[Title 2 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2012 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
Title 2
Grants and Agreements
Revised as of January 1, 2012
Containing a codification of documents of general
applicability and future effect
As of January 1, 2012
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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Table of Contents
Page
Explanation................................................. vi
Title 2:
SUBTITLE A--Office of Management and Budget Guidance
for Grants and Agreements 1
Chapter I--Office of Management and Budget
Governmentwide Guidance for Grants and Agreements 9
Chapter II--Office of Management and Budget
Circulars and Guidance 75
SUBTITLE B--Federal Agency Regulations for Grants and
Agreements
Chapter III--Department of Health and Human Services 213
Chapter IV--Department of Agriculture 221
Chapter VI--Department of State 233
Chapter VII--Agency for International Development 237
Chapter VIII--Department of Veterans Affairs 245
Chapter IX--Department of Energy 253
Chapter XI--Department of Defense 261
Chapter XII--Department of Transportation 267
Chapter XIII--Department of Commerce 271
Chapter XIV--Department of the Interior 277
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Chapter XV--Environmental Protection Agency 289
Chapter XVIII--National Aeronautics and Space
Administration 301
Chapter XX--United States Nuclear Regulatory
Commission 305
Chapter XXII--Corporation for National and Community
Service 309
Chapter XXIII--Social Security Administration 315
Chapter XXIV--Department of Housing and Urban
Development 321
Chapter XXV--National Science Foundation 333
Chapter XXVI--National Archives and Records
Administration 337
Chapter XXVII--Small Business Administration 341
Chapter XXVIII--Department of Justice 347
Chapter XXX--Department of Homeland Security 351
Chapter XXXI--Institute of Museum and Library
Services 359
Chapter XXXII--National Endowment for the Arts 365
Chapter XXXIII--National Endowment for the
Humanities 369
Chapter XXXV--Export-Import Bank of the United
States 375
Chapter XXXVII--Peace Corps 379
Chapter LVIII--Election Assistance Commission 383
Finding Aids:
Table of CFR Titles and Chapters........................ 391
Alphabetical List of Agencies Appearing in the CFR...... 411
List of CFR Sections Affected........................... 421
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 2 CFR 1.100 refers
to title 2, part 1,
section 100.
----------------------------
[[Page vi]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
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Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vii]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
April 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate
volumes. For the period beginning April 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
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CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page viii]]
The Federal Register Index is issued monthly in cumulative form.
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A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2012.
[[Page ix]]
THIS TITLE
Title 2--Grants and Agreements is composed of one volume. This
volume is comprised of Subtitle A--Office of Management and Budget
Guidance for Grants and Agreements and Subtitle B--Federal Agency
Regulations for Grants and Agreements. The contents of this volume
represents all current regulations codified under this title of the CFR
as of January 1, 2012.
For this volume, Susannah C. Hurley was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 2--GRANTS AND AGREEMENTS
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SUBTITLE A--Office of Management and Budget Guidance for Grants and
Agreements
Part
chapter i--Office of Management and Budget Governmentwide
Guidance for Grants and Agreements........................ 175
chapter ii--Office of Management and Budget Circulars and
Guidance.................................................. 215
SUBTITLE B--Federal Agency Regulations for Grants and Agreements
chapter iii--Department of Health and Human Services........ 376
chapter iv--Department of Agriculture....................... 417
chapter vi--Department of State............................. 601
chapter vii--Agency for International Development........... 780
chapter viii--Department of Veterans Affairs................ 801
chapter ix--Department of Energy............................ 901
chapter xi--Department of Defense........................... 1125
chapter xii--Department of Transportation................... 1200
chapter xiii--Department of Commerce........................ 1326
chapter xiv--Department of the Interior..................... 1400
chapter xv--Environmental Protection Agency................. 1532
chapter xviii--National Aeronautics and Space Administration 1880
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chapter xx--United States Nuclear Regulatory Commission..... 2000
chapter xxii--Corporation for National and Community Service 2200
chapter xxiii--Social Security Administration............... 2336
chapter xxiv--Department of Housing and Urban Development... 2424
chapter xxv--National Science Foundation.................... 2520
chapter xxvi--National Archives and Records Administration.. 2600
chapter xxvii--Small Business Administration................ 2700
chapter xxviii--Department of Justice....................... 2867
chapter xxx--Department of Homeland Security................ 3000
chapter xxxi--Institute of Museum and Library Services...... 3185
chapter xxxii--National Endowment for the Arts.............. 3254
chapter xxxiii--National Endowment for the Humanities....... 3369
chapter xxxv--Export-Import Bank of the United States....... 3513
chapter xxxvii--Peace Corps................................. 3700
chapter lviii--Election Assistance Commission............... 5800
[[Page 3]]
Subtitle A--Office of Management and Budget Guidance for Grants and
Agreements
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1 About Title 2 of the Code of Federal
Regulations and Subtitle A.............. 5
[[Page 5]]
PART 1_ABOUT TITLE 2 OF THE CODE OF FEDERAL REGULATIONS AND SUBTITLE
A--Table of Contents
Subpart A_Introduction to Title 2 of the CFR
Sec.
