This part adopts a governmentwide system of debarment and suspension forDepartment of Justice nonprocurement activities. It also provides for reciprocalexclusion of persons who have been excluded under the Federal AcquisitionRegulation, and provides for the consolidated listing of all persons who areexcluded, or disqualified by statute, executive order, or other legal authority.This part satisfies the requirements in section 3 of Executive Order 12549,“Debarment and Suspension” (3 CFR 1986 Comp., p. 189), ExecutiveOrder 12689, “Debarment and Suspension” (3 CFR 1989 Comp., p. 235)and 31 U.S.C. 6101 note (Section 2455, Public Law 103-355, 108 Stat.3327).

Portions of this part (see table at § 67.25(b)) apply to you ifyou are a(n)—

(a) Person who has been, is, or may reasonably be expected to be, aparticipant or principal in a covered transaction;

(b) Respondent (a person against whom the Department of Justice has initiateda debarment or suspension action);

(c) Department of Justice debarring or suspending official; or

(d) Department of Justice official who is authorized to enter into coveredtransactions with non-Federal parties.

(a) To protect the public interest, the Federal Government ensures theintegrity of Federal programs by conducting business only with responsiblepersons.

(b) A Federal agency uses the nonprocurement debarment and suspension systemto exclude from Federal programs persons who are not presently responsible.

(c) An exclusion is a serious action that a Federal agency may take only toprotect the public interest. A Federal agency may not exclude a person orcommodity for the purposes of punishment.

With the exceptions stated in §§ 67.120, 67.315, and 67.420,a person who is excluded by the Department of Justice or any other Federalagency may not:

(a) Be a participant in a(n) Department of Justice transaction that is acovered transaction under subpart B of this part;

(b) Be a participant in a transaction of any other Federal agency that is acovered transaction under that agency's regulation for debarment and suspension;or

(c) Act as a principal of a person participating in one of those coveredtransactions.

(a) The Department of Justice debarring official or designee may grant anexception permitting an excluded person to participate in a particular coveredtransaction. If the Department of Justice debarring official or designee grantsan exception, the exception must be in writing and state the reason(s) fordeviating from the governmentwide policy in Executive Order 12549.

(b) An exception granted by one agency for an excluded person does not extendto the covered transactions of another agency.

If any Federal agency excludes a person under its nonprocurement common ruleon or after August 25, 1995, the excluded person is also ineligible toparticipate in Federal procurement transactions under the FAR. Therefore, anexclusion under this part has reciprocal effect in Federal procurementtransactions.

If any Federal agency excludes a person under the FAR on or after August 25,1995, the excluded person is also ineligible to participate in nonprocurementcovered transactions under this part. Therefore, an exclusion under the FAR hasreciprocal effect in Federal nonprocurement transactions.

Given a cause that justifies an exclusion under this part, we may exclude anyperson who has been involved, is currently involved, or may reasonably beexpected to be involved in a covered transaction.

Check the Excluded Parties List System (EPLS) to determinewhether a person is excluded. The General Services Administration (GSA)maintains the EPLS and makes it available, as detailed in subpartE of this part. When a Federal agency takes an action to exclude a person underthe nonprocurement or procurement debarment and suspension system, the agencyenters the information about the excluded person into the EPLS.

Except if provided for in Subpart J of this part, this part—

(a) Addresses disqualified persons only to—

(1) Provide for their inclusion in the EPLS; and

(2) State responsibilities of Federal agencies and participants to check fordisqualified persons before entering into covered transactions.

(b) Does not specify the—

(1) Department of Justice transactions for which a disqualified person isineligible. Those transactions vary on a case-by-case basis, because they dependon the language of the specific statute, Executive order, or regulation thatcaused the disqualification;

(2) Entities to which the disqualification applies; or

(3) Process that the agency uses to disqualify a person. Unlike exclusion,disqualification is frequently not a discretionary action that a Federal agencytakes.

A covered transaction is a nonprocurement or procurement transaction that issubject to the prohibitions of this part. It may be a transaction at—

(a) The primary tier, between a Federal agency and a person (see appendix tothis part); or

(b) A lower tier, between a participant in a covered transaction and anotherperson.

The importance of a covered transaction depends upon who you are.

(a) As a participant in the transaction, you have the responsibilities laidout in Subpart C of this part. Those include responsibilities to the person orFederal agency at the next higher tier from whom you received the transaction,if any. They also include responsibilities if you subsequently enter into othercovered transactions with persons at the next lower tier.

(b) As a Federal official who enters into a primary tier transaction, youhave the responsibilities laid out in subpart D of this part.

(c) As an excluded person, you may not be a participant or principal in thetransaction unless—

(1) The person who entered into the transaction with you allows you tocontinue your involvement in a transaction that predates your exclusion, aspermitted under § 67.310 or § 67.415; or

(2) A(n) Department of Justice official obtains an exception from theDepartment of Justice debarring official or designee to allow you to be involvedin the transaction, as permitted under § 67.120.

All nonprocurement transactions, as defined in § 67.970, arecovered transactions unless listed in § 67.215. (See appendix to thispart.)

The following types of nonprocurement transactions are not coveredtransactions:

(a) A direct award to—

(1) A foreign government or foreign governmental entity;

(2) A public international organization;

(3) An entity owned (in whole or in part) or controlled by a foreigngovernment; or

(4) Any other entity consisting wholly or partially of one or more foreigngovernments or foreign governmental entities.

