants an exception, the exception must be in writ- this part (see table at § 180.100(b)) apply ing and state the reason(s) for deviat- to you if you are a— ing from the governmentwide policy in (a) Person who has been, is, or may Executive Order 12549. reasonably be expected to be, a partici- (b) An exception granted by one Fed- pant or principal in a covered trans- eral agency for an excluded person does action; not extend to the covered transactions (b) Respondent (a person against of another Federal agency. whom a Federal agency has initiated a debarment or suspension action); § 180.140 Does an exclusion under the (c) Federal agency debarring or sus- nonprocurement system affect a pending official; or person’s eligibility for Federal pro- (d) Federal agency official who is au- curement contracts? thorized to enter into covered trans- If any Federal agency excludes a per- actions with non-Federal parties. son under Executive Order 12549 or Ex- ecutive Order 12689, on or after August § 180.125 What is the purpose of the 25, 1995, the excluded person is also in- nonprocurement debarment and eligible for Federal procurement trans- suspension system? actions under the FAR. Therefore, an (a) To protect the public interest, the exclusion under this part has recip- Federal Government ensures the integ- rocal effect in Federal procurement rity of Federal programs by conducting transactions. business only with responsible persons. (b) A Federal agency uses the non- § 180.145 Does an exclusion under the Federal procurement system affect procurement debarment and suspension a person’s eligibility to participate system to exclude from Federal pro- in nonprocurement transactions? grams persons who are not presently If any Federal agency excludes a per- responsible. son under the FAR on or after August (c) An exclusion is a serious action 25, 1995, the excluded person is also in- that a Federal agency may take only eligible to participate in Federal agen- to protect the public interest. A Fed- cies’ nonprocurement covered trans- eral agency may not exclude a person actions. Therefore, an exclusion under or commodity for the purposes of pun- the FAR has reciprocal effect in Fed- ishment. eral nonprocurement transactions.

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00060 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 OMB Guidance, Grants and Agreements § 180.215

§ 180.150 Against whom may a Federal into other covered transactions with agency take an exclusion action? persons at the next lower tier. Given a cause that justifies an exclu- (b) As a Federal official who enters sion under this part, a Federal agency into a primary tier transaction, you may exclude any person who has been, have the responsibilities laid out in is, or may reasonably be expected to be subpart D of this part. a participant or principal in a covered (c) As an excluded person, you may transaction. not be a participant or principal in the transaction unless— § 180.155 How do I know if a person is (1) The person who entered into the excluded? transaction with you allows you to Check the Governmentwide System continue your involvement in a trans- for Award Management Exclusions action that predates your exclusion, as (SAM Exclusions) to determine wheth- permitted under § 180.310 or § 180.415; or er a person is excluded. The General (2) A Federal agency official obtains Services Administration (GSA) main- an exception from the agency head or tains the SAM Exclusions and makes it designee to allow you to be involved in available, as detailed in Subpart E of the transaction, as permitted under this part. When a Federal agency takes § 180.135. an action to exclude a person under the § 180.210 Which nonprocurement nonprocurement or procurement debar- transactions are covered trans- ment and suspension system, the agen- actions? cy enters the information about the excluded person into the SAM Exclu- All nonprocurement transactions, as sions. defined in § 180.970, are covered transactions unless listed in the exemptions [70 FR 51865, Aug. 31, 2005, as amended at 79 under § 180.215. FR 75879, Dec. 19, 2014] § 180.215 Which nonprocurement Subpart B—Covered Transactions transactions are not covered transactions? § 180.200 What is a covered trans- The following types of nonprocure- action? ment transactions are not covered A covered transaction is a non- transactions: procurement or procurement trans- (a) A direct award to— action that is subject to the prohibi- (1) A foreign government or foreign tions of this part. It may be a trans- governmental entity; action at— (2) A public international organiza- (a) The primary tier, between a Fed- tion; eral agency and a person (see appendix (3) An entity owned (in whole or in to this part); or part) or controlled by a foreign govern- (b) A lower tier, between a partici- ment; or pant in a covered transaction and an- (4) Any other entity consisting whol- other person. ly or partially of one or more foreign governments or foreign governmental § 180.205 Why is it important if a par- entities. ticular transaction is a covered (b) A benefit to an individual as a transaction? personal entitlement without regard to The importance of whether a trans- the individual’s present responsibility action is a covered transaction depends (but benefits received in an individual’s upon who you are. business capacity are not excepted). (a) As a participant in the trans- For example, if a person receives social action, you have the responsibilities security benefits under the Supple- laid out in subpart C of this part. Those mental Security Income provisions of include responsibilities to the person the Social Security Act, 42 U.S.C. 1301 or Federal agency at the next higher et seq., those benefits are not covered tier from whom you received the trans- transactions and, therefore, are not af- action, if any. They also include re- fected if the person is excluded. sponsibilities if you subsequently enter (c) Federal employment.

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00061 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 § 180.220 2 CFR Ch. I (1–1–21 Edition)

(d) A transaction that a Federal (2) Do include some procurement con- agency needs to respond to a national tracts awarded by non-Federal partici- or agency-recognized emergency or dis- pants in nonprocurement covered aster. transactions. (e) A permit, license, certificate or (b) Specifically, a contract for goods similar instrument issued as a means or services is a covered transaction if to regulate public health, safety or the any of the following applies: environment, unless a Federal agency (1) The contract is awarded by a par- specifically designates it to be a cov- ticipant in a nonprocurement trans- ered transaction. (f) An incidental benefit that results action that is covered under § 180.210, from ordinary governmental oper- and the amount of the contract is ex- ations. pected to equal or exceed $25,000. (g) Any other transaction if— (2) The contract requires the consent (1) The application of an exclusion to of an official of a Federal agency. In the transaction is prohibited by law; or that case, the contract, regardless of (2) A Federal agency’s regulation ex- the amount, always is a covered trans- empts it from coverage under this part. action, and it does not matter who (h) Notwithstanding paragraph (a) of awarded it. For example, it could be a this section, covered transactions must subcontract awarded by a contractor at include non-procurement and procure- a tier below a nonprocurement trans- ment transactions involving entities action, as shown in the appendix to engaged in activity that contributed to this part. or is a significant factor in a country’s (3) The contract is for Federally-re- non-compliance with its obligations quired audit services. under arms control, nonproliferation or (c) A subcontract also is a covered disarmament agreements or commitments with the United States. Federal transaction if,— awarding agencies and primary tier (1) It is awarded by a participant in a non-procurement recipients must not procurement transaction under a non- award, renew, or extend a non-procure- procurement transaction of a Federal ment transaction or procurement agency that extends the coverage of transaction, regardless of amount or paragraph (b)(1) of this section to addi- tier, with any entity listed in the Sys- tional tiers of contracts (see the dia- tem for Award Management Exclusions gram in the appendix to this part show- List on the basis of involvement in ac- ing that optional lower tier coverage); tivities that violate arms control, non- and proliferation or disarmament agree- (2) The value of the subcontract is ex- ments or commitments with the pected to equal or exceed $25,000. United States, pursuant to section 1290 of the National Defense Authorization [70 FR 51865, Aug. 31, 2005, as amended at 71 Act for Fiscal Year 2017, unless the FR 66432, Nov. 15, 2006] head of a Federal agency grants an exception pursuant to 2 CFR 180.135 with § 180.225 How do I know if a trans- the concurrence of the OMB Director. action in which I may participate is a covered transaction? [70 FR 51865, Aug. 31, 2005, as amended at 83 As a participant in a transaction, FR 31038, July 3, 2018] you will know that it is a covered § 180.220 Are any procurement con- transaction because the Federal agency tracts included as covered trans- regulations governing the transaction, actions? the appropriate Federal agency official (a) Covered transactions under this or participant at the next higher tier part— who enters into the transaction with (1) Do not include any procurement you, will tell you that you must com- contracts awarded directly by a Fed- ply with applicable portions of this eral agency; but part.

