[Federal Register Volume 77, Number 29 (Monday, February 13, 2012)]
[Notices]
[Pages 7579-7581]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3307]
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GOVERNMENT ACCOUNTABILITY OFFICE
Debarment, Suspension, and Ineligibility of Contractors
AGENCY: Government Accountability Office.
ACTION: Policy statement.
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SUMMARY: On September 30, 2011, the Government Accountability Office
(GAO) provided notice of its proposed policy to adopt the policies and
procedures contained in the Federal Acquisition Regulation (FAR)
regarding the debarment, suspension, and ineligibility of government
contractors. Comments on GAO's policy were due on or before November
14, 2011. GAO received two comments. Both comments expressed support
for GAO's efforts to adopt policies and procedures regarding the
debarment, suspension, and ineligibility of government contractors.
Neither comment suggested any changes to GAO's policy statement. GAO is
adopting, with minor changes, the policy statement published in the
Federal Register on September 30, as set forth below.
As a legislative branch agency, GAO is not subject to the
requirements of the FAR. However, it is GAO's general policy to follow
the FAR, as appropriate and applicable. Mandatory application of the
FAR is not to be inferred from
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GAO's adoption of this policy. Further, GAO's procurement rules are not
contained in the Code of Federal Regulations, but instead are contained
in an internal GAO document referred to as ``Government Accountability
Office Procurement Guidelines'' (hereinafter, GAO's Procurement Order).
As such, GAO's policy regarding debarment and suspension will be added
as a chapter to GAO's Procurement Order.
DATES: This policy is effective February 13, 2012.
ADDRESSES: Questions concerning this policy can be addressed to
Government Accountability Office, Office of the General Counsel, Attn:
Legal Services, Room 7838, 441 G Street NW., Washington, DC 20548.
FOR FURTHER INFORMATION CONTACT: John A. Bielec, Assistant General
Counsel, 202-512-2846 or email, [email protected].
SUPPLEMENTARY INFORMATION: Under GAO's policy, GAO will follow FAR
Subpart 9.4. GAO's Procurement Order, GAO Order 0625.1, states that it
is GAO's policy to follow the FAR and GAO has long-maintained
procedures, consistent with FAR Subpart 9.4, that ensure that it
contracts only with those entities and individuals (hereinafter,
contractors) who are responsible. However, GAO's Procurement Order does
not explicitly reference the debarment and suspension procedures
contained in FAR Subpart 9.4. To make clear that FAR Subpart 9.4
applies, GAO will amend its Procurement Order to formally and
explicitly adopt FAR Subpart 9.4.
Except as provided in FAR Subpart 9.4, GAO will not solicit offers
from, award contracts to, or consent to subcontracts with, contractors
who are listed on the Excluded Parties List System (EPLS), which is
maintained by the General Services Administration. Further, if GAO
debars, proposes for debarment, or suspends a contractor, GAO will,
consistent with FAR Subpart 9.4, list that contractor in the EPLS.
Given that GAO is a legislative branch agency, the listing of a
contractor in the EPLS by GAO will have mandatory effect only as to
GAO. Consistent with FAR 9.405-1, GAO may continue an existing contract
with a contractor who is later debarred, proposed for debarment, or
suspended.
Consistent with the definitions of ``debarring official'' and
``suspending official'' contained at FAR 9.403, the Comptroller
General, as the head of GAO, will serve as the debarring official and
suspending official (hereinafter, debarment/suspension official). The
Comptroller General may designate another GAO official to serve as the
debarment/suspension official. The Comptroller General will also be
responsible for deciding whether to solicit offers from, award
contracts to, or consent to subcontracts with contractors who have been
debarred, suspended, or proposed for debarment, and whether to
terminate a current contract or subcontract in existence at the time
the contractor was debarred, suspended, or proposed for debarment.