(b) A benefit to an individual as a personal entitlement without regard tothe individual's present responsibility (but benefits received in anindividual's business capacity are not excepted). For example, if a personreceives social security benefits under the Supplemental Security Incomeprovisions of the Social Security Act, 42 U.S.C. 1301 et seq., those benefitsare not covered transactions and, therefore, are not affected if the person isexcluded.

(c) Federal employment.

(d) A transaction that the Department of Justice needs to respond to anational or agency-recognized emergency or disaster.

(e) A permit, license, certificate, or similar instrument issued as a meansto regulate public health, safety, or the environment, unless the Department ofJustice specifically designates it to be a covered transaction.

(f) An incidental benefit that results from ordinary governmental operations.

(g) Any other transaction if the application of an exclusion to thetransaction is prohibited by law.

As a participant in a transaction, you will know that it is a coveredtransaction because the agency regulations governing the transaction, theappropriate agency official, or participant at the next higher tier who entersinto the transaction with you, will tell you that you must comply withapplicable portions of this part.

When you enter into a covered transaction with another person at the nextlower tier, you must verify that the person with whom you intend to do businessis not excluded or disqualified. You do this by:

(a) Checking the EPLS; or

(b) Collecting a certification from that person if allowed by this rule; or

(c) Adding a clause or condition to the covered transaction with that person.

(a) You as a participant may not enter into a covered transaction with anexcluded person, unless the Department of Justice grants an exception under§ 67.120.

(b) You may not enter into any transaction with a person who is disqualifiedfrom that transaction, unless you have obtained an exception under thedisqualifying statute, Executive order, or regulation.

(a) You as a participant may continue covered transactions with an excludedperson if the transactions were in existence when the agency excluded theperson. However, you are not required to continue the transactions, and you mayconsider termination. You should make a decision about whether to terminate andthe type of termination action, if any, only after a thorough review to ensurethat the action is proper and appropriate.

(b) You may not renew or extend covered transactions (other than no-cost timeextensions) with any excluded person, unless the Department of Justice grants anexception under § 67.120.

(a) You as a participant may continue to use the services of an excludedperson as a principal under a covered transaction if you were using the servicesof that person in the transaction before the person was excluded. However, youare not required to continue using that person's services as a principal. Youshould make a decision about whether to discontinue that person's services onlyafter a thorough review to ensure that the action is proper and appropriate.

(b) You may not begin to use the services of an excluded person as aprincipal under a covered transaction unless the Department of Justice grants anexception under § 67.120.

Yes, you as a participant are responsible for determining whether any of yourprincipals of your covered transactions is excluded or disqualified fromparticipating in the transaction. You may decide the method and frequency bywhich you do so. You may, but you are not required to, check the EPLS.

If as a participant you knowingly do business with an excluded person, we maydisallow costs, annul or terminate the transaction, issue a stop work order,debar or suspend you, or take other remedies as appropriate.

Before entering into a covered transaction with a participant at the nextlower tier, you must require that participant to—

(a) Comply with this subpart as a condition of participation in thetransaction. You may do so using any method(s), unless § 67.440requires you to use specific methods.

(b) Pass the requirement to comply with this subpart to each person with whomthe participant enters into a covered transaction at the next lower tier.

Before you enter into a covered transaction at the primary tier, you as theparticipant must notify the Department of Justice office that is entering intothe transaction with you, if you know that you or any of the principals for thatcovered transaction:

(a) Are presently excluded or disqualified;

(b) Have been convicted within the preceding three years of any of theoffenses listed in § 67.800(a) or had a civil judgment renderedagainst you for one of those offenses within that time period;

(c) Are presently indicted for or otherwise criminally or civilly charged bya governmental entity (Federal, State or local) with commission of any of theoffenses listed in § 67.800(a); or

(d) Have had one or more public transactions (Federal, State, or local)terminated within the preceding three years for cause or default.

As a primary tier participant, your disclosure of unfavorable informationabout yourself or a principal under § 67.335 will not necessarilycause us to deny your participation in the covered transaction. We will considerthe information when we determine whether to enter into the covered transaction.We also will consider any additional information or explanation that you electto submit with the disclosed information.

If we later determine that you failed to disclose information under§ 67.335 that you knew at the time you entered into the coveredtransaction, we may—

(a) Terminate the transaction for material failure to comply with the termsand conditions of the transaction; or

(b) Pursue any other available remedies, including suspension and debarment.

Before you enter into a covered transaction with a person at the next highertier, you as a lower tier participant must notify that person if you know thatyou or any of the principals are presently excluded or disqualified.

If we later determine that you failed to tell the person at the higher tierthat you were excluded or disqualified at the time you entered into the coveredtransaction with that person, we may pursue any available remedies, includingsuspension and debarment.

At any time after you enter into a lower tier covered transaction with aperson at a higher tier, you must provide immediate written notice to thatperson if you learn either that—

(a) You failed to disclose information earlier, as required by§ 67.355; or

(b) Due to changed circumstances, you or any of the principals for thetransaction now meet any of the criteria in § 67.355.

(a) You as an agency official may not enter into a covered transaction withan excluded person unless you obtain an exception under § 67.120.

(b) You may not enter into any transaction with a person who is disqualifiedfrom that transaction, unless you obtain a waiver or exception under thestatute, Executive order, or regulation that is the basis for the person'sdisqualification.