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00062 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 OMB Guidance, Grants and Agreements § 180.330

Subpart C—Responsibilities of Par- sponsible for the transaction grants an ticipants Regarding Trans- exception under § 180.135. actions Doing Business With § 180.315 May I use the services of an Other Persons excluded person as a principal under a covered transaction? § 180.300 What must I do before I enter into a covered transaction with an- (a) You as a participant may con- other person at the next lower tier? tinue to use the services of an excluded When you enter into a covered trans- person as a principal under a covered action with another person at the next transaction if you were using the serv- lower tier, you must verify that the ices of that person in the transaction person with whom you intend to do before the person was excluded. How- business is not excluded or disqualified. ever, you are not required to continue You do this by: using that person’s services as a prin- (a) Checking SAM Exclusions; or cipal. You should make a decision (b) Collecting a certification from about whether to discontinue that per- that person; or son’s services only after a thorough re- (c) Adding a clause or condition to view to ensure that the action is proper the covered transaction with that per- and appropriate. son. (b) You may not begin to use the [70 FR 51865, Aug. 31, 2005, as amended at 71 services of an excluded person as a FR 66432, Nov. 15, 2006] principal under a covered transaction unless the Federal agency responsible § 180.305 May I enter into a covered for the transaction grants an exception transaction with an excluded or dis- under § 180.135. qualified person? (a) You as a participant may not § 180.320 Must I verify that principals enter into a covered transaction with of my covered transactions are eli- an excluded person, unless the Federal gible to participate? agency responsible for the transaction Yes, you as a participant are respon- grants an exception under § 180.135. sible for determining whether any of (b) You may not enter into any trans- your principals of your covered transaction with a person who is disqualified actions is excluded or disqualified from from that transaction, unless you have participating in the transaction. obtained an exception under the dis- You may decide the method and fre- qualifying statute, Executive order, or quency by which you do so. You may, regulation. but you are not required to, check SAM Exclusions. § 180.310 What must I do if a Federal agency excludes a person with whom I am already doing business § 180.325 What happens if I do busi- in a covered transaction? ness with an excluded person in a covered transaction? (a) You as a participant may continue covered transactions with an ex- If as a participant you knowingly do cluded person if the transactions were business with an excluded person, the in existence when the agency excluded Federal agency responsible for your the person. However, you are not re- transaction may disallow costs, annul quired to continue the transactions, or terminate the transaction, issue a and you may consider termination. stop work order, debar or suspend you, You should make a decision about or take other remedies as appropriate. whether to terminate and the type of termination action, if any, only after a § 180.330 What requirements must I thorough review to ensure that the ac- pass down to persons at lower tiers tion is proper and appropriate. with whom I intend to do business? (b) You may not renew or extend cov- Before entering into a covered trans- ered transactions (other than no-cost action with a participant at the next time extensions) with any excluded lower tier, you must require that par- person, unless the Federal agency re- ticipant to—

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00063 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 § 180.335 2 CFR Ch. I (1–1–21 Edition)

(a) Comply with this subpart as a elect to submit with the disclosed in- condition of participation in the trans- formation. action. You may do so using any method(s), unless the regulation of the Fed- § 180.345 What happens if I fail to dis- eral agency responsible for the trans- close information required under action requires you to use specific § 180.335? methods. If a Federal agency later determines (b) Pass the requirement to comply that you failed to disclose information with this subpart to each person with under § 180.335 that you knew at the whom the participant enters into a time you entered into the covered covered transaction at the next lower transaction, the agency may— tier. (a) Terminate the transaction for material failure to comply with the DISCLOSING INFORMATION—PRIMARY terms and conditions of the trans- TIER PARTICIPANTS action; or (b) Pursue any other available rem- § 180.335 What information must I pro- edies, including suspension and debar- vide before entering into a covered ment. transaction with a Federal agency? Before you enter into a covered § 180.350 What must I do if I learn of transaction at the primary tier, you as information required under the participant must notify the Fed- § 180.335 after entering into a covered transaction with a Federal eral agency office that is entering into agency? the transaction with you, if you know that you or any of the principals for At any time after you enter into a that covered transaction: covered transaction, you must give im- (a) Are presently excluded or dis- mediate written notice to the Federal qualified; agency office with which you entered (b) Have been convicted within the into the transaction if you learn either preceding three years of any of the of- that— fenses listed in § 180.800(a) or had a civil (a) You failed to disclose information judgment rendered against you for one earlier, as required by § 180.335; or of those offenses within that time pe- (b) Due to changed circumstances, riod; you or any of the principals for the transaction now meet any of the cri- (c) Are presently indicted for or oth- teria in § 180.335. erwise criminally or civilly charged by a governmental entity (Federal, State DISCLOSING INFORMATION—LOWER TIER or local) with commission of any of the PARTICIPANTS offenses listed in § 180.800(a); or (d) Have had one or more public § 180.355 What information must I pro- transactions (Federal, State, or local) vide to a higher tier participant be- terminated within the preceding three fore entering into a covered trans- years for cause or default. action with that participant? Before you enter into a covered § 180.340 If I disclose unfavorable in- transaction with a person at the next formation required under § 180.335, higher tier, you as a lower tier partici- will I be prevented from participant must notify that person if you pating in the transaction? know that you or any of the principals As a primary tier participant, your are presently excluded or disqualified. disclosure of unfavorable information about yourself or a principal under § 180.360 What happens if I fail to dis- § 180.335 will not necessarily cause a close information required under Federal agency to deny your participa- § 180.355? tion in the covered transaction. The If a Federal agency later determines agency will consider the information that you failed to tell the person at the when it determines whether to enter higher tier that you were excluded or into the covered transaction. The agen- disqualified at the time you entered cy will also consider any additional in- into the covered transaction with that formation or explanation that you person, the agency may pursue any

