[Title 31 CFR 19]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 31 - MONEY AND FINANCE: TREASURY]
[Part 19 - GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)]
[From the U.S. Government Printing Office]
31MONEY AND FINANCE: TREASURY12002-07-012002-07-01falseGOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)19PART 19MONEY AND FINANCE: TREASURY
PART 19--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT) AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)--Table of Contents
Subpart A--General
Sec.
19.100 Purpose.
19.105 Definitions.
19.110 Coverage.
19.115 Policy.
Subpart B--Effect of Action
19.200 Debarment or suspension.
19.205 Ineligible persons.
19.210 Voluntary exclusion.
19.215 Exception provision.
19.220 Continuation of covered transactions.
19.225 Failure to adhere to restrictions.
Subpart C--Debarment
19.300 General.
19.305 Causes for debarment.
19.310 Procedures.
19.311 Investigation and referral.
19.312 Notice of proposed debarment.
19.313 Opportunity to contest proposed debarment.
19.314 Debarring official's decision.
19.315 Settlement and voluntary exclusion.
19.320 Period of debarment.
19.325 Scope of debarment.
Subpart D--Suspension
19.400 General.
19.405 Causes for suspension.
19.410 Procedures.
19.411 Notice of suspension.
19.412 Opportunity to contest suspension.
19.413 Suspending official's decision.
19.415 Period of suspension.
19.420 Scope of suspension.
Subpart E--Responsibilities of GSA, Agency and Participants
19.500 GSA responsibilities.
19.505 Department of the Treasury responsibilities.
19.510 Participant's responsibilities.
Subpart F--Drug-Free Workplace Requirements (Grants)
19.600 Purpose.
19.605 Definitions.
19.610 Coverage.
19.615 Grounds for suspension of payments, suspension or termination of
grants, or suspension or debarment.
19.620 Effect of violation.
19.625 Exception provision.
19.630 Certification requirements and procedures.
19.635 Reporting of and employee sanctions for convictions of criminal
drug offenses.
Appendix A to Part 19--Certification Regarding Debarment, Suspension,
and Other Responsibility Matters--Primary Covered Transactions
Appendix B to Part 19--Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion--Lower Tier Covered
Transactions
Appendix C to Part 19--Certification Regarding Drug-Free Workplace
Requirements
Authority: E.O. 12549; sec. 5151-5160 of the Drug-Free Workplace Act
of 1988 (Pub. L.
[[Page 217]]
100-690, Title V, Subtitle D; 41 U.S.C. 701 et seq.); 31 U.S.C. 321.
Source: 53 FR 19187, and 19204, May 26, 1988, unless otherwise
noted. Redesignated at 54 FR 4958, Jan. 31, 1989.
Cross Reference: See also Office of Management and Budget notice
published at 55 FR 21679, May 25, 1990, and 60 FR 33036, June 26, 1995.
Subpart A--General
Sec. 19.100 Purpose.
(a) Executive Order (E.O.) 12549 provides that, to the extent
permitted by law, Executive departments and agencies shall participate
in a governmentwide system for nonprocurement debarment and suspension.
A person who is debarred or suspended shall be excluded from Federal
financial and nonfinancial assistance and benefits under Federal
programs and activities. Debarment or suspension of a participant in a
program by one agency shall have governmentwide effect.
(b) These regulations implement section 3 of E.O. 12549 and the
guidelines promulgated by the Office of Management and Budget under
section 6 of the E.O. by:
(1) Prescribing the programs and activities that are covered by the
governmentwide system;
(2) Prescribing the governmentwide criteria and governmentwide
minimum due process procedures that each agency shall use;
(3) Providing for the listing of debarred and suspended
participants, participants declared ineligible (see definition of
``ineligible'' in Sec. 19.105), and participants who have voluntarily
excluded themselves from participation in covered transactions;
(4) Setting forth the consequences of a debarment, suspension,
determination of ineligibility, or voluntary exclusion; and
(5) Offering such other guidance as necessary for the effective
implementation and administration of the governmentwide system.
(c) These regulations also implement Executive Order 12689 (3 CFR,
1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec.
2455, 108 Stat. 3327) by--
(1) Providing for the inclusion in the List of Parties Excluded from
Federal Procurement and Nonprocurement Programs all persons proposed for
debarment, debarred or suspended under the Federal Acquisition
Regulation, 48 CFR Part 9, subpart 9.4; persons against which
governmentwide exclusions have been entered under this part; and persons
determined to be ineligible; and
(2) Setting forth the consequences of a debarment, suspension,
determination of ineligibility, or voluntary exclusion.
(d) Although these regulations cover the listing of ineligible
participants and the effect of such listing, they do not prescribe
policies and procedures governing declarations of ineligibility.
[60 FR 33040, 33052, June 26, 1995]
Sec. 19.105 Definitions.
The following definitions apply to this part:
Adequate evidence. Information sufficient to support the reasonable
belief that a particular act or omission has occurred.
Affiliate. Persons are affiliates of each other if, directly or
indirectly, either one controls or has the power to control the other,
or, a third person controls or has the power to control both. Indicia of
control include, but are not limited to: interlocking management or
ownership, identity of interests among family members, shared facilities
and equipment, common use of employees, or a business entity organized
following the suspension or debarment of a person which has the same or
similar management, ownership, or principal employees as the suspended,
debarred, ineligible, or voluntarily excluded person.
Agency. Any executive department, military department or defense
agency or other agency of the executive branch, excluding the
independent regulatory agencies.
Civil judgment. The disposition of a civil action by any court of
competent jurisdiction, whether entered by verdict, decision,
settlement, stipulation, or otherwise creating a civil liability for the
wrongful acts complained of; or a final determination of liability under
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).
[[Page 218]]
Conviction. A judgment or conviction of a criminal offense by any
court of competent jurisdiction, whether entered upon a verdict or a
plea, including a plea of nolo contendere.
Debarment. An action taken by a debarring official in accordance
with these regulations to exclude a person from participating in covered
transactions. A person so excluded is ``debarred.''
Debarring official. An official authorized to impose debarment. The
debarring official is either:
(1) The agency head, or
(2) An official designated by the agency head.
Indictment. Indictment for a criminal offense. An information or
other filing by competent authority charging a criminal offense shall be
given the same effect as an indictment.
Ineligible. Excluded from participation in Federal nonprocurement
programs pursuant to a determination of ineligibility under statutory,
executive order, or regulatory authority, other than Executive Order
12549 and its agency implementing regulations; for exemple, excluded
pursuant to the Davis-Bacon Act and its implementing regulations, the
equal employment opportunity acts and executive orders, or the
environmental protection acts and executive orders. A person is
ineligible where the determination of ineligibility affects such
person's eligibility to participate in more than one covered
transaction.
Legal proceedings. Any criminal proceeding or any civil judicial
proceeding to which the Federal Government or a State or local
government or quasi-governmental authority is a party. The term includes
appeals from such proceedings.
List of Parties Excluded from Federal Procurement and Nonprocurement
Programs. A list compiled, maintained and distributed by the General
Services Administration (GSA) containing the names and other information
about persons who have been debarred, suspended, or voluntarily excluded
under Executive Orders 12549 and 12689 and these regulations or 48 CFR
part 9, subpart 9.4, persons who have been proposed for debarment under
48 CFR part 9, subpart 9.4, and those persons who have been determined
to be ineligible.