As an agency official, you may not enter into a covered transaction with aparticipant if you know that a principal of the transaction is excluded, unlessyou obtain an exception under § 67.120.

After entering into a covered transaction with a participant, you as anagency official may not approve a participant's use of an excluded person as aprincipal under that transaction, unless you obtain an exception under§ 67.120.

(a) You as an agency official may continue covered transactions with anexcluded person, or under which an excluded person is a principal, if thetransactions were in existence when the person was excluded. You are notrequired to continue the transactions, however, and you may considertermination. You should make a decision about whether to terminate and the typeof termination action, if any, only after a thorough review to ensure that theaction is proper.

(b) You may not renew or extend covered transactions (other than no-cost timeextensions) with any excluded person, or under which an excluded person is aprincipal, unless you obtain an exception under § 67.120.

If a transaction at a lower tier is subject to your approval, you as anagency official may not approve—

(a) A covered transaction with a person who is currently excluded, unless youobtain an exception under § 67.120; or

(b) A transaction with a person who is disqualified from that transaction,unless you obtain a waiver or exception under the statute, Executive order, orregulation that is the basis for the person's disqualification.

As an agency official, you must check to see if a person is excluded ordisqualified before you—

(a) Enter into a primary tier covered transaction;

(b) Approve a principal in a primary tier covered transaction;

(c) Approve a lower tier participant if agency approval of the lower tierparticipant is required; or

(d) Approve a principal in connection with a lower tier transaction if agencyapproval of the principal is required.

You check to see if a person is excluded or disqualified in two ways:

(a) You as an agency official must check the EPLS when you takeany action listed in § 67.425.

(b) You must review information that a participant gives you, as required by§ 67.335, about its status or the status of the principals of atransaction.

You as an agency official must require each participant in a primary tiercovered transaction to—

(a) Comply with subpart C of this part as a condition of participation in thetransaction; and

(b) Communicate the requirement to comply with Subpart C of this part topersons at the next lower tier with whom the primary tier participant entersinto covered transactions.

To communicate the requirements, you must include a term or condition in thetransaction requiring the participants' compliance with subpart C of this partand requiring them to include a similar term or condition in lower-tier coveredtransactions.

If a participant knowingly does business with an excluded or disqualifiedperson, you as an agency official may refer the matter for suspension anddebarment consideration. You may also disallow costs, annul or terminate thetransaction, issue a stop work order, or take any other appropriate remedy.

If you as an agency official determine that a participant failed to discloseinformation, as required by § 67.335, at the time it entered into acovered transaction with you, you may—

(a) Terminate the transaction for material failure to comply with the termsand conditions of the transaction; or

(b) Pursue any other available remedies, including suspension and debarment.

If you as an agency official determine that a lower tier participant failedto disclose information, as required by § 67.355, at the time itentered into a covered transaction with a participant at the next higher tier,you may pursue any remedies available to you, including the initiation of asuspension or debarment action.

The EPLS is a widely available source of the most currentinformation about persons who are excluded or disqualified from coveredtransactions.

(a) Federal agency officials use the EPLS to determine whetherto enter into a transaction with a person, as required under§ 67.430.

(b) Participants also may, but are not required to, use the EPLS to determine if—

(1) Principals of their transactions are excluded or disqualified, asrequired under § 67.320; or

(2) Persons with whom they are entering into covered transactions at the nextlower tier are excluded or disqualified.

(c) The EPLS is available to the general public.

In accordance with the OMB guidelines, the General Services Administration(GSA) maintains the EPLS. When a Federal agency takes an action toexclude a person under the nonprocurement or procurement debarment andsuspension system, the agency enters the information about the excluded personinto the EPLS.

(a) At a minimum, the EPLS indicates—

(1) The full name (where available) and address of each excluded ordisqualified person, in alphabetical order, with cross references if more thanone name is involved in a single action;

(2) The type of action;

(3) The cause for the action;

(4) The scope of the action;

(5) Any termination date for the action;

(6) The agency and name and telephone number of the agency point of contactfor the action; and

(7) The Dun and Bradstreet Number (DUNS), or other similar code approved bythe GSA, of the excluded or disqualified person, if available.

(b)(1) The database for the EPLS includes a field for theTaxpayer Identification Number (TIN) (the social security number (SSN) for anindividual) of an excluded or disqualified person.

(2) Agencies disclose the SSN of an individual to verify the identity of anindividual, only if permitted under the Privacy Act of 1974 and, if appropriate,the Computer Matching and Privacy Protection Act of 1988, as codified in 5U.S.C. 552(a).

Federal officials who take actions to exclude persons under this part orofficials who are responsible for identifying disqualified persons must enterthe following information about those persons into the EPLS:

(a) Information required by § 67.515(a);

(b) The Taxpayer Identification Number (TIN) of the excluded or disqualifiedperson, including the social security number (SSN) for an individual, if thenumber is available and may be disclosed under law;

(c) Information about an excluded or disqualified person, generally withinfive working days, after—

(1) Taking an exclusion action;

(2) Modifying or rescinding an exclusion action;

(3) Finding that a person is disqualified; or

(4) Finding that there has been a change in the status of a person who islisted as disqualified.