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00064 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 OMB Guidance, Grants and Agreements § 180.425

available remedies, including suspen- § 180.415 What must I do if a Federal sion and debarment. agency excludes the participant or a principal after I enter into a cov- § 180.365 What must I do if I learn of ered transaction? information required under § 180.355 after entering into a cov- (a) You as a Federal agency official ered transaction with a higher tier may continue covered transactions participant? with an excluded person, or under At any time after you enter into a which an excluded person is a prin- lower tier covered transaction with a cipal, if the transactions were in exist- person at a higher tier, you must pro- ence when the person was excluded. vide immediate written notice to that You are not required to continue the person if you learn either that— transactions, however, and you may (a) You failed to disclose information consider termination. You should make earlier, as required by § 180.355; or a decision about whether to terminate (b) Due to changed circumstances, and the type of termination action, if you or any of the principals for the any, only after a thorough review to transaction now meet any of the cri- ensure that the action is proper. teria in § 180.355. (b) You may not renew or extend covered transactions (other than no-cost Subpart D—Responsibilities of Fed- time extensions) with any excluded eral Agency Officials Regard- person, or under which an excluded per- ing Transactions son is a principal, unless you obtain an exception under § 180.135. § 180.400 May I enter into a transaction with an excluded or disquali- § 180.420 May I approve a transaction fied person? with an excluded or disqualified (a) You as a Federal agency official person at a lower tier? may not enter into a covered trans- If a transaction at a lower tier is sub- action with an excluded person unless ject to your approval, you as a Federal you obtain an exception under § 180.135. agency official may not approve— (b) You may not enter into any trans- (a) A covered transaction with a per- action with a person who is disqualified son who is currently excluded, unless from that transaction, unless you ob- you obtain an exception under § 180.135; tain a waiver or exception under the or statute, Executive order, or regulation that is the basis for the person’s dis- (b) A transaction with a person who qualification. is disqualified from that transaction, unless you obtain a waiver or exception § 180.405 May I enter into a covered under the statute, Executive order, or transaction with a participant if a regulation that is the basis for the per- principal of the transaction is ex- son’s disqualification. cluded? As a Federal agency official, you may § 180.425 When do I check to see if a not enter into a covered transaction person is excluded or disqualified? with a participant if you know that a As a Federal agency official, you principal of the transaction is ex- must check to see if a person is excluded, unless you obtain an exception cluded or disqualified before you— under § 180.135. (a) Enter into a primary tier covered § 180.410 May I approve a participant’s transaction; use of the services of an excluded (b) Approve a principal in a primary person? tier covered transaction; After entering into a covered trans- (c) Approve a lower tier participant if action with a participant, you as a your agency’s approval of the lower Federal agency official may not ap- tier participant is required; or prove a participant’s use of an excluded (d) Approve a principal in connection person as a principal under that trans- with a lower tier transaction if your action, unless you obtain an exception agency’s approval of the principal is re- under § 180.135. quired.

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00065 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 § 180.430 2 CFR Ch. I (1–1–21 Edition)

§ 180.430 How do I check to see if a § 180.450 What action may I take if a person is excluded or disqualified? lower tier participant fails to disclose the information required You check to see if a person is ex- under § 180.355 to the next higher cluded or disqualified in two ways: tier? (a) You as a Federal agency official must check SAM Exclusions when you If you as a Federal agency official de- take any action listed in § 180.425. termine that a lower tier participant failed to disclose information, as re- (b) You must review information that quired by § 180.355, at the time it en- a participant gives you, as required by tered into a covered transaction with a § 180.335, about its status or the status of the principals of a transaction. participant at the next higher tier, you may pursue any remedies available to § 180.435 What must I require of a pri- you, including the initiation of a sus- mary tier participant? pension or debarment action. You as a Federal agency official must require each participant in a primary Subpart E— System for Award tier covered transaction to— Management Exclusions (a) Comply with subpart C of this part as a condition of participation in § 180.500 What is the purpose of the the transaction; and System for Award Management Ex- clusions (SAM Exclusions)? (b) Communicate the requirement to comply with subpart C of this part to SAM Exclusions is a widely available persons at the next lower tier with source of the most current information whom the primary tier participant en- about persons who are excluded or dis- ters into covered transactions. qualified from covered transactions.

§ 180.440 What action may I take if a § 180.505 Who uses SAM Exclusions? primary tier participant knowingly (a) Federal agency officials use SAM does business with an excluded or Exclusions to determine whether to disqualified person? enter into a transaction with a person, If a participant knowingly does busi- as required under § 180.430. ness with an excluded or disqualified (b) Participants also may, but are person, you as a Federal agency official not required to, use SAM Exclusions to may refer the matter for suspension determine if— and debarment consideration. You may (1) Principals of their transactions also disallow costs, annul or terminate are excluded or disqualified, as re- the transaction, issue a stop work quired under § 180.320; or order, or take any other appropriate (2) Persons with whom they are en- remedy. tering into covered transactions at the next lower tier are excluded or dis- § 180.445 What action may I take if a primary tier participant fails to disqualified. close the information required (c) Sam Exclusions are available to under § 180.335? the general public. If you as a Federal agency official de- [70 FR 51865, Aug. 31, 2005, as amended at 79 termine that a participant failed to FR 75879, Dec. 19, 2014] disclose information, as required by § 180.335, at the time it entered into a § 180.510 Who maintains SAM Exclu- covered transaction with you, you sions? may— The General Services Administration (a) Terminate the transaction for (GSA) maintains SAM Exclusions. material failure to comply with the When a Federal agency takes an action terms and conditions of the trans- to exclude a person under the non- action; or procurement or procurement debar- (b) Pursue any other available rem- ment and suspension system, the agen- edies, including suspension and debar- cy enters the information about the ex- ment. cluded person into SAM Exclusions.

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00066 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 OMB Guidance, Grants and Agreements § 180.605

§ 180.515 What specific information is (c) Information about an excluded or in SAM Exclusions? disqualified person, within three busi- (a) At a minimum, SAM Exclusions ness days, after— indicates— (1) Taking an exclusion action; (1) The full name (where available) (2) Modifying or rescinding an exclu- and address of each excluded and dis- sion action; qualified person, in alphabetical order, (3) Finding that a person is disquali- with cross references if more than one fied; or name is involved in a single action; (4) Finding that there has been a (2) The type of action; change in the status of a person who is listed as disqualified. (3) The cause for the action; (4) The scope of the action; [70 FR 51865, Aug. 31, 2005, as amended at 80 (5) Any termination date for the ac- FR 43308, July 22, 2015] tion; (6) The Federal agency and name and § 180.525 Whom do I ask if I have questions about a person in SAM Exclu- telephone number of the agency point sions? of contact for the action; and (7) The unique entity identifier ap- If you have questions about a listed proved by the GSA, of the excluded or person in SAM Exclusions, ask the disqualified person, if available. point of contact for the Federal agency (b)(1) The database for SAM Exclu- that placed the person’s name into sions includes a field for the Taxpayer SAM Exclusions. You may find the Identification Number (TIN) (the social agency point of contact from SAM Ex- security number (SSN) for an indi- clusions. vidual) of an excluded or disqualified § 180.530 Where can I find SAM Exclu- person. sions? (2) Agencies disclose the SSN of an You may access SAM Exclusions individual to verify the identity of an through the Internet, currently at individual, only if permitted under the . Privacy Act of 1974 and, if appropriate, https://www.sam.gov the Computer Matching and Privacy [79 FR 75879, Dec. 19, 2014] Protection Act of 1988, as codified in 5 U.S.C. 552(a). Subpart F—General Principles Re- [70 FR 51865, Aug. 31, 2005, as amended at 79 lating to Suspension and De- FR 75879, Dec. 19, 2014] barment Actions § 180.520 Who places the information § 180.600 How do suspension and de- into SAM Exclusions? barment actions start? Federal agency officials who take ac- When Federal agency officials receive tions to exclude persons under this information from any source con- part or officials who are responsible for cerning a cause for suspension or de- identifying disqualified persons must barment, they will promptly report it enter the following information about and the agency will investigate. The of- those persons into SAM Exclusions: ficials refer the question of whether to (a) Information required by suspend or debar you to their sus- § 180.515(a); pending or debarring official for con- (b) The Taxpayer Identification Num- sideration, if appropriate. ber (TIN) of the excluded or disqualified person, including the social secu- § 180.605 How does suspension differ rity number (SSN) for an individual, if from debarment? the number is available and may be Suspension differs from debarment in disclosed under law; that—