Notice. A written communication served in person or sent by
certified mail, return receipt requested, or its equivalent, to the last
known address of a party, its identified counsel, its agent for service
of process, or any partner, officer, director, owner, or joint venturer
of the party. Notice, if undeliverable, shall be considered to have been
received by the addressee five days after being properly sent to the
last address known by the agency.
Participant. Any person who submits a proposal for, enters into, or
reasonably may be expected to enter into a covered transaction. This
term also includes any person who acts on behalf of or is authorized to
commit a participant in a covered transaction as an agent or
representative of another participant.
Person. Any individual, corporation, partnership, association, unit
of government or legal entity, however organized, except: foreign
governments or foreign governmental entities, public international
organizations, foreign government owned (in whole or in part) or
controlled entities, and entities consisting wholly or partially of
foreign governments or foreign governmental entities.
Preponderance of the evidence. Proof by information that, compared
with that opposing it, leads to the conclusion that the fact at issue is
more probably true than not.
Principal. Officer, director, owner, partner, key employee, or other
person within a participant with primary management or supervisory
responsibilities; or a person who has a critical influence on or
substantive control over a covered transaction, whether or not employed
by the participant. Persons who have a critical influence on or
substantive control over a covered transaction are:
(1) Principal investigators.
(2) [Reserved]
Proposal. A solicited or unsolicited bid, application, request,
invitation to consider or similar communication by or on behalf of a
person seeking to participate or to receive a benefit, directly or
indirectly, in or under a covered transaction.
[[Page 219]]
Respondent. A person against whom a debarment or suspension action
has been initiated.
State. Any of the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, any territory or possession
of the United States, or any agency of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the State
government if it has a written determination from a State government
that such State considers that instrumentality to be an agency of the
State government.
Suspending official. An official authorized to impose suspension.
The suspending official is either:
(1) The agency head, or
(2) An official designated by the agency head.
Suspension. An action taken by a suspending official in accordance
with these regulations that immediately excludes a person from
participating in covered transactions for a temporary period, pending
completion of an investigation and such legal, debarment, or Program
Fraud Civil Remedies Act proceedings as may ensue. A person so excluded
is ``suspended.''
Voluntary exclusion or voluntarily excluded. A status of
nonparticipation or limited participation in covered transactions
assumed by a person pursuant to the terms of a settlement.
[53 FR 19187, and 19204, May 26, 1988, Redesignated at 54 FR 4958, Jan.
31, 1989; 60 FR 33041, 33052, June 26, 1995]
Sec. 19.110 Coverage.
(a) These regulations apply to all persons who have participated,
are currently participating or may reasonably be expected to participate
in transactions under Federal nonprocurement programs. For purposes of
these regulations such transactions will be referred to as ``covered
transactions.''
(1) Covered transaction. For purposes of these regulations, a
covered transaction is a primary covered transaction or a lower tier
covered transaction. Covered transactions at any tier need not involve
the transfer of Federal funds.
(i) Primary covered transaction. Except as noted in paragraph (a)(2)
of this section, a primary covered transaction is any nonprocurement
transaction between an agency and a person, regardless of type,
including: grants, cooperative agreements, scholarships, fellowships,
contracts of assistance, loans, loan guarantees, subsidies, insurance,
payments for specified use, donation agreements and any other
nonprocurement transactions between a Federal agency and a person.
Primary covered transactions also include those transactions specially
designated by the U.S. Department of Housing and Urban Development in
such agency's regulations governing debarment and suspension.
(ii) Lower tier covered transaction. A lower tier covered
transaction is:
(A) Any transaction between a participant and a person other than a
procurement contract for goods or services, regardless of type, under a
primary covered transaction.
(B) Any procurement contract for goods or services between a
participant and a person, regardless of type, expected to equal or
exceed the Federal procurement small purchase threshold fixed at 10
U.S.C. 2304(g) and 41 U.S.C. 253(g) (currently $25,000) under a primary
covered transaction.
(C) Any procurement contract for goods or services between a
participant and a person under a covered transaction, regardless of
amount, under which that person will have a critical influence on or
substantive control over that covered transaction. Such persons are:
(1) Principal investigators.
(2) Providers of federally-required audit services.
(2) Exceptions. The following transactions are not covered:
(i) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
(ii) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities,
[[Page 220]]
entities consisting wholly or partially of foreign governments or
foreign governmental entities;
(iii) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted);
(iv) Federal employment;
(v) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(vi) Incidental benefits derived from ordinary governmental
operations; and
(vii) Other transactions where the application of these regulations
would be prohibited by law.
(b) Relationship to other sections. This section describes the types
of transactions to which a debarment or suspension under the regulations
will apply. Subpart B, ``Effect of Action,'' Sec. 19.200, ``Debarment or
suspension,'' sets forth the consequences of a debarment or suspension.
Those consequences would obtain only with respect to participants and
principals in the covered transactions and activities described in
Sec. 19.110(a). Sections 19.325, ``Scope of debarment,'' and 19.420,
``Scope of suspension,'' govern the extent to which a specific
participant or organizational elements of a participant would be
automatically included within a debarment or suspension action, and the
conditions under which affiliates or persons associated with a
participant may also be brought within the scope of the action.
(c) Relationship to Federal procurement activities. In accordance
with E.O. 12689 and section 2455 of Public Law 103-355, any debarment,
suspension, proposed debarment or other governmentwide exclusion
initiated under the Federal Acquisition Regulation (FAR) on or after
August 25, 1995 shall be recognized by and effective for Executive
Branch agencies and participants as an exclusion under this regulation.
Similarly, any debarment, suspension or other governmentwide exclusion
initiated under this regulation on or after August 25, 1995 shall be
recognized by and effective for those agencies as a debarment or
suspension under the FAR.
[53 FR 19187, and 19204, May 26, 1988, Redesignated at 54 FR 4958, Jan.
31, 1989; 60 FR 33041, 33052, June 26, 1995]
Sec. 19.115 Policy.
(a) In order to protect the public interest, it is the policy of the
Federal Government to conduct business only with responsible persons.
Debarment and suspension are discretionary actions that, taken in
accordance with Executive Order 12549 and these regulations, are
appropriate means to implement this policy.
(b) Debarment and suspension are serious actions which shall be used
only in the public interest and for the Federal Government's protection
and not for purposes of punishment. Agencies may impose debarment or
suspension for the causes and in accordance with the procedures set
forth in these regulations.
(c) When more than one agency has an interest in the proposed
debarment or suspension of a person, consideration shall be given to
designating one agency as the lead agency for making the decision.
Agencies are encouraged to establish methods and procedures for
coordinating their debarment or suspension actions.
Subpart B--Effect of Action
Sec. 19.200 Debarment or suspension.
(a) Primary covered transactions. Except to the extent prohibited by
law, persons who are debarred or suspended shall be excluded from
primary covered transactions as either participants or principals
throughout the Executive Branch of the Federal Government for the period
of their debarment, suspension, or the period they are proposed for
debarment under 48 CFR part 9, subpart 9.4. Accordingly, no agency shall
enter into primary covered transactions with such excluded persons
during such period, except as permitted pursuant to Sec. 19.215.
(b) Lower tier covered transactions. Except to the extent prohibited
by law, persons who have been proposed for debarment under 48 CFR part
9, subpart 9.4, debarred or suspended shall be excluded from
participating as either participants or principals in all lower tier
covered transactions (see Sec. 19.110(a)(1)(ii)) for the period of their
exclusion.