If you have questions about a person in the EPLS, ask the pointof contact for the Federal agency that placed the person's name into the EPLS. You may find the agency point of contact from the EPLS.

When we receive information from any source concerning a cause for suspensionor debarment, we will promptly report and investigate it. We refer the questionof whether to suspend or debar you to our suspending or debarring official forconsideration, if appropriate.

Suspension differs from debarment in that—

In deciding whether to suspend or debar you, we handle the actions asinformally as practicable, consistent with principles of fundamental fairness.

(a) For suspension actions, we use the procedures in this subpart and subpartG of this part.

(b) For debarment actions, we use the procedures in this subpart and subpartH of this part.

(a) The suspending or debarring official sends a written notice to the lastknown street address, facsimile number, or e-mail address of—

(1) You or your identified counsel; or

(2) Your agent for service of process, or any of your partners, officers,directors, owners, or joint venturers.

(b) The notice is effective if sent to any of these persons.

Yes, when more than one Federal agency has an interest in a suspension ordebarment, the agencies may consider designating one agency as the lead agencyfor making the decision. Agencies are encouraged to establish methods andprocedures for coordinating their suspension and debarment actions.

If you are suspended or debarred, the suspension or debarment is effective asfollows:

(a) Your suspension or debarment constitutes suspension or debarment of allof your divisions and other organizational elements from all coveredtransactions, unless the suspension or debarment decision is limited—

(1) By its terms to one or more specifically identified individuals,divisions, or other organizational elements; or

(2) To specific types of transactions.

(b) Any affiliate of a participant may be included in a suspension ordebarment action if the suspending or debarring official—

(1) Officially names the affiliate in the notice; and

(2) Gives the affiliate an opportunity to contest the action.

For purposes of actions taken under this rule, we may impute conduct asfollows:

(a) Conduct imputed from an individual to an organization. Wemay impute the fraudulent, criminal, or other improper conduct of any officer,director, shareholder, partner, employee, or other individual associated with anorganization, to that organization when the improper conduct occurred inconnection with the individual's performance of duties for or on behalf of thatorganization, or with the organization's knowledge, approval or acquiescence.The organization's acceptance of the benefits derived from the conduct isevidence of knowledge, approval or acquiescence.

(b) Conduct imputed from an organization to an individual, orbetween individuals. We may impute the fraudulent, criminal, or otherimproper conduct of any organization to an individual, or from one individual toanother individual, if the individual to whom the improper conduct is imputedeither participated in, had knowledge of, or reason to know of the improperconduct.

(c) Conduct imputed from one organization to anotherorganization. We may impute the fraudulent, criminal, or other improperconduct of one organization to another organization when the improper conductoccurred in connection with a partnership, joint venture, joint application,association or similar arrangement, or when the organization to whom theimproper conduct is imputed has the power to direct, manage, control orinfluence the activities of the organization responsible for the improperconduct. Acceptance of the benefits derived from the conduct is evidence ofknowledge, approval or acquiescence.

Yes, we may settle a debarment or suspension action at any time if it is inthe best interest of the Federal Government.

Yes, if we enter into a settlement with you in which you agree to beexcluded, it is called a voluntary exclusion and has governmentwide effect.

(a) Yes, we enter information regarding a voluntary exclusion into the EPLS.

(b) Also, any agency or person may contact us to find out the details of avoluntary exclusion.

Suspension is a serious action. Using the procedures of this subpart andsubpart F of this part, the suspending official may impose suspension only whenthat official determines that—

(a) There exists an indictment for, or other adequate evidence to suspect, anoffense listed under § 67.800(a), or

(b) There exists adequate evidence to suspect any other cause for debarmentlisted under § 67.800(b) through (d); and

(c) Immediate action is necessary to protect the public interest.

(a) In determining the adequacy of the evidence to support the suspension, the suspending official considers how much information is available, howcredible it is given the circumstances, whether or not important allegations arecorroborated, and what inferences can reasonably be drawn as a result. Duringthis assessment, the suspending official may examine the basic documents,including grants, cooperative agreements, loan authorizations, contracts, andother relevant documents.

(b) An indictment, conviction, civil judgment, or other official findings byFederal, State, or local bodies that determine factual and/or legal matters,constitutes adequate evidence for purposes of suspension actions.

(c) In deciding whether immediate action is needed to protect the publicinterest, the suspending official has wide discretion. For example, thesuspending official may infer the necessity for immediate action to protect thepublic interest either from the nature of the circumstances giving rise to acause for suspension or from potential business relationships or involvementwith a program of the Federal Government.

A suspension is effective when the suspending official signs the decision tosuspend.

After deciding to suspend you, the suspending official promptly sends you aNotice of Suspension advising you—

(a) That you have been suspended;

(b) That your suspension is based on—

(1) An indictment;

(2) A conviction;

(3) Other adequate evidence that you have committed irregularities whichseriously reflect on the propriety of further Federal Government dealings withyou; or

(4) Conduct of another person that has been imputed to you, or youraffiliation with a suspended or debarred person;

(c) Of any other irregularities in terms sufficient to put you on noticewithout disclosing the Federal Government's evidence;

(d) Of the cause(s) upon which we relied under § 67.700 forimposing suspension;

(e) That your suspension is for a temporary period pending the completion ofan investigation or resulting legal or debarment proceedings;

(f) Of the applicable provisions of this subpart, Subpart F of this part, andany other Department of Justice procedures governing suspension decision making;and

(g) Of the governmentwide effect of your suspension from procurement andnonprocurement programs and activities.