GAO's Acquisition Management office (AM), which is responsible for
the majority of GAO's contracting activities, will be the GAO unit with
primary responsibility for investigating and referring potential
debarment and suspension actions to the debarment/suspension official
for his or her consideration. GAO's procurement activities are largely
centralized in AM, which is staffed by contracting officers and other
acquisition professionals. As such, AM staff has the required technical
knowledge to handle debarment and suspension referrals and is in the
best position to learn of matters that may warrant debarment and/or
suspension. Moreover, AM is the first point of contact for Contracting
Officers' Representatives, who have direct knowledge of any problems
with contractor performance. Thus, individuals--including GAO employees
and members of the public--who believe that there may be grounds to
debar or suspend a contractor should contact AM and provide them with
all relevant information. Whenever AM learns of information that
indicates there may be grounds for debarring or suspending a
contractor, AM will gather appropriate information and refer the matter
to the debarment/suspension official. All such referrals will include a
recommendation by the Director of AM as to a proposed course of action.
Likewise, AM will have responsibility for recommending to the
Comptroller General whether or not to continue current contracts with,
solicit offers from, award contracts to, or consent to subcontracts
with a contractor who is debarred, suspended, or proposed for
debarment.
Given its central role in GAO's procurement process, AM, in
consultation with GAO's Office of General Counsel, will also be
responsible for establishing written procedures that address the key
aspects of GAO's debarment/suspension program.
Accordingly, the Government Accountability Office has adopted the
following policy and will incorporate it into GAO's Procurement Order:
GAO will follow the policies and procedures contained at FAR
Subpart 9.4--Debarment, Suspension, and Ineligibility. GAO will not
solicit offers from, award contracts to, or consent to subcontracts
with contractors who are listed on the Excluded Parties List System
(EPLS), except as otherwise provided for in FAR Subpart 9.4. GAO will
report to the EPLS any contractor GAO debars, suspends, or proposes for
debarment. Such action will have mandatory application only to GAO.
Notwithstanding the debarment, suspension, or proposed debarment of a
contractor, GAO may continue contracts or subcontracts in existence at
the time the contractor was debarred, suspended, or proposed for
debarment, unless the Comptroller General (CG) directs otherwise.
The CG or a designee will serve as the debarring official and
suspending official (debarment/suspension official). The CG will also
decide whether to solicit offers from, award contracts to, or consent
to subcontracts with contractors who have been debarred, suspended, or
proposed for debarment and whether to terminate a current contract or
subcontract in existence at the time the contractor was debarred,
suspended, or proposed for debarment.
Acquisition Management (AM) will have primary responsibility for
investigating and referring potential debarment/suspension actions to
the debarment/suspension official for consideration. As such, any
person who believes that there may be grounds to debar or suspend a
person or entity from contracting with GAO should contact AM and
provide them with all relevant information. AM will also have
responsibility for recommending to the CG whether or not to continue
current contracts with, solicit offers from, award contracts to, or
consent to subcontracts with a contractor who is debarred, suspended,
or proposed for debarment.
In consultation with the Office of General Counsel, AM will
establish and maintain written procedures for:
(1) The prompt reporting, investigation, and referral to the
debarment/suspension official of matters appropriate for that
official's consideration. All debarment/suspension referrals shall
include a recommendation by the Director of AM as to a proposed course
of action;
(2) The debarment decisionmaking process, which shall afford the
contractor (and any specifically named affiliates) an opportunity to
submit, in person, in writing, or through a representative, information
and argument in opposition to the proposed debarment;
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(3) The suspension decisionmaking process, which shall afford the
contractor (and any specifically named affiliates) an opportunity,
following the imposition of suspension, to submit, in person, in
writing, or through a representative, information and argument in
opposition to the suspension;
(4) Recommending to the CG whether or not to solicit offers from,
award contracts to, or consent to subcontracts with a contractor who is
debarred, suspended, or proposed for debarment; and
(5) Recommending to the CG whether or not to continue current
contracts with a contractor or subcontractor who is debarred,
suspended, or proposed for debarment.
OGC will review for legal sufficiency:
(1) Referrals by AM to the debarment/suspension official;
(2) Recommendations by AM to the CG that GAO solicit offers from,
award contracts to, or consent to subcontracts with a contractor who is
debarred, suspended, or proposed for debarment;
(3) Recommendations by AM to the CG to terminate a current contract
because a contractor or subcontractor was subsequently debarred,
suspended, or proposed for debarment; and
(4) Notices of proposed debarment, notices of suspension, or any
other communication to a contractor regarding that contractor's
potential or actual suspension or debarment.
Lynn H. Gibson,
General Counsel, U.S. Government Accountability Office.
[FR Doc. 2012-3307 Filed 2-10-12; 8:45 am]
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