[[Page 221]]
(c) Exceptions. Debarment or suspension does not affect a person's
eligibility for--
(1) Statutory entitlements or mandatory awards (but not subtier
awards thereunder which are not themselves mandatory), including
deposited funds insured by the Federal Government;
(2) Direct awards to foreign governments or public international
organizations, or transactions with foreign governments or foreign
governmental entities, public international organizations, foreign
government owned (in whole or in part) or controlled entities, and
entities consisting wholly or partially of foreign governments or
foreign governmental entities;
(3) Benefits to an individual as a personal entitlement without
regard to the individual's present responsibility (but benefits received
in an individual's business capacity are not excepted);
(4) Federal employment;
(5) Transactions pursuant to national or agency-recognized
emergencies or disasters;
(6) Incidental benefits derived from ordinary governmental
operations; and
(7) Other transactions where the application of these regulations
would be prohibited by law.
[60 FR 33041, 33052, June 26, 1995]
Sec. 19.205 Ineligible persons.
Persons who are ineligible, as defined in Sec. 19.105(i), are
excluded in accordance with the applicable statutory, executive order,
or regulatory authority.
Sec. 19.210 Voluntary exclusion.
Persons who accept voluntary exclusions under Sec. 19.315 are
excluded in accordance with the terms of their settlements. Department
of the Treasury shall, and participants may, contact the original action
agency to ascertain the extent of the exclusion.
Sec. 19.215 Exception provision.
The Department of the Treasury may grant an exception permitting a
debarred, suspended, or voluntarily excluded person, or a person
proposed for debarment under 48 CFR part 9, subpart 9.4, to participate
in a particular covered transaction upon a written determination by the
agency head or an authorized designee stating the reason(s) for
deviating from the Presidential policy established by Executive Order
12549 and Sec. 19.200. However, in accordance with the President's
stated intention in the Executive Order, exceptions shall be granted
only infrequently. Exceptions shall be reported in accordance with
Sec. 19.505(a).
[60 FR 33041, 33052, June 26, 1995]
Sec. 19.220 Continuation of covered transactions.
(a) Notwithstanding the debarment, suspension, proposed debarment
under 48 CFR part 9, subpart 9.4, determination of ineligibility, or
voluntary exclusion of any person by an agency, agencies and
participants may continue covered transactions in existence at the time
the person was debarred, suspended, proposed for debarment under 48 CFR
part 9, subpart 9.4, declared ineligible, or voluntarily excluded. A
decision as to the type of termination action, if any, to be taken
should be made only after thorough review to ensure the propriety of the
proposed action.
(b) Agencies and participants shall not renew or extend covered
transactions (other than no-cost time extensions) with any person who is
debarred, suspended, proposed for debarment under 48 CFR part 9, subpart
9.4, ineligible or voluntary excluded, except as provided in
Sec. 19.215.
[60 FR 33041, 33052, June 26, 1995]
Sec. 19.225 Failure to adhere to restrictions.
(a) Except as permitted under Sec. 19.215 or Sec. 19.220, a
participant shall not knowingly do business under a covered transaction
with a person who is--
(1) Debarred or suspended;
(2) Proposed for debarment under 48 CFR part 9, subpart 9.4; or
(3) Ineligible for or voluntarily excluded from the covered
transaction.
(b) Violation of the restriction under paragraph (a) of this section
may result in disallowance of costs, annulment or termination of award,
issuance of a stop work order, debarment or suspension, or other
remedies as appropriate.
[[Page 222]]
(c) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, proposed for debarment under 48
CFR part 9, subpart 9.4, ineligible, or voluntarily excluded from the
covered transaction (See Appendix B of these regulations), unless it
knows that the certification is erroneous. An agency has the burden of
proof that a participant did knowingly do business with a person that
filed an erroneous certification.
[60 FR 33041, 33052, June 26, 1995]
Subpart C--Debarment
Sec. 19.300 General.
The debarring official may debar a person for any of the causes in
Sec. 19.305, using procedures established in Secs. 19.310 through
19.314. The existence of a cause for debarment, however, does not
necessarily require that the person be debarred; the seriousness of the
person's acts or omissions and any mitigating factors shall be
considered in making any debarment decision.
Sec. 19.305 Causes for debarment.
Debarment may be imposed in accordance with the provisions of
Secs. 19.300 through 19.314 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 or transaction;
(2) Violation of Federal or State antitrust statutes, including
those proscribing price fixing between competitors, allocation of
customers between competitors, and bid rigging;
(3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements,
receiving stolen property, making false claims, or obstruction of
justice; or
(4) Commission of any other offense indicating a lack of business
integrity or business honesty that seriously and directly affects the
present responsibility of a person.
(b) Violation of the terms of a public agreement or transaction so
serious as to affect the integrity of an agency program, such as:
(1) A willful failure to perform in accordance with the terms of one
or more public agreements or transactions;
(2) A history of failure to perform or of unsatisfactory performance
of one or more public agreements or transactions; or
(3) A willful violation of a statutory or regulatory provision or
requirement applicable 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, the effective date of these regulations, or a
procurement debarment by any Federal agency taken pursuant to 48 CFR
subpart 9.4;
(2) Knowingly doing business with a debarred, suspended, ineligible,
or voluntarily excluded person, in connection with a covered
transaction, except as permitted in Sec. 19.215 or Sec. 19.220;
(3) Failure to pay a single substantial debt, or a number of
outstanding debts (including disallowed costs and overpayments, but not
including sums owed the Federal Government under the Internal Revenue
Code) owed to any Federal agency or instrumentality, provided the debt
is uncontested by the debtor or, if contested, provided that the
debtor's legal and administrative remedies have been exhausted;
(4) Violation of a material provision of a voluntary exclusion
agreement entered into under Sec. 19.315 or of any settlement of a
debarment or suspension action; or
(5) Violation of any requirement of subpart F of this part, relating
to providing a drug-free workplace, as set forth in Sec. 19.615 of this
part.
(d) Any other cause of so serious or compelling a nature that it
affects the present responsibility of a person.
[53 FR 19204, May 26, 1988, as amended at 54 FR 4950 and 4958, Jan. 31,
1989]
Sec. 19.310 Procedures.
Department of the Treasury shall process debarment actions as
informally as practicable, consistent with the principles of fundamental
fairness,
[[Page 223]]
using the procedures in Secs. 19.311 through 19.314.
Sec. 19.311 Investigation and referral.
Information concerning the existence of a cause for debarment from
any source shall be promptly reported, investigated, and referred, when
appropriate, to the debarring official for consideration. After
consideration, the debarring official may issue a notice of proposed
debarment.
Sec. 19.312 Notice of proposed debarment.
A debarment proceeding shall be initiated by notice to the
respondent advising:
(a) That debarment is being considered;
(b) Of the reasons for the proposed debarment in terms sufficient to
put the respondent on notice of the conduct or transaction(s) upon which
it is based;
(c) Of the cause(s) relied upon under Sec. 19.305 for proposing
debarment;
(d) Of the provisions of Sec. 19.311 through Sec. 19.314, and any
other Department of the Treasury procedures, if applicable, governing
debarment decisionmaking; and
(e) Of the potential effect of a debarment.
Sec. 19.313 Opportunity to contest proposed debarment.
(a) Submission in opposition. Within 30 days after receipt of the
notice of proposed debarment, the respondent may submit, in person, in
writing, or through a representative, information and argument in
opposition to the proposed debarment.