If you as a respondent wish to contest a suspension, you or yourrepresentative must provide the suspending official with information inopposition to the suspension. You may do this orally or in writing, but anyinformation provided orally that you consider important must also be submittedin writing for the official record.

(a) As a respondent you or your representative must either send, or makearrangements to appear and present, the information and argument to thesuspending official within 30 days after you receive the Notice of Suspension.

(b) We consider the notice to be received by you—

(1) When delivered, if we mail the notice to the last known street address,or five days after we send it if the letter is undeliverable;

(2) When sent, if we send the notice by facsimile or five days after we sendit if the facsimile is undeliverable; or

(3) When delivered, if we send the notice by e-mail or five days after wesend it if the e-mail is undeliverable.

(a) You as a respondent will not have an additional opportunity to challengethe facts if the suspending official determines that—

(1) Your suspension is based upon an indictment, conviction, civil judgment,or other finding by a Federal, State, or local body for which an opportunity tocontest the facts was provided;

(2) Your presentation in opposition contains only general denials toinformation contained in the Notice of Suspension;

(3) The issues raised in your presentation in opposition to the suspensionare not factual in nature, or are not material to the suspending official'sinitial decision to suspend, or the official's decision whether to continue thesuspension; or

(4) On the basis of advice from the Department of Justice, an office of theUnited States Attorney, a State attorney general's office, or a State or localprosecutor's office, that substantial interests of the government in pending orcontemplated legal proceedings based on the same facts as the suspension wouldbe prejudiced by conducting fact-finding.

(b) You will have an opportunity to challenge the facts if the suspendingofficial determines that—

(1) The conditions in paragraph (a) of this section do not exist; and

(2) Your presentation in opposition raises a genuine dispute over factsmaterial to the suspension.

(c) If you have an opportunity to challenge disputed material facts underthis section, the suspending official or designee must conduct additionalproceedings to resolve those facts.

(a) Suspension proceedings are conducted in a fair and informal manner. Thesuspending official may use flexible procedures to allow you to present mattersin opposition. In so doing, the suspending official is not required to followformal rules of evidence or procedure in creating an official record upon whichthe official will base a final suspension decision.

(b) You as a respondent or your representative must submit any documentaryevidence you want the suspending official to consider.

(a) If fact-finding is conducted—

(1) You may present witnesses and other evidence, and confront any witnesspresented; and

(2) The fact-finder must prepare written findings of fact for the record.

(b) A transcribed record of fact-finding proceedings must be made, unless youas a respondent and the Department of Justice agree to waive it in advance. Ifyou want a copy of the transcribed record, you may purchase it.

(a) The suspending official bases the decision on all information containedin the official record. The record includes—

(1) All information in support of the suspending official's initial decisionto suspend you;

(2) Any further information and argument presented in support of, oropposition to, the suspension; and

(3) Any transcribed record of fact-finding proceedings.

(b) The suspending official may refer disputed material facts to anotherofficial for findings of fact. The suspending official may reject any resultingfindings, in whole or in part, only after specifically determining them to bearbitrary, capricious, or clearly erroneous.

The suspending official must make a written decision whether to continue,modify, or terminate your suspension within 45 days of closing the officialrecord. The official record closes upon the suspending official's receipt offinal submissions, information and findings of fact, if any. The suspendingofficial may extend that period for good cause.

(a) If legal or debarment proceedings are initiated at the time of, or duringyour suspension, the suspension may continue until the conclusion of thoseproceedings. However, if proceedings are not initiated, a suspension may notexceed 12 months.

(b) The suspending official may extend the 12 month limit under paragraph (a)of this section for an additional 6 months if an office of a U.S. AssistantAttorney General, U.S. Attorney, or other responsible prosecuting officialrequests an extension in writing. In no event may a suspension exceed 18 monthswithout initiating proceedings under paragraph (a) of this section.

(c) The suspending official must notify the appropriate officials underparagraph (b) of this section of an impending termination of a suspension atleast 30 days before the 12 month period expires to allow the officials anopportunity to request an extension.

We may debar a person for—

(a) Conviction of or civil judgment for—

(1) Commission of fraud or a criminal offense in connection with obtaining,attempting to obtain, or performing a public or private agreement ortransaction;

(2) Violation of Federal or State antitrust statutes, including thoseproscribing price fixing between competitors, allocation of customers betweencompetitors, and bid rigging;

(3) Commission of embezzlement, theft, forgery, bribery, falsification ordestruction of records, making false statements, tax evasion, receiving stolenproperty, making false claims, or obstruction of justice; or

(4) Commission of any other offense indicating a lack of business integrityor business honesty that seriously and directly affects your presentresponsibility;

(b) Violation of the terms of a public agreement or transaction so serious asto affect the integrity of an agency program, such as—

(1) A willful failure to perform in accordance with the terms of one or morepublic agreements or transactions;

(2) A history of failure to perform or of unsatisfactory performance of oneor more public agreements or transactions; or

(3) A willful violation of a statutory or regulatory provision or requirementapplicable to a public agreement or transaction;

(c) Any of the following causes:

(1) A nonprocurement debarment by any Federal agency taken before October 1,1988, or a procurement debarment by any Federal agency taken pursuant to 48 CFRpart 9, subpart 9.4, before August 25, 1995;

(2) Knowingly doing business with an ineligible person, except as permittedunder § 67.120;

(3) Failure to pay a single substantial debt, or a number of outstandingdebts (including disallowed costs and overpayments, but not including sums owed the Federal Government under the Internal Revenue Code) owed to any Federalagency or instrumentality, provided the debt is uncontested by the debtor or, ifcontested, provided that the debtor's legal and administrative remedies havebeen exhausted;

(4) Violation of a material provision of a voluntary exclusion agreemententered into under § 67.640 or of any settlement of a debarment orsuspension action; or

(5) Violation of the provisions of the Drug-Free Workplace Act of 1988 (41U.S.C. 701); or

(d) Any other cause of so serious or compelling a nature that it affects yourpresent responsibility.