A suspending official... A debarring official...

(a) Imposes suspension as a temporary status of in eligibility Imposes debarment for a specified period as a final determina- for procurement and nonprocurement transactions, pending tion that a person is not presently responsible. completion of an investigation or legal proceedings. (b) Must—

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00067 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 § 180.610 2 CFR Ch. I (1–1–21 Edition)

A suspending official... A debarring official...

(1) Have adequate evidence that there may be a cause for debarment of a person; and (2) Conclude that immediate action is necessary to Must conclude, based on a preponderance of the evidence, protect the Federal interest that the person has engaged in conduct that warrants debarment. (c) Usually imposes the suspension first, and then promptly no- Imposes debarment after giving the respondent notice of the tifies the suspended person, giving the person an opportunity action and an opportunity to contest the proposed debar- to contest the suspension and have it lifted. ment.

§ 180.610 What procedures does a Fed- all of your divisions and other organi- eral agency use in suspension and zational elements from all covered debarment actions? transactions, unless the suspension or In deciding whether to suspend or debarment decision is limited— debar you, a Federal agency handles (1) By its terms to one or more spe- the actions as informally as prac- cifically identified individuals, divi- ticable, consistent with principles of sions, or other organizational ele- fundamental fairness. ments; or (a) For suspension actions, a Federal (2) To specific types of transactions. agency uses the procedures in this sub- (b) Any affiliate of a participant may part and subpart G of this part. be included in a suspension or debar- (b) For debarment actions, a Federal ment action if the suspending or debar- agency uses the procedures in this sub- ring official— part and subpart H of this part. (1) Officially names the affiliate in the notice; and § 180.615 How does a Federal agency (2) Gives the affiliate an opportunity notify a person of a suspension or to contest the action. debarment action? (a) The suspending or debarring offi- § 180.630 May a Federal agency impute cial sends a written notice to the last the conduct of one person to another? known street address, facsimile number, or e-mail address of— For purposes of actions taken under (1) You or your identified counsel; or this part, a Federal agency may impute (2) Your agent for service of process, conduct as follows: or any of your partners, officers, direc- (a) Conduct imputed from an individual tors, owners, or joint venturers. to an organization. A Federal agency (b) The notice is effective if sent to may impute the fraudulent, criminal, any of these persons. or other improper conduct of any officer, director, shareholder, partner, em- § 180.620 Do Federal agencies coordi- ployee, or other individual associated nate suspension and debarment ac- with an organization, to that organiza- tions? tion when the improper conduct oc- Yes, when more than one Federal curred in connection with the individ- agency has an interest in a suspension ual’s performance of duties for or on or debarment, the agencies may con- behalf of that organization, or with the sider designating one agency as the organization’s knowledge, approval or lead agency for making the decision. acquiescence. The organization’s ac- Agencies are encouraged to establish ceptance of the benefits derived from methods and procedures for coordi- the conduct is evidence of knowledge, nating their suspension and debarment approval or acquiescence. actions. (b) Conduct imputed from an organization to an individual, or between individ- § 180.625 What is the scope of a sus- uals. A Federal agency may impute the pension or debarment? fraudulent, criminal, or other improper If you are suspended or debarred, the conduct of any organization to an indi- suspension or debarment is effective as vidual, or from one individual to an- follows: other individual, if the individual to (a) Your suspension or debarment whom the improper conduct is imputed constitutes suspension or debarment of either participated in, had knowledge

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00068 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 OMB Guidance, Grants and Agreements § 180.660

of, or reason to know of the improper § 180.655 How will other Federal conduct. awarding agencies know about an (c) Conduct imputed from one organiza- administrative agreement that is tion to another organization. A Federal the result of a settlement? agency may impute the fraudulent, The suspending or debarring official criminal, or other improper conduct of who enters into an administrative one organization to another organiza- agreement with you must report infor- tion when the improper conduct oc- mation about the agreement to the curred in connection with a partner- designated integrity and performance ship, joint venture, joint application, association or similar arrangement, or system within three business days when the organization to whom the im- after entering into the agreement. This proper conduct is imputed has the information is required by section 872 power to direct, manage, control or in- of the Duncan Hunter National Defense fluence the activities of the organiza- Authorization Act for Fiscal Year 2009 tion responsible for the improper con- (41 U.S.C. 2313). duct. Acceptance of the benefits de- [80 FR 43308, July 22, 2015] rived from the conduct is evidence of knowledge, approval or acquiescence. § 180.660 Will administrative agreement information about me in the § 180.635 May a Federal agency settle a designated integrity and perform- debarment or suspension action? ance system accessible through Yes, a Federal agency may settle a SAM be corrected or updated? debarment or suspension action at any Yes, the suspending or debarring offi- time if it is in the best interest of the cial who entered information into the Federal Government. designated integrity and performance § 180.640 May a settlement include a system about an administrative agree- voluntary exclusion? ment with you: Yes, if a Federal agency enters into a (a) Must correct the information settlement with you in which you within three business days if he or she agree to be excluded, it is called a vol- subsequently learns that any of the in- untary exclusion and has government- formation is erroneous. wide effect. (b) Must correct in the designated integrity and performance system, with- § 180.645 Do other Federal agencies in three business days, the ending date know if an agency agrees to a vol- of the period during which the agree- untary exclusion? ment is in effect, if the agreement is (a) Yes, the Federal agency agreeing amended to extend that period. to the voluntary exclusion enters infor- (c) Must report to the designated in- mation about it into SAM Exclusions. tegrity and performance system, with- (b) Also, any agency or person may in three business days, any other modi- contact the Federal agency that agreed fication to the administrative agree- to the voluntary exclusion to find out ment. the details of the voluntary exclusion. (d) Is strongly encouraged to amend § 180.650 May an administrative agree- the information in the designated in- ment be the result of a settlement? tegrity and performance system in a Yes, a Federal agency may enter into timely way to incorporate any update an administrative agreement with you that he or she obtains that could be as part of the settlement of a debar- helpful to Federal awarding agencies ment or suspension action. who must use the system. [80 FR 43308, July 22, 2015] [80 FR 43308, July 22, 2015]