(b) Additional proceedings as to disputed material facts. (1) In
actions not based upon a conviction or civil judgment, if the debarring
official finds that the respondent's submission in opposition raises a
genuine dispute over facts material to the proposed debarment,
respondent(s) shall be afforded an opportunity to appear with a
representative, submit documentary evidence, present witnesses, and
confront any witness the agency presents.
(2) A transcribed record of any additional proceedings shall be made
available at cost to the respondent, upon request, unless the respondent
and the agency, by mutual agreement, waive the requirement for a
transcript.
Sec. 19.314 Debarring official's decision.
(a) No additional proceedings necessary. In actions based upon a
conviction or civil judgment, or in which there is no genuine dispute
over material facts, the debarring official shall make a decision on the
basis of all the information in the administrative record, including any
submission made by the respondent. The decision shall be made within 45
days after receipt of any information and argument submitted by the
respondent, unless the debarring official extends this period for good
cause.
(b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The debarring
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
(2) The debarring official may refer disputed material facts to
another official for findings of fact. The debarring official may reject
any such findings, in whole or in part, only after specifically
determining them to be arbitrary and capricious or clearly erroneous.
(3) The debarring official's decision shall be made after the
conclusion of the proceedings with respect to disputed facts.
(c) (1) Standard of proof. In any debarment action, the cause for
debarment must be established by a preponderance of the evidence. Where
the proposed debarment is based upon a conviction or civil judgment, the
standard shall be deemed to have been met.
(2) Burden of proof. The burden of proof is on the agency proposing
debarment.
(d) Notice of debarring official's decision. (1) If the debarring
official decides to impose debarment, the respondent shall be given
prompt notice:
(i) Referring to the notice of proposed debarment;
(ii) Specifying the reasons for debarment;
[[Page 224]]
(iii) Stating the period of debarment, including effective dates;
and
(iv) Advising that the debarment is effective for covered
transactions throughout the executive branch of the Federal Government
unless an agency head or an authorized designee makes the determination
referred to in Sec. 601.915.
(2) If the debarring official decides not to impose debarment, the
respondent shall be given prompt notice of that decision. A decision not
to impose debarment shall be without prejudice to a subsequent
imposition of debarment by any other agency.
Sec. 19.315 Settlement and voluntary exclusion.
(a) When in the best interest of the Government, Department of the
Treasury may, at any time, settle a debarment or suspension action.
(b) If a participant and the agency agree to a voluntary exclusion
of the participant, such voluntary exclusion shall be entered on the
Nonprocurement List (see subpart E).
Sec. 19.320 Period of debarment.
(a) Debarment shall be for a period commensurate with the
seriousness of the cause(s). If a suspension precedes a debarment, the
suspension period shall be considered in determining the debarment
period.
(1) Debarment for causes other than those related to a violation of
the requirements of subpart F of this part generally should not exceed
three years. Where circumstances warrant, a longer period of debarment
may be imposed.
(2) In the case of a debarment for a violation of the requirements
of subpart F of this part (see 19.305(c)(5)), the period of debarment
shall not exceed five years.
(b) The debarring official may extend an existing debarment for an
additional period, if that official determines that an extension is
necessary to protect the public interest. However, a debarment may not
be extended solely on the basis of the facts and circumstances upon
which the initial debarment action was based. If debarment for an
additional period is determined to be necessary, the procedures of
Secs. 19.311 through 19.314 shall be followed to extend the debarment.
(c) The respondent may request the debarring official to reverse the
debarment decision or to reduce the period or scope of debarment. Such a
request shall be in writing and supported by documentation. The
debarring official may grant such a request for reasons including, but
not limited to:
(1) Newly discovered material evidence;
(2) Reversal of the conviction or civil judgment upon which the
debarment was based;
(3) Bona fide change in ownership or management;
(4) Elimination of other causes for which the debarment was imposed;
or
(5) Other reasons the debarring official deems appropriate.
[53 FR 19204, May 26, 1988, as amended at 54 FR 4950 and 4958, Jan. 31,
1989]
Sec. 19.325 Scope of debarment.
(a) Scope in general. (1) Debarment of a person under these
regulations constitutes debarment of all its divisions and other
organizational elements from all covered transactions, unless the
debarment decision is limited by its terms to one or more specifically
identified individuals, divisions or other organizational elements or to
specific types of transactions.
(2) The debarment action may include any affiliate of the
participant that is specifically named and given notice of the proposed
debarment and an opportunity to respond (see Secs. 19.311 through
19.314).
(b) Imputing conduct. For purposes of determining the scope of
debarment, conduct may be imputed as follows:
(1) Conduct imputed to participant. The fraudulent, criminal or
other seriously improper conduct of any officer, director, shareholder,
partner, employee, or other individual associated with a participant may
be imputed to the participant when the conduct occurred in connection
with the individual's performance of duties for or on behalf of the
participant, or with the participant's knowledge, approval, or
acquiescence. The participant's acceptance of the benefits derived from
the conduct shall be evidence of such knowledge, approval, or
acquiescence.
[[Page 225]]
(2) Conduct imputed to individuals associated with participant. The
fraudulent, criminal, or other seriously improper conduct of a
participant may be imputed to any officer, director, shareholder,
partner, employee, or other individual associated with the participant
who participated in, knew of, or had reason to know of the participant's
conduct.
(3) Conduct of one participant imputed to other participants in a
joint venture. The fraudulent, criminal, or other seriously improper
conduct of one participant in a joint venture, grant pursuant to a joint
application, or similar arrangement may be imputed to other participants
if the conduct occurred for or on behalf of the joint venture, grant
pursuant to a joint application, or similar arrangement may be imputed
to other participants if the conduct occurred for or on behalf of the
joint venture, grant pursuant to a joint application, or similar
arrangement or with the knowledge, approval, or acquiescence of these
participants. Acceptance of the benefits derived from the conduct shall
be evidence of such knowledge, approval, or acquiescence.
Subpart D--Suspension
Sec. 19.400 General.
(a) The suspending official may suspend a person for any of the
causes in Sec. 19.405 using procedures established in Secs. 19.410
through 19.413.
(b) Suspension is a serious action to be imposed only when:
(1) There exists adequate evidence of one or more of the causes set
out in Sec. 19.405, and
(2) Immediate action is necessary to protect the public interest.
(c) In assessing the adequacy of the evidence, the agency should
consider how much information is available, how credible it is given the
circumstances, whether or not important allegations are corroborated,
and what inferences can reasonably be drawn as a result. This assessment
should include an examination of basic documents such as grants,
cooperative agreements, loan authorizations, and contracts.
Sec. 19.405 Causes for suspension.
(a) Suspension may be imposed in accordance with the provisions of
Secs. 19.400 through 19.413 upon adequate evidence:
(1) To suspect the commission of an offense listed in
Sec. 19.405(a); or
(2) That a cause for debarment under Sec. 19.305 may exist.
(b) Indictment shall constitute adequate evidence for purposes of
suspension actions.
Sec. 19.410 Procedures.
(a) Investigation and referral. Information concerning the existence
of a cause for suspension from any source shall be promptly reported,
investigated, and referred, when appropriate, to the suspending official
for consideration. After consideration, the suspending official may
issue a notice of suspension.
(b) Decisionmaking process. Department of the Treasury shall process
suspension actions as informally as practicable, consistent with
principles of fundamental fairness, using the procedures in Sec. 19.411
through Sec. 19.413.