After consideration of the causes in § 67.800 of this subpart, ifthe debarring official proposes to debar you, the official sends you a Notice ofProposed Debarment, pursuant to § 67.615, advising you—

(a) That the debarring official is considering debarring you;

(b) Of the reasons for proposing to debar you in terms sufficient to put youon notice of the conduct or transactions upon which the proposed debarment isbased;

(c) Of the cause(s) under § 67.800 upon which the debarringofficial relied for proposing your debarment;

(d) Of the applicable provisions of this subpart, Subpart F of this part, andany other Department of Justice procedures governing debarment; and

(e) Of the governmentwide effect of a debarment from procurement andnonprocurement programs and activities.

A debarment is not effective until the debarring official issues a decision.The debarring official does not issue a decision until the respondent has had anopportunity to contest the proposed debarment.

If you as a respondent wish to contest a proposed debarment, you or yourrepresentative must provide the debarring official with information inopposition to the proposed debarment. You may do this orally or in writing, butany information provided orally that you consider important must also besubmitted in writing for the official record.

(a) As a respondent you or your representative must either send, or makearrangements to appear and present, the information and argument to thedebarring official within 30 days after you receive the Notice of ProposedDebarment.

(b) We consider the Notice of Proposed Debarment to be received by you—

(1) When delivered, if we mail the notice to the last known street address,or five days after we send it if the letter is undeliverable;

(2) When sent, if we send the notice by facsimile or five days after we sendit if the facsimile is undeliverable; or

(3) When delivered, if we send the notice by e-mail or five days after wesend it if the e-mail is undeliverable.

(a) In addition to any information and argument in opposition, as arespondent your submission to the debarring official must identify—

(1) Specific facts that contradict the statements contained in the Notice ofProposed Debarment. Include any information about any of the factors listed in§ 67.860. A general denial is insufficient to raise a genuine disputeover facts material to the debarment;

(2) All existing, proposed, or prior exclusions under regulationsimplementing E.O. 12549 and all similar actions taken by Federal, State, orlocal agencies, including administrative agreements that affect only thoseagencies;

(3) All criminal and civil proceedings not included in the Notice of ProposedDebarment that grew out of facts relevant to the cause(s) stated in the notice;and

(4) All of your affiliates.

(b) If you fail to disclose this information, or provide false information,the Department of Justice may seek further criminal, civil or administrativeaction against you, as appropriate.

(a) You as a respondent will not have an additional opportunity to challengethe facts if the debarring official determines that—

(1) Your debarment is based upon a conviction or civil judgment;

(2) Your presentation in opposition contains only general denials toinformation contained in the Notice of Proposed Debarment; or

(3) The issues raised in your presentation in opposition to the proposeddebarment are not factual in nature, or are not material to the debarringofficial's decision whether to debar.

(b) You will have an additional opportunity to challenge the facts if thedebarring official determines that—

(1) The conditions in paragraph (a) of this section do not exist; and

(2) Your presentation in opposition raises a genuine dispute over factsmaterial to the proposed debarment.

(c) If you have an opportunity to challenge disputed material facts underthis section, the debarring official or designee must conduct additionalproceedings to resolve those facts.

(a) Debarment proceedings are conducted in a fair and informal manner. Thedebarring official may use flexible procedures to allow you as a respondent topresent matters in opposition. In so doing, the debarring official is notrequired to follow formal rules of evidence or procedure in creating an officialrecord upon which the official will base the decision whether to debar.

(b) You or your representative must submit any documentary evidence you wantthe debarring official to consider.

(a) If fact-finding is conducted—

(1) You may present witnesses and other evidence, and confront any witnesspresented; and

(2) The fact-finder must prepare written findings of fact for the record.

(b) A transcribed record of fact-finding proceedings must be made, unless youas a respondent and the Department of Justice agree to waive it in advance. Ifyou want a copy of the transcribed record, you may purchase it.

(a) The debarring official may debar you for any of the causes in§ 67.800. However, the official need not debar you even if a causefor debarment exists. The official may consider the seriousness of your acts oromissions and the mitigating or aggravating factors set forth at§ 67.860.

(b) The debarring official bases the decision on all information contained inthe official record. The record includes—

(1) All information in support of the debarring official's proposeddebarment;

(2) Any further information and argument presented in support of, or inopposition to, the proposed debarment; and

(3) Any transcribed record of fact-finding proceedings.

(c) The debarring official may refer disputed material facts to anotherofficial for findings of fact. The debarring official may reject any resultantfindings, in whole or in part, only after specifically determining them to bearbitrary, capricious, or clearly erroneous.