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00069 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 § 180.700 2 CFR Ch. I (1–1–21 Edition)

Subpart G—Suspension § 180.715 What notice does the suspending official give me if I am sus- § 180.700 When may the suspending of- pended? ficial issue a suspension? After deciding to suspend you, the Suspension is a serious action. Using suspending official promptly sends you the procedures of this subpart and sub- a Notice of Suspension advising you— part F of this part, the suspending offi- (a) That you have been suspended; cial may impose suspension only when (b) That your suspension is based that official determines that— on— (a) There exists an indictment for, or (1) An indictment; other adequate evidence to suspect, an (2) A conviction; offense listed under § 180.800(a), or (3) Other adequate evidence that you have committed irregularities which (b) There exists adequate evidence to seriously reflect on the propriety of suspect any other cause for debarment further Federal Government dealings listed under § 180.800(b) through (d); and with you; or (c) Immediate action is necessary to (4) Conduct of another person that protect the public interest. has been imputed to you, or your affili- ation with a suspended or debarred per- § 180.705 What does the suspending official consider in issuing a suspen- son; sion? (c) Of any other irregularities in terms sufficient to put you on notice (a) In determining the adequacy of without disclosing the Federal Govern- the evidence to support the suspension, ment’s evidence; the suspending official considers how (d) Of the cause(s) upon which the much information is available, how suspending official relied under § 180.700 credible it is given the circumstances, for imposing suspension; whether or not important allegations (e) That your suspension is for a tem- are corroborated, and what inferences porary period pending the completion can reasonably be drawn as a result. of an investigation or resulting legal or During this assessment, the suspending debarment proceedings; official may examine the basic docu- (f) Of the applicable provisions of this ments, including grants, cooperative subpart, subpart F of this part, and any agreements, loan authorizations, con- other agency procedures governing sus- tracts, and other relevant documents. pension decisionmaking; and (b) An indictment, conviction, civil (g) Of the governmentwide effect of judgment, or other official findings by your suspension from procurement and Federal, State, or local bodies that de- nonprocurement programs and activi- termine factual and/or legal matters, ties. constitutes adequate evidence for purposes of suspension actions. § 180.720 How may I contest a suspen- (c) In deciding whether immediate sion? action is needed to protect the public If you as a respondent wish to con- interest, the suspending official has test a suspension, you or your rep- wide discretion. For example, the sus- resentative must provide the suspending official may infer the neces- pending official with information in sity for immediate action to protect opposition to the suspension. You may the public interest either from the na- do this orally or in writing, but any in- ture of the circumstances giving rise to formation provided orally that you a cause for suspension or from poten- consider important must also be sub- tial business relationships or involve- mitted in writing for the official ment with a program of the Federal record. Government. § 180.725 How much time do I have to § 180.710 When does a suspension take contest a suspension? effect? (a) As a respondent you or your rep- A suspension is effective when the resentative must either send, or make suspending official signs the decision arrangements to appear and present, to suspend. the information and argument to the

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00070 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 OMB Guidance, Grants and Agreements § 180.745

suspending official within 30 days after or other finding by a Federal, State, or you receive the Notice of Suspension. local body for which an opportunity to (b) The Federal agency taking the ac- contest the facts was provided; tion considers the notice to be received (2) Your presentation in opposition by you— contains only general denials to infor- (1) When delivered, if the agency mation contained in the Notice of Sus- mails the notice to the last known pension; street address, or five days after the (3) The issues raised in your presen- agency sends it if the letter is undeliv- tation in opposition to the suspension erable; are not factual in nature, or are not (2) When sent, if the agency sends the material to the suspending official’s notice by facsimile or five days after initial decision to suspend, or the offi- the agency sends it if the facsimile is cial’s decision whether to continue the undeliverable; or suspension; or (3) When delivered, if the agency (4) On the basis of advice from the sends the notice by e-mail or five days Department of Justice, an office of the after the agency sends it if the e-mail United States Attorney, a State attor- is undeliverable. ney general’s office, or a State or local prosecutor’s office, that substantial in- § 180.730 What information must I pro- terests of the government in pending or vide to the suspending official if I contest the suspension? contemplated legal proceedings based on the same facts as the suspension (a) In addition to any information would be prejudiced by conducting and argument in opposition, as a re- fact-finding. spondent your submission to the sus- (b) You will have an opportunity to pending official must identify— challenge the facts if the suspending (1) Specific facts that contradict the official determines that— statements contained in the Notice of (1) The conditions in paragraph (a) of Suspension. A general denial is insuffi- this section do not exist; and cient to raise a genuine dispute over (2) Your presentation in opposition facts material to the suspension; raises a genuine dispute over facts ma- (2) All existing, proposed, or prior ex- terial to the suspension. clusions under regulations imple- (c) If you have an opportunity to menting Executive Order 12549 and all similar actions taken by Federal, challenge disputed material facts State, or local agencies, including ad- under this section, the suspending offi- ministrative agreements that affect cial or designee must conduct addi- only those agencies; tional proceedings to resolve those (3) All criminal and civil proceedings facts. not included in the Notice of Suspen- § 180.740 Are suspension proceedings sion that grew out of facts relevant to formal? the cause(s) stated in the notice; and (4) All of your affiliates. (a) Suspension proceedings are con- (b) If you fail to disclose this infor- ducted in a fair and informal manner. mation, or provide false information, The suspending official may use flexi- the Federal agency taking the action ble procedures to allow you to present may seek further criminal, civil or ad- matters in opposition. In so doing, the ministrative action against you, as ap- suspending official is not required to propriate. follow formal rules of evidence or procedure in creating an official record § 180.735 Under what conditions do I upon which the official will base a final get an additional opportunity to suspension decision. challenge the facts on which the (b) You as a respondent or your rep- suspension is based? resentative must submit any documen- (a) You as a respondent will not have tary evidence you want the suspending an additional opportunity to challenge official to consider. the facts if the suspending official determines that— § 180.745 How is fact-finding con- (1) Your suspension is based upon an ducted? indictment, conviction, civil judgment, (a) If fact-finding is conducted—

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00071 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 § 180.750 2 CFR Ch. I (1–1–21 Edition)