Sec. 19.411 Notice of suspension.
When a respondent is suspended, notice shall immediately be given:
(a) That suspension has been imposed;
(b) That the suspension is based on an indictment, conviction, or
other adequate evidence that the respondent has committed irregularities
seriously reflecting on the propriety of further Federal Government
dealings with the respondent;
(c) Describing any such irregularities in terms sufficient to put
the respondent on notice without disclosing the Federal Government's
evidence;
(d) Of the cause(s) relied upon under Sec. 19.405 for imposing
suspension;
(e) That the suspension is for a temporary period pending the
completion of an investigation or ensuing legal, debarment, or Program
Fraud Civil Remedies Act proceedings;
(f) Of the provisions of Sec. 19.411 through Sec. 19.413 and any
other Department of the Treasury procedures, if applicable, governing
suspension decisionmaking; and
(g) Of the effect of the suspension.
[[Page 226]]
Sec. 19.412 Opportunity to contest suspension.
(a) Submission in opposition. Within 30 days after receipt of the
notice of suspension, the respondent may submit, in person, in writing,
or through a representative, information and argument in opposition to
the suspension.
(b) Additional proceedings as to disputed material facts. (1) If the
suspending official finds that the respondent's submission in opposition
raises a genuine dispute over facts material to the suspension,
respondent(s) shall be afforded an opportunity to appear with a
representative, submit documentary evidence, present witnesses, and
confront any witness the agency presents, unless:
(i) The action is based on an indictment, conviction or civil
judgment, or
(ii) A determination is made, on the basis of Department of Justice
advice, that the substantial interests of the Federal Government in
pending or contemplated legal proceedings based on the same facts as the
suspension would be prejudiced.
(2) A transcribed record of any additional proceedings shall be
prepared and made available at cost to the respondent, upon request,
unless the respondent and the agency, by mutual agreement, waive the
requirement for a transcript.
Sec. 19.413 Suspending official's decision.
The suspending official may modify or terminate the suspension (for
example, see Sec. 19.320(c) for reasons for reducing the period or scope
of debarment) or may leave it in force. However, a decision to modify or
terminate the suspension shall be without prejudice to the subsequent
imposition of suspension by any other agency or debarment by any agency.
The decision shall be rendered in accordance with the following
provisions:
(a) No additional proceedings necessary. In actions: based on an
indictment, conviction, or civil judgment; in which there is no genuine
dispute over material facts; or in which additional proceedings to
determine disputed material facts have been denied on the basis of
Department of Justice advice, the suspending official shall make a
decision on the basis of all the information in the administrative
record, including any submission made by the respondent. The decision
shall be made within 45 days after receipt of any information and
argument submitted by the respondent, unless the suspending official
extends this period for good cause.
(b) Additional proceedings necessary. (1) In actions in which
additional proceedings are necessary to determine disputed material
facts, written findings of fact shall be prepared. The suspending
official shall base the decision on the facts as found, together with
any information and argument submitted by the respondent and any other
information in the administrative record.
(2) The suspending official may refer matters involving disputed
material facts to another official for findings of fact. The suspending
official may reject any such findings, in whole or in part, only after
specifically determining them to be arbitrary or capricious or clearly
erroneous.
(c) Notice of suspending official's decision. Prompt written notice
of the suspending official's decision shall be sent to the respondent.
Sec. 19.415 Period of suspension.
(a) Suspension shall be for a temporary period pending the
completion of an investigation or ensuing legal, debarment, or Program
Fraud Civil Remedies Act proceedings, unless terminated sooner by the
suspending official or as provided in paragraph (b) of this section.
(b) If legal or administrative proceedings are not initiated within
12 months after the date of the suspension notice, the suspension shall
be terminated unless an Assistant Attorney General or United States
Attorney requests its extension in writing, in which case it may be
extended for an additional six months. In no event may a suspension
extend beyond 18 months, unless such proceedings have been initiated
within that period.
(c) The suspending official shall notify the Department of Justice
of an impending termination of a suspension, at least 30 days before the
12-month period expires, to give that Department an opportunity to
request an extension.
[[Page 227]]
Sec. 19.420 Scope of suspension.
The scope of a suspension is the same as the scope of a debarment
(see Sec. 19.325), except that the procedures of Secs. 19.410 through
19.413 shall be used in imposing a suspension.
Subpart E--Responsibilities of GSA, Agency and Participants
Sec. 19.500 GSA responsibilities.
(a) In accordance with the OMB guidelines, GSA shall compile,
maintain, and distribute a list of all persons who have been debarred,
suspended, or voluntarily excluded by agencies under Executive Order
12549 and these regulations, and those who have been determined to be
ineligible.
(b) At a minimum, this list shall indicate:
(1) The names and addresses of all debarred, suspended, ineligible,
and voluntarily excluded persons, in alphabetical order, with cross-
references when more than one 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 each listing; and
(6) The agency and name and telephone number of the agency point of
contact for the action.
Sec. 19.505 Department of the Treasury responsibilities.
(a) The agency shall provide GSA with current information concerning
debarments, suspension, determinations of ineligibility, and voluntary
exclusions it has taken. Until February 18, 1989, the agency shall also
provide GSA and OMB with information concerning all transactions in
which Department of the Treasury has granted exceptions under
Sec. 19.215 permitting participation by debarred, suspended, or
voluntarily excluded persons.
(b) Unless an alternative schedule is agreed to by GSA, the agency
shall advise GSA of the information set forth in Sec. 19.200(b) and of
the exceptions granted under Sec. 19.215 within five working days after
taking such actions.
(c) The agency shall direct inquiries concerning listed persons to
the agency that took the action.
(d) Agency officials shall check the Nonprocurement List before
entering covered transactions to determine whether a participant in a
primary transaction is debarred, suspended, ineligible, or voluntarily
excluded (Tel. ).
(e) Agency officials shall check the Nonprocurement List before
approving principals or lower tier participants where agency approval of
the principal or lower tier participant is required under the terms of
the transaction, to determine whether such principals or participants
are debarred, suspended, ineligible, or voluntarily excluded.
Sec. 19.510 Participants' responsibilities.
(a) Certification by participants in primary covered transactions.
Each participant shall submit the certification in Appendix A to this
part for it and its principals at the time the participant submits its
proposal in connection with a primary covered transaction, except that
States need only complete such certification as to their principals.
Participants may decide the method and frequency by which they determine
the eligibility of their principals. In addition, each participant may,
but is not required to, check the Nonprocurement List for its principals
(Tel. ). Adverse information on the certification will not
necessarily result in denial of participation. However, the
certification, and any additional information pertaining to the
certification submitted by the participant, shall be considered in the
administration of covered transactions.
(b) Certification by participants in lower tier covered
transactions. (1) Each participant shall require participants in lower
tier covered transactions to include the certification in Appendix B to
this part for it and its principals in any proposal submitted in
connection with such lower tier covered transactions.
(2) A participant may rely upon the certification of a prospective
participant in a lower tier covered transaction that it and its
principals are not debarred, suspended, ineligible, or voluntarily
excluded from the covered
[[Page 228]]
transaction by any Federal agency, unless it knows that the
certification is erroneous. Participants may decide the method and
frequency by which they determine the eligiblity of their principals. In
addition, a participant may, but is not required to, check the
Nonprocurement List for its principals and for participants (Tel.
).