(a) In any debarment action, we must establish the cause for debarment by apreponderance of the evidence.

(b) If the proposed debarment is based upon a conviction or civil judgment,the standard of proof is met.

(a) We have the burden to prove that a cause for debarment exists.

(b) Once a cause for debarment is established, you as a respondent have theburden of demonstrating to the satisfaction of the debarring official that youare presently responsible and that debarment is not necessary.

This section lists the mitigating and aggravating factors that the debarringofficial may consider in determining whether to debar you and the length of yourdebarment period. The debarring official may consider other factors ifappropriate in light of the circumstances of a particular case. The existence ornonexistence of any factor, such as one of those set forth in this section, isnot necessarily determinative of your present responsibility. In making adebarment decision, the debarring official may consider the following factors:

(a) The actual or potential harm or impact that results or may result fromthe wrongdoing.

(b) The frequency of incidents and/or duration of the wrongdoing.

(c) Whether there is a pattern or prior history of wrongdoing. For example,if you have been found by another Federal agency or a State agency to haveengaged in wrongdoing similar to that found in the debarment action, theexistence of this fact may be used by the debarring official in determining thatyou have a pattern or prior history of wrongdoing.

(d) Whether you are or have been excluded or disqualified by an agency of theFederal Government or have not been allowed to participate in State or localcontracts or assistance agreements on a basis of conduct similar to one or moreof the causes for debarment specified in this part.

(e) Whether you have entered into an administrative agreement with a Federalagency or a State or local government that is not governmentwide but is based onconduct similar to one or more of the causes for debarment specified in thispart.

(f) Whether and to what extent you planned, initiated, or carried out thewrongdoing.

(g) Whether you have accepted responsibility for the wrongdoing and recognizethe seriousness of the misconduct that led to the cause for debarment.

(h) Whether you have paid or agreed to pay all criminal, civil andadministrative liabilities for the improper activity, including anyinvestigative or administrative costs incurred by the government, and have madeor agreed to make full restitution.

(i) Whether you have cooperated fully with the government agencies during theinvestigation and any court or administrative action. In determining the extentof cooperation, the debarring official may consider when the cooperation beganand whether you disclosed all pertinent information known to you.

(j) Whether the wrongdoing was pervasive within your organization.

(k) The kind of positions held by the individuals involved in the wrongdoing.

(l) Whether your organization took appropriate corrective action or remedialmeasures, such as establishing ethics training and implementing programs toprevent recurrence.

(m) Whether your principals tolerated the offense.

(n) Whether you brought the activity cited as a basis for the debarment tothe attention of the appropriate government agency in a timely manner.

(o) Whether you have fully investigated the circumstances surrounding thecause for debarment and, if so, made the result of the investigation availableto the debarring official.

(p) Whether you had effective standards of conduct and internal controlsystems in place at the time the questioned conduct occurred.

(q) Whether you have taken appropriate disciplinary action against theindividuals responsible for the activity which constitutes the cause fordebarment.

(r) Whether you have had adequate time to eliminate the circumstances withinyour organization that led to the cause for the debarment.

(s) Other factors that are appropriate to the circumstances of a particularcase.

(a) The debarring official must make a written decision whether to debarwithin 45 days of closing the official record. The official record closes uponthe debarring official's receipt of final submissions, information and findingsof fact, if any. The debarring official may extend that period for good cause.

(b) The debarring official sends you written notice, pursuant to§ 67.615 that the official decided, either—

(1) Not to debar you; or

(2) To debar you. In this event, the notice:

(i) Refers to the Notice of Proposed Debarment;

(ii) Specifies the reasons for your debarment;

(iii) States the period of your debarment, including the effective dates; and

(iv) Advises you that your debarment is effective for covered transactionsand contracts that are subject to the Federal Acquisition Regulation (48 CFRchapter 1), throughout the executive branch of the Federal Government unless anagency head or an authorized designee grants an exception.

Yes, as a debarred person you may ask the debarring official to reconsiderthe debarment decision or to reduce the time period or scope of the debarment.However, you must put your request in writing and support it with documentation.

The debarring official may reduce or terminate your debarment based on—

(a) Newly discovered material evidence;

(b) A reversal of the conviction or civil judgment upon which your debarmentwas based;

(c) A bona fide change in ownership or management;

(d) Elimination of other causes for which the debarment was imposed; or

(e) Other reasons the debarring official finds appropriate.

(a) Yes, the debarring official may extend a debarment for an additionalperiod, if that official determines that an extension is necessary to protectthe public interest.

(b) However, the debarring official may not extend a debarment solely on thebasis of the facts and circumstances upon which the initial debarment action wasbased.

(c) If the debarring official decides that a debarment for an additionalperiod is necessary, the debarring official must follow the applicableprocedures in this subpart, and subpart F of this part, to extend the debarment.

Adequate evidence means information sufficient to support thereasonable belief that a particular act or omission has occurred.

Persons are affiliates of each other if, directly orindirectly, either one controls or has the power to control the other or a thirdperson controls or has the power to control both. The ways we use to determinecontrol include, but are not limited to—

(a) Interlocking management or ownership;

(b) Identity of interests among family members;

(c) Shared facilities and equipment;

(d) Common use of employees; or

(e) A business entity which has been organized following the exclusion of aperson which has the same or similar management, ownership, or principalemployees as the excluded person.