(1) You may present witnesses and (b) The suspending official may ex- other evidence, and confront any wit- tend the 12 month limit under para- ness presented; and graph (a) of this section for an addi- (2) The fact-finder must prepare writ- tional 6 months if an office of a U.S. ten findings of fact for the record. Assistant Attorney General, U.S. At- (b) A transcribed record of fact-find- torney, or other responsible pros- ing proceedings must be made, unless ecuting official requests an extension you as a respondent and the Federal in writing. In no event may a suspen- agency agree to waive it in advance. If sion exceed 18 months without initi- you want a copy of the transcribed ating proceedings under paragraph (a) record, you may purchase it. of this section. (c) The suspending official must no- § 180.750 What does the suspending of- tify the appropriate officials under ficial consider in deciding whether paragraph (b) of this section of an im- to continue or terminate my suspending termination of a suspension at pension? least 30 days before the 12 month pe- (a) The suspending official bases the riod expires to allow the officials an decision on all information contained opportunity to request an extension. in the official record. The record includes— Subpart H—Debarment (1) All information in support of the suspending official’s initial decision to § 180.800 What are the causes for de- suspend you; barment? (2) Any further information and argu- A Federal agency may debar a person ment presented in support of, or oppo- for— sition to, the suspension; and (a) Conviction of or civil judgment (3) Any transcribed record of fact- for— finding proceedings. (1) Commission of fraud or a criminal (b) The suspending official may refer offense in connection with obtaining, disputed material facts to another offi- attempting to obtain, or performing a cial for findings of fact. The suspending public or private agreement or trans- official may reject any resulting find- action; ings, in whole or in part, only after (2) Violation of Federal or State anti- specifically determining them to be ar- trust statutes, including those pro- bitrary, capricious, or clearly erro- scribing price fixing between competi- neous. tors, allocation of customers between competitors, and bid rigging; § 180.755 When will I know whether (3) Commission of embezzlement, the suspension is continued or ter- theft, forgery, bribery, falsification or minated? destruction of records, making false The suspending official must make a statements, tax evasion, receiving sto- written decision whether to continue, len property, making false claims, or modify, or terminate your suspension obstruction of justice; or within 45 days of closing the official (4) Commission of any other offense record. The official record closes upon indicating a lack of business integrity the suspending official’s receipt of final or business honesty that seriously and submissions, information and findings directly affects your present responsi- of fact, if any. The suspending official bility; may extend that period for good cause. (b) Violation of the terms of a public agreement or transaction so serious as § 180.760 How long may my suspension to affect the integrity of an agency last? program, such as— (a) If legal or debarment proceedings (1) A willful failure to perform in ac- are initiated at the time of, or during cordance with the terms of one or more your suspension, the suspension may public agreements or transactions; continue until the conclusion of those (2) A history of failure to perform or proceedings. However, if proceedings of unsatisfactory performance of one or are not initiated, a suspension may not more public agreements or trans- exceed 12 months. actions; or

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00072 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 OMB Guidance, Grants and Agreements § 180.825

(3) A willful violation of a statutory (e) Of the governmentwide effect of a or regulatory provision or requirement debarment from procurement and non- applicable to a public agreement or procurement programs and activities. transaction; (c) Any of the following causes: § 180.810 When does a debarment take (1) A nonprocurement debarment by effect? any Federal agency taken before Octo- Unlike suspension, a debarment is ber 1, 1988, or a procurement debarment not effective until the debarring offi- by any Federal agency taken pursuant cial issues a decision. The debarring of- to 48 CFR part 9, subpart 9.4, before Au- ficial does not issue a decision until gust 25, 1995; the respondent has had an opportunity (2) Knowingly doing business with an to contest the proposed debarment. ineligible person, except as permitted under § 180.135; § 180.815 How may I contest a pro- (3) Failure to pay a single substantial posed debarment? debt, or a number of outstanding debts If you as a respondent wish to con- (including disallowed costs and over- test a proposed debarment, you or your payments, but not including sums owed representative must provide the debar- the Federal Government under the In- ring official with information in oppo- ternal Revenue Code) owed to any Fed- sition to the proposed debarment. You eral agency or instrumentality, pro- may do this orally or in writing, but vided the debt is uncontested by the any information provided orally that debtor or, if contested, provided that you consider important must also be the debtor’s legal and administrative submitted in writing for the official remedies have been exhausted; record. (4) Violation of a material provision of a voluntary exclusion agreement en- § 180.820 How much time do I have to tered into under § 180.640 or of any set- contest a proposed debarment? tlement of a debarment or suspension (a) As a respondent you or your rep- action; or resentative must either send, or make (5) Violation of the provisions of the arrangements to appear and present, Drug-Free Workplace Act of 1988 (41 the information and argument to the U.S.C. 701); or debarring official within 30 days after (d) Any other cause of so serious or you receive the Notice of Proposed De- compelling a nature that it affects barment. your present responsibility. (b) The Federal agency taking the action considers the Notice of Proposed § 180.805 What notice does the debar- Debarment to be received by you— ring official give me if I am pro- (1) When delivered, if the agency posed for debarment? mails the notice to the last known After consideration of the causes in street address, or five days after the § 180.800, if the debarring official pro- agency sends it if the letter is undeliv- poses to debar you, the official sends erable; you a Notice of Proposed Debarment, (2) When sent, if the agency sends the pursuant to § 180.615, advising you— notice by facsimile or five days after (a) That the debarring official is con- the agency sends it if the facsimile is sidering debarring you; undeliverable; or (b) Of the reasons for proposing to (3) When delivered, if the agency debar you in terms sufficient to put sends the notice by e-mail or five days you on notice of the conduct or trans- after the agency sends it if the e-mail actions upon which the proposed debar- is undeliverable. ment is based; (c) Of the cause(s) under § 180.800 upon § 180.825 What information must I pro- which the debarring official relied for vide to the debarring official if I proposing your debarment; contest the proposed debarment? (d) Of the applicable provisions of (a) In addition to any information this subpart, subpart F of this part, and argument in opposition, as a re- and any other agency procedures gov- spondent your submission to the debar- erning debarment; and ring official must identify—

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00073 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 § 180.830 2 CFR Ch. I (1–1–21 Edition)