(c) Changed circumstances regarding certification. A participant
shall provide immediate written notice to Department of the Treasury if
at any time the participant learns that its certification was erroneous
when submitted or has become erroneous by reason of changed
circumstances. Participants in lower tier covered transactions shall
provide the same updated notice to the participant to which it submitted
its proposals.
Subpart F--Drug-Free Workplace Requirements (Grants)
Source: 55 FR 21688, 21697, May 25, 1990, unless otherwise noted.
Sec. 19.600 Purpose.
(a) The purpose of this subpart is to carry out the Drug-Free
Workplace Act of 1988 by requiring that--
(1) A grantee, other than an individual, shall certify to the agency
that it will provide a drug-free workplace;
(2) A grantee who is an individual shall certify to the agency that,
as a condition of the grant, he or she will not engage in the unlawful
manufacture, distribution, dispensing, possession or use of a controlled
substance in conducting any activity with the grant.
(b) Requirements implementing the Drug-Free Workplace Act of 1988
for contractors with the agency are found at 48 CFR subparts 9.4, 23.5,
and 52.2.
Sec. 19.605 Definitions.
(a) Except as amended in this section, the definitions of
Sec. 19.105 apply to this subpart.
(b) For purposes of this subpart--
(1) Controlled substance means a controlled substance in schedules I
through V of the Controlled Substances Act (21 U.S.C. 812), and as
further defined by regulation at 21 CFR 1308.11 through 1308.15;
(2) Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
(3) Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance;
(4) Drug-free workplace means a site for the performance of work
done in connection with a specific grant at which employees of the
grantee are prohibited from engaging in the unlawful manufacture,
distribution, dispensing, possession, or use of a controlled substance;
(5) Employee means the employee of a grantee directly engaged in the
performance of work under the grant, including:
(i) All direct charge employees;
(ii) All indirect charge employees, unless their impact or
involvement is insignificant to the performance of the grant; and,
(iii) Temporary personnel and consultants who are directly engaged
in the performance of work under the grant and who are on the grantee's
payroll.
This definition does not include workers not on the payroll of the
grantee (e.g., volunteers, even if used to meet a matching requirement;
consultants or independent contractors not on the payroll; or employees
of subrecipients or subcontractors in covered workplaces);
(6) Federal agency or agency means any United States executive
department, military department, government corporation, government
controlled corporation, any other establishment in the executive branch
(including the Executive Office of the President), or any independent
regulatory agency;
(7) Grant means an award of financial assistance, including a
cooperative agreement, in the form of money, or property in lieu of
money, by a Federal agency directly to a grantee. The term grant
includes block grant and entitlement grant programs, whether or not
exempted from coverage under the
[[Page 229]]
grants management government-wide common rule on uniform administrative
requirements for grants and cooperative agreements. The term does not
include technical assistance that provides services instead of money, or
other assistance in the form of loans, loan guarantees, interest
subsidies, insurance, or direct appropriations; or any veterans'
benefits to individuals, i.e., any benefit to veterans, their families,
or survivors by virtue of the service of a veteran in the Armed Forces
of the United States;
(8) Grantee means a person who applies for or receives a grant
directly from a Federal agency (except another Federal agency);
(9) Individual means a natural person;
(10) State means any of the States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency of a State, exclusive of
institutions of higher education, hospitals, and units of local
government. A State instrumentality will be considered part of the State
government if it has a written determination from a State government
that such State considers the instrumentality to be an agency of the
State government.
Sec. 19.610 Coverage.
(a) This subpart applies to any grantee of the agency.
(b) This subpart applies to any grant, except where application of
this subpart would be inconsistent with the international obligations of
the United States or the laws or regulations of a foreign government. A
determination of such inconsistency may be made only by the agency head
or his/her designee.
(c) The provisions of subparts A, B, C, D and E of this part apply
to matters covered by this subpart, except where specifically modified
by this subpart. In the event of any conflict between provisions of this
subpart and other provisions of this part, the provisions of this
subpart are deemed to control with respect to the implementation of
drug-free workplace requirements concerning grants.
Sec. 19.615 Grounds for suspension of payments, suspension or termination of grants, or suspension or debarment.
A grantee shall be deemed in violation of the requirements of this
subpart if the agency head or his or her official designee determines,
in writing, that--
(a) The grantee has made a false certification under Sec. 19.630;
(b) With respect to a grantee other than an individual--
(1) The grantee has violated the certification by failing to carry
out the requirements of paragraphs (A)(a) through (g) and/or (B) of the
certification (Alternate I to Appendix C) or
(2) Such a number of employees of the grantee have been convicted of
violations of criminal drug statutes for violations occurring in the
workplace as to indicate that the grantee has failed to make a good
faith effort to provide a drug-free workplace.
(c) With respect to a grantee who is an individual--
(1) The grantee has violated the certification by failing to carry
out its requirements (Alternate II to Appendix C); or
(2) The grantee is convicted of a criminal drug offense resulting
from a violation occurring during the conduct of any grant activity.
Sec. 19.620 Effect of violation.
(a) In the event of a violation of this subpart as provided in
Sec. 19.615, and in accordance with applicable law, the grantee shall be
subject to one or more of the following actions:
(1) Suspension of payments under the grant;
(2) Suspension or termination of the grant; and
(3) Suspension or debarment of the grantee under the provisions of
this part.
(b) Upon issuance of any final decision under this part requiring
debarment of a grantee, the debarred grantee shall be ineligible for
award of any grant from any Federal agency for a period specified in the
decision, not to exceed five years (see Sec. 19.320(a)(2) of this part).
[[Page 230]]
Sec. 19.625 Exception provision.
The agency head may waive with respect to a particular grant, in
writing, a suspension of payments under a grant, suspension or
termination of a grant, or suspension or debarment of a grantee if the
agency head determines that such a waiver would be in the public
interest. This exception authority cannot be delegated to any other
official.
Sec. 19.630 Certification requirements and procedures.
(a)(1) As a prior condition of being awarded a grant, each grantee
shall make the appropriate certification to the Federal agency providing
the grant, as provided in Appendix C to this part.
(2) Grantees are not required to make a certification in order to
continue receiving funds under a grant awarded before March 18, 1989, or
under a no-cost time extension of such a grant. However, the grantee
shall make a one-time drug-free workplace certification for a non-
automatic continuation of such a grant made on or after March 18, 1989.
(b) Except as provided in this section, all grantees shall make the
required certification for each grant. For mandatory formula grants and
entitlements that have no application process, grantees shall submit a
one-time certification in order to continue receiving awards.
(c) A grantee that is a State may elect to make one certification in
each Federal fiscal year. States that previously submitted an annual
certification are not required to make a certification for Fiscal Year
1990 until June 30, 1990. Except as provided in paragraph (d) of this
section, this certification shall cover all grants to all State agencies
from any Federal agency. The State shall retain the original of this
statewide certification in its Governor's office and, prior to grant
award, shall ensure that a copy is submitted individually with respect
to each grant, unless the Federal agency has designated a central
location for submission.
(d)(1) The Governor of a State may exclude certain State agencies
from the statewide certification and authorize these agencies to submit
their own certifications to Federal agencies. The statewide
certification shall name any State agencies so excluded.