Agency means any United States executive department, militarydepartment, defense agency, or any other agency of the executive branch. Otheragencies of the Federal government are not considered “agencies” forthe purposes of this part unless they issue regulations adopting thegovernmentwide Debarment and Suspension system under Executive orders 12549 and12689.

Agent or representative means any person who acts on behalf of,or who is authorized to commit, a participant in a covered transaction.

Civil judgment means the disposition of a civil action by anycourt of competent jurisdiction, whether by verdict, decision, settlement,stipulation, other disposition which creates a civil liability for thecomplained of wrongful acts, or a final determination of liability under theProgram Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-3812).

Conviction means—

(a) A judgment or any other determination of guilt of a criminal offense byany court of competent jurisdiction, whether entered upon a verdict or plea,including a plea of nolo contendere; or

(b) Any other resolution that is the functional equivalent of a judgment,including probation before judgment and deferred prosecution. A dispositionwithout the participation of the court is the functional equivalent of ajudgment only if it includes an admission of guilt.

Debarment means an action taken by a debarring official undersubpart H of this part to exclude a person from participating in coveredtransactions and transactions covered under the Federal Acquisition Regulation(48 CFR chapter 1). A person so excluded is debarred.

(a) Debarring official means an agency official who isauthorized to impose debarment. A debarring official is either—

(1) The agency head; or

(2) An official designated by the agency head.

(b) [Reserved]

Disqualified means that a person is prohibited fromparticipating in specified Federal procurement or nonprocurement transactions asrequired under a statute, Executive order (other than Executive Orders 12549 and12689) or other authority. Examples of disqualifications include personsprohibited under—

(a) The Davis-Bacon Act (40 U.S.C. 276(a));

(b) The equal employment opportunity acts and Executive orders; or

(c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C. 1368) andExecutive Order 11738 (3 CFR, 1973 Comp., p. 799).

Excluded or exclusion means—

(a) That a person or commodity is prohibited from being a participant incovered transactions, whether the person has been suspended; debarred; proposedfor debarment under 48 CFR part 9, subpart 9.4; voluntarily excluded; or

(b) The act of excluding a person.

Excluded Parties List System (EPLS) means the list maintainedand disseminated by the General Services Administration (GSA) containing thenames and other information about persons who are ineligible. The EPLS system includes the printed version entitled, “List ofParties Excluded or Disqualified from Federal Procurement and NonprocurementPrograms,” so long as published.

Indictment means an indictment for a criminal offense. Apresentment, information, or other filing by a competent authority charging acriminal offense shall be given the same effect as an indictment.

Ineligible or ineligibility means that a person or commodity isprohibited from covered transactions because of an exclusion ordisqualification.

Legal proceedings means any criminal proceeding or any civiljudicial proceeding, including a proceeding under the Program Fraud CivilRemedies Act (31 U.S.C. 3801-3812), to which the Federal Government or aState or local government or quasi-governmental authority is a party. The termalso includes appeals from those proceedings.

(a) Nonprocurement transaction means any transaction,regardless of type (except procurement contracts), including, but not limited tothe following:

(1) Grants.

(2) Cooperative agreements.

(3) Scholarships.

(4) Fellowships.

(5) Contracts of assistance.

(6) Loans.

(7) Loan guarantees.

(8) Subsidies.

(9) Insurances.

(10) Payments for specified uses.

(11) Donation agreements.

(b) A nonprocurement transaction at any tier does not require the transfer ofFederal funds.

Notice means a written communication served in person, sent bycertified mail or its equivalent, or sent electronically by e-mail or facsimile.(See § 67. 615.)

Participant means any person who submits a proposal for or whoenters into a covered transaction, including an agent or representative of aparticipant.

Person means any individual, corporation, partnership,association, unit of government, or legal entity, however organized.

Preponderance of the evidence means proof by information that,compared with information opposing it, leads to the conclusion that the fact atissue is more probably true than not.

Principal means—

(a) An officer, director, owner, partner, principal investigator, or otherperson within a participant with management or supervisory responsibilitiesrelated to a covered transaction; or

(b) A consultant or other person, whether or not employed by the participantor paid with Federal funds, who—

(1) Is in a position to handle Federal funds;

(2) Is in a position to influence or control the use of those funds; or,

(3) Occupies a technical or professional position capable of substantiallyinfluencing the development or outcome of an activity required to perform thecovered transaction.

Respondent means a person against whom an agency has initiateda debarment or suspension action.

(a) State means—

(1) Any of the states of the United States;

(2) The District of Columbia;

(3) The Commonwealth of Puerto Rico;

(4) Any territory or possession of the United States; or

(5) Any agency or instrumentality of a state.

(b) For purposes of this part, State does not includeinstitutions of higher education, hospitals, or units of local government.

Suspension is an action taken by a suspending official undersubpart G of this part that immediately prohibits a person from participating incovered transactions and transactions covered under the Federal AcquisitionRegulation (48 CFR chapter 1) for a temporary period, pending completion of anagency investigation and any judicial or administrative proceedings that mayensue. A person so excluded is suspended.

(a) Voluntary exclusion means a person's agreement to beexcluded under the terms of a settlement between the person and one or moreagencies. Voluntary exclusion must have governmentwide effect.

(b) Voluntarily excluded means the status of a person who hasagreed to a voluntary exclusion.