(1) Specific facts that contradict the § 180.835 Are debarment proceedings statements contained in the Notice of formal? Proposed Debarment. Include any in- (a) Debarment proceedings are con- formation about any of the factors list- ducted in a fair and informal manner. ed in § 180.860. A general denial is insuf- The debarring official may use flexible ficient to raise a genuine dispute over procedures to allow you as a respond- facts material to the debarment; ent to present matters in opposition. In (2) All existing, proposed, or prior ex- so doing, the debarring official is not clusions under regulations imple- required to follow formal rules of evi- menting Executive Order 12549 and all dence or procedure in creating an offi- similar actions taken by Federal, cial record upon which the official will State, or local agencies, including ad- base the decision whether to debar. ministrative agreements that affect only those agencies; (b) You or your representative must (3) All criminal and civil proceedings submit any documentary evidence you not included in the Notice of Proposed want the debarring official to consider. Debarment that grew out of facts rel- § 180.840 How is fact-finding con- evant to the cause(s) stated in the no- ducted? tice; and (4) All of your affiliates. (a) If fact-finding is conducted— (b) If you fail to disclose this infor- (1) You may present witnesses and mation, or provide false information, other evidence, and confront any wit- the Federal agency taking the action ness presented; and may seek further criminal, civil or ad- (2) The fact-finder must prepare writ- ministrative action against you, as ap- ten findings of fact for the record. propriate. (b) A transcribed record of fact-finding proceedings must be made, unless § 180.830 Under what conditions do I you as a respondent and the Federal get an additional opportunity to agency agree to waive it in advance. If challenge the facts on which the proposed debarment is based? you want a copy of the transcribed record, you may purchase it. (a) You as a respondent will not have an additional opportunity to challenge § 180.845 What does the debarring offi- the facts if the debarring official deter- cial consider in deciding whether to mines that— debar me? (1) Your debarment is based upon a (a) The debarring official may debar conviction or civil judgment; you for any of the causes in § 180.800. (2) Your presentation in opposition However, the official need not debar contains only general denials to infor- you even if a cause for debarment ex- mation contained in the Notice of Pro- ists. The official may consider the seri- posed Debarment; or ousness of your acts or omissions and (3) The issues raised in your presen- the mitigating or aggravating factors tation in opposition to the proposed de- set forth at § 180.860. barment are not factual in nature, or are not material to the debarring offi- (b) The debarring official bases the cial’s decision whether to debar. decision on all information contained (b) You will have an additional op- in the official record. The record in- portunity to challenge the facts if the cludes— debarring official determines that— (1) All information in support of the (1) The conditions in paragraph (a) of debarring official’s proposed debar- this section do not exist; and ment; (2) Your presentation in opposition (2) Any further information and argu- raises a genuine dispute over facts ma- ment presented in support of, or in op- terial to the proposed debarment. position to, the proposed debarment; (c) If you have an opportunity to and challenge disputed material facts (3) Any transcribed record of fact- under this section, the debarring offi- finding proceedings. cial or designee must conduct addi- (c) The debarring official may refer tional proceedings to resolve those disputed material facts to another offi- facts. cial for findings of fact. The debarring

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00074 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 OMB Guidance, Grants and Agreements § 180.860

official may reject any resultant find- mining that you have a pattern or ings, in whole or in part, only after prior history of wrongdoing. specifically determining them to be ar- (d) Whether you are or have been ex- bitrary, capricious, or clearly erro- cluded or disqualified by an agency of neous. the Federal Government or have not been allowed to participate in State or § 180.850 What is the standard of proof local contracts or assistance agree- in a debarment action? ments on a basis of conduct similar to (a) In any debarment action, the Fed- one or more of the causes for debar- eral agency must establish the cause ment specified in this part. for debarment by a preponderance of (e) Whether you have entered into an the evidence. administrative agreement with a Fed- (b) If the proposed debarment is eral agency or a State or local govern- based upon a conviction or civil judgment that is not governmentwide but ment, the standard of proof is met. is based on conduct similar to one or more of the causes for debarment spec- § 180.855 Who has the burden of proof ified in this part. in a debarment action? (f) Whether and to what extent you planned, initiated, or carried out the (a) The Federal agency has the bur- wrongdoing. den to prove that a cause for debar- (g) Whether you have accepted re- ment exists. sponsibility for the wrongdoing and (b) Once a cause for debarment is es- recognize the seriousness of the mis- tablished, you as a respondent have the conduct that led to the cause for debar- burden of demonstrating to the satis- ment. faction of the debarring official that (h) Whether you have paid or agreed you are presently responsible and that to pay all criminal, civil and adminis- debarment is not necessary. trative liabilities for the improper activity, including any investigative or § 180.860 What factors may influence the debarring official’s decision? administrative costs incurred by the government, and have made or agreed This section lists the mitigating and to make full restitution. aggravating factors that the debarring (i) Whether you have cooperated fully official may consider in determining with the government agencies during whether to debar you and the length of the investigation and any court or ad- your debarment period. The debarring ministrative action. In determining the official may consider other factors if extent of cooperation, the debarring of- appropriate in light of the cir- ficial may consider when the coopera- cumstances of a particular case. The tion began and whether you disclosed existence or nonexistence of any fac- all pertinent information known to tor, such as one of those set forth in you. this section, is not necessarily deter- (j) Whether the wrongdoing was per- minative of your present responsi- vasive within your organization. bility. In making a debarment deci- (k) The kind of positions held by the sion, the debarring official may con- individuals involved in the wrongdoing. sider the following factors: (l) Whether your organization took (a) The actual or potential harm or appropriate corrective action or reme- impact that results or may result from dial measures, such as establishing eth- the wrongdoing. ics training and implementing pro- (b) The frequency of incidents and/or grams to prevent recurrence. duration of the wrongdoing. (m) Whether your principals toler- (c) Whether there is a pattern or ated the offense. prior history of wrongdoing. For exam- (n) Whether you brought the activity ple, if you have been found by another cited as a basis for the debarment to Federal agency or a State agency to the attention of the appropriate gov- have engaged in wrongdoing similar to ernment agency in a timely manner. that found in the debarment action, (o) Whether you have fully inves- the existence of this fact may be used tigated the circumstances surrounding by the debarring official in deter- the cause for debarment and, if so,

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00075 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 § 180.865 2 CFR Ch. I (1–1–21 Edition)

made the result of the investigation (ii) Specifies the reasons for your de- available to the debarring official. barment; (p) Whether you had effective stand- (iii) States the period of your debar- ards of conduct and internal control ment, including the effective dates; systems in place at the time the ques- and tioned conduct occurred. (iv) Advises you that your debarment (q) Whether you have taken appro- is effective for covered transactions priate disciplinary action against the and contracts that are subject to the individuals responsible for the activity Federal Acquisition Regulation (48 which constitutes the cause for debar- CFR chapter 1), throughout the execu- ment. tive branch of the Federal Government (r) Whether you have had adequate unless an agency head or an authorized time to eliminate the circumstances designee grants an exception. within your organization that led to the cause for the debarment. § 180.875 May I ask the debarring official to reconsider a decision to (s) Other factors that are appropriate debar me? to the circumstances of a particular case. Yes, as a debarred person you may ask the debarring official to reconsider § 180.865 How long may my debarment the debarment decision or to reduce last? the time period or scope of the debar- (a) If the debarring official decides to ment. However, you must put your re- debar you, your period of debarment quest in writing and support it with will be based on the seriousness of the documentation. cause(s) upon which your debarment is § 180.880 What factors may influence based. Generally, debarment should not the debarring official during recon- exceed three years. However, if cir- sideration? cumstances warrant, the debarring of- The debarring official may reduce or ficial may impose a longer period of de- terminate your debarment based on— barment. (a) Newly discovered material evi- (b) In determining the period of de- dence; barment, the debarring official may (b) A reversal of the conviction or consider the factors in § 180.860. If a civil judgment upon which your debar- suspension has preceded your debarment was based; ment, the debarring official must con- (c) A bona fide change in ownership sider the time you were suspended. or management; (c) If the debarment is for a violation (d) Elimination of other causes for of the provisions of the Drug-Free which the debarment was imposed; or Workplace Act of 1988, your period of (e) Other reasons the debarring offi- debarment may not exceed five years. cial finds appropriate.