(2) A State agency to which the statewide certification does not
apply, or a State agency in a State that does not have a statewide
certification, may elect to make one certification in each Federal
fiscal year. State agencies that previously submitted a State agency
certification are not required to make a certification for Fiscal Year
1990 until June 30, 1990. The State agency shall retain the original of
this State agency-wide certification in its central office and, prior to
grant award, shall ensure that a copy is submitted individually with
respect to each grant, unless the Federal agency designates a central
location for submission.
(3) When the work of a grant is done by more than one State agency,
the certification of the State agency directly receiving the grant shall
be deemed to certify compliance for all workplaces, including those
located in other State agencies.
(e)(1) For a grant of less than 30 days performance duration,
grantees shall have this policy statement and program in place as soon
as possible, but in any case by a date prior to the date on which
performance is expected to be completed.
(2) For a grant of 30 days or more performance duration, grantees
shall have this policy statement and program in place within 30 days
after award.
(3) Where extraordinary circumstances warrant for a specific grant,
the grant officer may determine a different date on which the policy
statement and program shall be in place.
Sec. 19.635 Reporting of and employee sanctions for convictions of criminal drug offenses.
(a) When a grantee other than an individual is notified that an
employee has been convicted for a violation of a criminal drug statute
occurring in the workplace, it shall take the following actions:
(1) Within 10 calendar days of receiving notice of the conviction,
the grantee shall provide written notice, including the convicted
employee's position
[[Page 231]]
title, to every grant officer, or other designee on whose grant activity
the convicted employee was working, unless a Federal agency has
designated a central point for the receipt of such notifications.
Notification shall include the identification number(s) for each of the
Federal agency's affected grants.
(2) Within 30 calendar days of receiving notice of the conviction,
the grantee shall do the following with respect to the employee who was
convicted.
(i) Take appropriate personnel action against the employee, up to
and including termination, consistent with requirements of the
Rehabilitation Act of 1973, as amended; or
(ii) Require the employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency.
(b) A grantee who is an individual who is convicted for a violation
of a criminal drug statute occurring during the conduct of any grant
activity shall report the conviction, in writing, within 10 calendar
days, to his or her Federal agency grant officer, or other designee,
unless the Federal agency has designated a central point for the receipt
of such notices. Notification shall include the identification number(s)
for each of the Federal agency's affected grants.
(Approved by the Office of Management and Budget under control number
0991-0002)
Appendix A to Part 19--Certification Regarding Debarment, Suspension,
and Other Responsibility Matters--Primary Covered Transactions
Instructions for Certification
1. By signing and submitting this proposal, the prospective primary
participant is providing the certification set out below.
2. The inability of a person to provide the certification required
below will not necessarily result in denial of participation in this
covered transaction. The prospective participant shall submit an
explanation of why it cannot provide the certification set out below.
The certification or explanation will be considered in connection with
the department or agency's determination whether to enter into this
transaction. However, failure of the prospective primary participant to
furnish a certification or an explanation shall disqualify such person
from participation in this transaction.
3. The certification in this clause is a material representation of
fact upon which reliance was placed when the department or agency
determined to enter into this transaction. If it is later determined
that the prospective primary participant knowingly rendered an erroneous
certification, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction for
cause or default.
4. The prospective primary participant shall provide immediate
written notice to the department or agency to which this proposal is
submitted if at any time the prospective primary participant learns that
its certification was erroneous when submitted or has become erroneous
by reason of changed circumstances.
5. The terms covered transaction, debarred, suspended, ineligible,
lower tier covered transaction, participant, person, primary covered
transaction, principal, proposal, and voluntarily excluded, as used in
this clause, have the meanings set out in the Definitions and Coverage
sections of the rules implementing Executive Order 12549. You may
contact the department or agency to which this proposal is being
submitted for assistance in obtaining a copy of those regulations.
6. The prospective primary participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction
with a person who is proposed for debarment under 48 CFR part 9, subpart
9.4, debarred, suspended, declared ineligible, or voluntarily excluded
from participation in this covered transaction, unless authorized by the
department or agency entering into this transaction.
7. The prospective primary participant further agrees by submitting
this proposal that it will include the clause titled ``Certification
Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-
Lower Tier Covered Transaction,'' provided by the department or agency
entering into this covered transaction, without modification, in all
lower tier covered transactions and in all solicitations for lower tier
covered transactions.
8. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not proposed for debarment under 48 CFR part 9,
subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded
from the covered transaction, unless it knows that the certification is
erroneous. A participant may decide the method and frequency by which it
determines the eligibility of its principals. Each participant may, but
is not required to,
[[Page 232]]
check the List of Parties Excluded from Federal Procurement and
Nonprocurement Programs.
9. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this clause. The knowledge and information
of a participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business
dealings.
10. Except for transactions authorized under paragraph 6 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is proposed for
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred,
ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency may terminate this transaction for
cause or default.
Certification Regarding Debarment, Suspension, and Other Responsibility
Matters--Primary Covered Transactions
(1) The prospective primary participant certifies to the best of its
knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment,
declared ineligible, or voluntarily excluded by any Federal department
or agency;
(b) Have not within a three-year period preceding this proposal been
convicted of or had a civil judgment rendered against them for
commission of fraud or a criminal offense in connection with obtaining,
attempting to obtain, or performing a public (Federal, State or local)
transaction or contract under a public transaction; violation of Federal
or State antitrust statutes or commission of embezzlement, theft,
forgery, bribery, falsification or destruction of records, making false
statements, or receiving stolen property;
(c) Are not presently indicted for or otherwise criminally or
civilly charged by a governmental entity (Federal, State or local) with
commission of any of the offenses enumerated in paragraph (1)(b) of this
certification; and
(d) Have not within a three-year period preceding this application/
proposal had one or more public transactions (Federal, State or local)
terminated for cause or default.
(2) Where the prospective primary participant is unable to certify
to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
[60 FR 33042, 33052, June 26, 1995]
Appendix B to Part 19--Certification Regarding Debarment, Suspension,
Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions
Instructions for Certification
1. By signing and submitting this proposal, the prospective lower
tier participant is providing the certification set out below.
2. The certification in this clause is a material representation of
fact upon which reliance was placed when this transaction was entered
into. If it is later determined that the prospective lower tier
participant knowingly rendered an erroneous certification, in addition
to other remedies available to the Federal Government the department or
agency with which this transaction originated may pursue available
remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate
written notice to the person to which this proposal is submitted if at
any time the prospective lower tier participant learns that its
certification was erroneous when submitted or had become erroneous by
reason of changed circumstances.
4. The terms covered transaction, debarred, suspended, ineligible,
lower tier covered transaction, participant, person, primary covered
transaction, principal, proposal, and voluntarily excluded, as used in
this clause, have the meaning set out in the Definitions and Coverage
sections of rules implementing Executive Order 12549. You may contact
the person to which this proposal is submitted for assistance in
obtaining a copy of those regulations.
5. The prospective lower tier participant agrees by submitting this
proposal that, should the proposed covered transaction be entered into,
it shall not knowingly enter into any lower tier covered transaction
with a person who is proposed for debarment under 48 CFR part 9, subpart
9.4, debarred, suspended, declared ineligible, or voluntarily excluded
from participation in this covered transaction, unless authorized by the
department or agency with which this transaction originated.
6. The prospective lower tier participant further agrees by
submitting this proposal that it will include this clause titled
``Certification Regarding Debarment, Suspension, Ineligibility and
Voluntary Exclusion-Lower Tier Covered Transaction,'' without
modification, in all lower tier covered transactions and in all
solicitations for lower tier covered transactions.