§ 180.870 When do I know if the debar- § 180.885 May the debarring official ex- ring official debars me? tend a debarment? (a) The debarring official must make (a) Yes, the debarring official may a written decision whether to debar extend a debarment for an additional within 45 days of closing the official period, if that official determines that record. The official record closes upon an extension is necessary to protect the debarring official’s receipt of final the public interest. submissions, information and findings (b) However, the debarring official of fact, if any. The debarring official may not extend a debarment solely on may extend that period for good cause. the basis of the facts and cir- (b) The debarring official sends you cumstances upon which the initial de- written notice, pursuant to § 180.615 barment action was based. that the official decided, either— (c) If the debarring official decides (1) Not to debar you; or that a debarment for an additional pe- (2) To debar you. In this event, the riod is necessary, the debarring official notice: must follow the applicable procedures (i) Refers to the Notice of Proposed in this subpart, and subpart F of this Debarment; part, to extend the debarment.

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00076 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 OMB Guidance, Grants and Agreements § 180.945

Subpart I—Definitions is the functional equivalent of a judgment only if it includes an admission § 180.900 Adequate evidence. of guilt. Adequate evidence means information sufficient to support the reasonable be- § 180.925 Debarment. lief that a particular act or omission Debarment means an action taken by has occurred. a debarring official under Subpart H of this part to exclude a person from par- § 180.905 Affiliate. ticipating in covered transactions and Persons are affiliates of each other if, transactions covered under the Federal directly or indirectly, either one con- Acquisition Regulation (48 CFR chap- trols or has the power to control the ter 1). A person so excluded is debarred. other or a third person controls or has the power to control both. The ways a § 180.930 Debarring official. Federal agency may determine control Debarring official means an agency of- include, but are not limited to— ficial who is authorized to impose de- (a) Interlocking management or own- barment. A debarring official is ei- ership; ther— (b) Identity of interests among fam- (a) The agency head; or ily members; (b) An official designated by the (c) Shared facilities and equipment; agency head. (d) Common use of employees; or (e) A business entity which has been § 180.935 Disqualified. organized following the exclusion of a person which has the same or similar Disqualified means that a person is management, ownership, or principal prohibited from participating in speci- employees as the excluded person. fied Federal procurement or nonprocurement transactions as required § 180.910 Agent or representative. under a statute, Executive order (other than Executive Orders 12549 and 12689) Agent or representative means any per- or other authority. Examples of dis- son who acts on behalf of, or who is au- qualifications include persons prohib- thorized to commit a participant in a ited under— covered transaction. (a) The Davis-Bacon Act (40 U.S.C. § 180.915 Civil judgment. 276(a)); Civil judgment means the disposition (b) The equal employment oppor- of a civil action by any court of com- tunity acts and Executive orders; or petent jurisdiction, whether by verdict, (c) The Clean Air Act (42 U.S.C. 7606), decision, settlement, stipulation, other Clean Water Act (33 U.S.C. 1368) and disposition which creates a civil liabil- Executive Order 11738 (3 CFR, 1973 ity for the complained of wrongful Comp., p. 799). acts, or a final determination of liabil- ity under the Program Fraud Civil § 180.940 Excluded or exclusion. Remedies Act of 1988 (31 U.S.C. 3801– Excluded or exclusion means— 3812). (a) That a person or commodity is prohibited from being a participant in § 180.920 Conviction. covered transactions, whether the per- Conviction means— son has been suspended; debarred; pro- (a) A judgment or any other deter- posed for debarment under 48 CFR part mination of guilt of a criminal offense 9, subpart 9.4; voluntarily excluded; or by any court of competent jurisdiction, (b) The act of excluding a person. whether entered upon a verdict or plea, including a plea of nolo contendere; or § 180.945 System for Award Manage- (b) Any other resolution that is the ment Exclusions (SAM Exclusions). functional equivalent of a judgment, System for Award Management Exclu- including probation before judgment sions (SAM Exclusions) means the list and deferred prosecution. A disposition maintained and disseminated by the without the participation of the court General Services Administration (GSA)

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00077 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005 § 180.950 2 CFR Ch. I (1–1–21 Edition)

containing the names and other infor- (11) Donation agreements. mation about persons who are ineli- (b) A nonprocurement transaction at gible. any tier does not require the transfer [79 FR 75880, Dec. 19, 2014] of Federal funds.

§ 180.950 Federal agency. § 180.975 Notice. Federal agency means any United Notice means a written communica- States executive department, military tion served in person, sent by certified department, defense agency or any mail or its equivalent, or sent elec- other agency of the executive branch. tronically by e-mail or facsimile. (See Other agencies of the Federal Govern- § 180.615.) ment are not considered ‘‘agencies’’ for the purposes of this part unless they § 180.980 Participant. issue regulations adopting the govern- Participant means any person who mentwide Debarment and Suspension submits a proposal for or who enters system under Executive Orders 12549 into a covered transaction, including and 12689. an agent or representative of a participant. § 180.955 Indictment. Indictment means an indictment for a § 180.985 Person. criminal offense. A presentment, infor- Person means any individual, cor- mation, or other filing by a competent poration, partnership, association, unit authority charging a criminal offense of government, or legal entity, however shall be given the same effect as an in- organized. dictment. § 180.990 Preponderance of the evi- § 180.960 Ineligible or ineligibility. dence. Ineligible or ineligibility means that a Preponderance of the evidence means person or commodity is prohibited proof by information that, compared from covered transactions because of with information opposing it, leads to an exclusion or disqualification. the conclusion that the fact at issue is more probably true than not. § 180.965 Legal proceedings. Legal proceedings means any criminal § 180.995 Principal. proceeding or any civil judicial pro- Principal means— ceeding, including a proceeding under (a) An officer, director, owner, part- the Program Fraud Civil Remedies Act ner, principal investigator, or other (31 U.S.C. 3801–3812), to which the Fed- person within a participant with man- eral Government or a State or local agement or supervisory responsibilities government or quasi-governmental au- related to a covered transaction; or thority is a party. The term also includes appeals from those proceedings. (b) A consultant or other person, whether or not employed by the partic- § 180.970 Nonprocurement transaction. ipant or paid with Federal funds, who— (a) Nonprocurement transaction means (1) Is in a position to handle Federal any transaction, regardless of type (ex- funds; cept procurement contracts), includ- (2) Is in a position to influence or ing, but not limited to the following: control the use of those funds; or, (1) Grants. (3) Occupies a technical or profes- (2) Cooperative agreements. sional position capable of substantially (3) Scholarships. influencing the development or out- (4) Fellowships. come of an activity required to perform (5) Contracts of assistance. the covered transaction. (6) Loans. (7) Loan guarantees. § 180.1000 Respondent. (8) Subsidies. Respondent means a person against (9) Insurances. whom an agency has initiated a debar- (10) Payments for specified uses. ment or suspension action.

VerDate Sep<11>2014 13:23 Jun 29, 2021 Jkt 253005 PO 00000 Frm 00078 Fmt 8010 Sfmt 8010 Y:\SGML\253005.XXX 253005