7. A participant in a covered transaction may rely upon a
certification of a prospective participant in a lower tier covered
transaction that it is not proposed for debarment under 48 CFR part 9,
subpart 9.4,
[[Page 233]]
debarred, suspended, ineligible, or voluntarily excluded from covered
transactions, unless it knows that the certification is erroneous. A
participant may decide the method and frequency by which it determines
the eligibility of its principals. Each participant may, but is not
required to, check the List of Parties Excluded from Federal Procurement
and Nonprocurement Programs.
8. Nothing contained in the foregoing shall be construed to require
establishment of a system of records in order to render in good faith
the certification required by this clause. The knowledge and information
of a participant is not required to exceed that which is normally
possessed by a prudent person in the ordinary course of business
dealings.
9. Except for transactions authorized under paragraph 5 of these
instructions, if a participant in a covered transaction knowingly enters
into a lower tier covered transaction with a person who is proposed for
debarment under 48 CFR part 9, subpart 9.4, suspended, debarred,
ineligible, or voluntarily excluded from participation in this
transaction, in addition to other remedies available to the Federal
Government, the department or agency with which this transaction
originated may pursue available remedies, including suspension and/or
debarment.
Certification Regarding Debarment, Suspension, Ineligibility an
Voluntary Exclusion--Lower Tier Covered Transactions
(1) The prospective lower tier participant certifies, by submission
of this proposal, that neither it nor its principals is presently
debarred, suspended, proposed for debarment, declared ineligible, or
voluntarily excluded from participation in this transaction by any
Federal department or agency.
(2) Where the prospective lower tier participant is unable to
certify to any of the statements in this certification, such prospective
participant shall attach an explanation to this proposal.
[60 FR 33042, 33052, June 26, 1995]
Appendix C to Part 19--Certification Regarding Drug-Free Workplace
Requirements
Instructions for Certification
1. By signing and/or submitting this application or grant agreement,
the grantee is providing the certification set out below.
2. The certification set out below is a material representation of
fact upon which reliance is placed when the agency awards the grant. If
it is later determined that the grantee knowingly rendered a false
certification, or otherwise violates the requirements of the Drug-Free
Workplace Act, the agency, in addition to any other remedies available
to the Federal Government, may take action authorized under the Drug-
Free Workplace Act.
3. For grantees other than individuals, Alternate I applies.
4. For grantees who are individuals, Alternate II applies.
5. Workplaces under grants, for grantees other than individuals,
need not be identified on the certification. If known, they may be
identified in the grant application. If the grantee does not identify
the workplaces at the time of application, or upon award, if there is no
application, the grantee must keep the identity of the workplace(s) on
file in its office and make the information available for Federal
inspection. Failure to identify all known workplaces constitutes a
violation of the grantee's drug-free workplace requirements.
6. Workplace identifications must include the actual address of
buildings (or parts of buildings) or other sites where work under the
grant takes place. Categorical descriptions may be used (e.g., all
vehicles of a mass transit authority or State highway department while
in operation, State employees in each local unemployment office,
performers in concert halls or radio studios).
7. If the workplace identified to the agency changes during the
performance of the grant, the grantee shall inform the agency of the
change(s), if it previously identified the workplaces in question (see
paragraph five).
8. Definitions of terms in the Nonprocurement Suspension and
Debarment common rule and Drug-Free Workplace common rule apply to this
certification. Grantees' attention is called, in particular, to the
following definitions from these rules:
Controlled substance means a controlled substance in Schedules I
through V of the Controlled Substances Act (21 U.S.C. 812) and as
further defined by regulation (21 CFR 1308.11 through 1308.15);
Conviction means a finding of guilt (including a plea of nolo
contendere) or imposition of sentence, or both, by any judicial body
charged with the responsibility to determine violations of the Federal
or State criminal drug statutes;
Criminal drug statute means a Federal or non-Federal criminal
statute involving the manufacture, distribution, dispensing, use, or
possession of any controlled substance;
Employee means the employee of a grantee directly engaged in the
performance of work under a grant, including: (i) All direct charge
employees; (ii) All indirect charge employees unless their impact or
involvement is insignificant to the performance of the grant; and, (iii)
Temporary personnel and consultants who are directly engaged in the
performance of work under the grant and who are on the grantee's
payroll. This definition does not include workers not on the payroll of
the grantee (e.g., volunteers, even if used
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to meet a matching requirement; consultants or independent contractors
not on the grantee's payroll; or employees of subrecipients or
subcontractors in covered workplaces).
Certification Regarding Drug-Free Workplace Requirements
Alternate I. (Grantees Other Than Individuals)
A. The grantee certifies that it will or will continue to provide a
drug-free workplace by:
(a) Publishing a statement notifying employees that the unlawful
manufacture, distribution, dispensing, possession, or use of a
controlled substance is prohibited in the grantee's workplace and
specifying the actions that will be taken against employees for
violation of such prohibition;
(b) Establishing an ongoing drug-free awareness program to inform
employees about--
(1) The dangers of drug abuse in the workplace;
(2) The grantee's policy of maintaining a drug-free workplace;
(3) Any available drug counseling, rehabilitation, and employee
assistance programs; and
(4) The penalties that may be imposed upon employees for drug abuse
violations occurring in the workplace;
(c) Making it a requirement that each employee to be engaged in the
performance of the grant be given a copy of the statement required by
paragraph (a);
(d) Notifying the employee in the statement required by paragraph
(a) that, as a condition of employment under the grant, the employee
will--
(1) Abide by the terms of the statement; and
(2) Notify the employer in writing of his or her conviction for a
violation of a criminal drug statute occurring in the workplace no later
than five calendar days after such conviction;
(e) Notifying the agency in writing, within ten calendar days after
receiving notice under paragraph (d)(2) from an employee or otherwise
receiving actual notice of such conviction. Employers of convicted
employees must provide notice, including position title, to every grant
officer or other designee on whose grant activity the convicted employee
was working, unless the Federal agency has designated a central point
for the receipt of such notices. Notice shall include the identification
number(s) of each affected grant;
(f) Taking one of the following actions, within 30 calendar days of
receiving notice under paragraph (d)(2), with respect to any employee
who is so convicted--
(1) Taking appropriate personnel action against such an employee, up
to and including termination, consistent with the requirements of the
Rehabilitation Act of 1973, as amended; or
(2) Requiring such employee to participate satisfactorily in a drug
abuse assistance or rehabilitation program approved for such purposes by
a Federal, State, or local health, law enforcement, or other appropriate
agency;
(g) Making a good faith effort to continue to maintain a drug-free
workplace through implementation of paragraphs (a), (b), (c), (d), (e)
and (f).
B. The grantee may insert in the space provided below the site(s)
for the performance of work done in connection with the specific grant:
Place of Performance (Street address, city, county, state, zip code)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Check [squ] if there are workplaces on file that are not identified
here.
Alternate II. (Grantees Who Are Individuals)
(a) The grantee certifies that, as a condition of the grant, he or
she will not engage in the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance in conducting
any activity with the grant;
(b) If convicted of a criminal drug offense resulting from a
violation occurring during the conduct of any grant activity, he or she
will report the conviction, in writing, within 10 calendar days of the
conviction, to every grant officer or other designee, unless the Federal
agency designates a central point for the receipt of such notices. When
notice is made to such a central point, it shall include the
identification number(s) of each affected grant.
[55 FR 21690, 21697, May 25, 1990]