1.100 Content of this title.
1.105 Organization and subtitle content.
1.110 Issuing authorities.
Subpart B_Introduction to Subtitle A
1.200 Purpose of chapters I and II.
1.205 Applicability to grants and other funding instruments.
1.210 Applicability to Federal agencies and others.
1.215 Relationship to previous issuances.
1.220 Federal agency implementation of this subtitle.
1.230 Maintenance of this subtitle.
Subpart C_Responsibilities of OMB and Federal Agencies
1.300 OMB responsibilities.
1.305 Federal agency responsibilities.
Authority: 31 U.S.C. 503; 31 U.S.C. 1111; 41 U.S.C. 405;
Reorganization Plan No. 2 of 1970; E.O. 11541, 35 FR 10737, 3 CFR, 1966-
1970, p. 939.
Source: 69 FR 26280, May 11, 2004, unless otherwise noted.
Subpart A_Introduction to Title 2 of the CFR
Sec. 1.100 Content of this title.
This title contains--
(a) Office of Management and Budget (OMB) guidance to Federal
agencies on government-wide policies and procedures for the award and
administration of grants and agreements; and
(b) Federal agency regulations implementing that OMB guidance.
Sec. 1.105 Organization and subtitle content.
(a) This title is organized into two subtitles.
(b) The OMB guidance described in Sec. 1.100(a) is published in
subtitle A. Publication of the OMB guidance in the CFR does not change
its nature--it is guidance and not regulation.
(c) Each Federal agency that publishes regulations implementing the
OMB guidance has a chapter in subtitle B in which it issues those
regulations. The Federal agency regulations in subtitle B differ in
nature from the OMB guidance in subtitle A because the OMB guidance is
not regulatory (Federal agency regulations in subtitle B may give
regulatory effect to the OMB guidance, to the extent that the agency
regulations require compliance with all or portions of the guidance).
Sec. 1.110 Issuing authorities.
OMB issues this subtitle. Each Federal agency that has a chapter in
subtitle B of this title issues that chapter.
Subpart B_Introduction to Subtitle A
Sec. 1.200 Purpose of chapters I and II.
(a) Chapters I and II of subtitle A provide OMB guidance to Federal
agencies that helps ensure consistent and uniform government-wide
policies and procedures for management of the agencies' grants and
agreements.
(b) There are two chapters for publication of the guidance because
portions of it may be revised as a result of ongoing efforts to
streamline and simplify requirements for the award and administration of
grants and other financial assistance (and thereby implement the Federal
Financial Assistance Management Improvement Act of 1999, Pub. L. 106-
107).
(c) The OMB guidance in its initial form--before completion of
revisions described in paragraph (b) of this section--is published in
chapter II of this subtitle. When revisions to a part of the guidance
are finalized, that part is published in chapter I and removed from
chapter II.
Sec. 1.205 Applicability to grants and other funding instruments.
The types of instruments that are subject to the guidance in this
subtitle vary from one portion of the guidance to another (note that
each part identifies the types of instruments to which it applies). All
portions of the guidance apply to grants and cooperative agreements,
some portions also apply to other types of financial assistance or
nonprocurement instruments, and some portions also apply to procurement
contracts. For example, the:
[[Page 6]]
(a) Guidance on debarment and suspension in part 180 of this
subtitle applies broadly to all financial assistance and other
nonprocurement transactions, and not just to grants and cooperative
agreements.
(b) Cost principles in parts 220, 225 and 230 of this subtitle apply
to procurement contracts, as well as to financial assistance, although
those principles are implemented for procurement contracts through the
Federal Acquisition Regulation in title 48 of the CFR, rather than
through Federal agency regulations on grants and agreements in this
title.
[70 FR 51863, Aug. 31, 2005]
Sec. 1.210 Applicability to Federal agencies and others.
(a) This subtitle contains guidance that directly applies only to
Federal agencies.
(b) The guidance in this subtitle may affect others through each
Federal agency's implementation of the guidance, portions of which may
apply to--
(1) The agency's awarding or administering officials;
(2) Non-Federal entities that receive or apply for the agency's
grants or agreements or receive subawards under those grants or
agreements; or
(3) Any other entities involved in agency transactions subject to
the guidance in this chapter.
Sec. 1.215 Relationship to previous issuances.
Although some of the guidance was organized differently within OMB
circulars or other documents, much of the guidance in this subtitle
existed prior to the establishment of title 2 of the CFR. Specifically:
------------------------------------------------------------------------
Previously was in *
Guidance in * * * On * * * * *
------------------------------------------------------------------------
(a) Chapter I, part 180..... Nonprocurement OMB guidance that
debarment and conforms with the
suspension. government-wide
common rule (see 60
FR 33036, June 26,
1995).
(b) Chapter I, part 182..... Drug-free workplace OMB guidance (54 FR
requirements. 4946, January 31,
1989) and a
government-wide
common rule (as
amended at 68 FR
66534, November 26,
2003).
(c) Chapter II, part 215.... Administrative OMB Circular A-110.
requirements for
grants and
agreements.
(d) Chapter II, part 220.... Cost principles for OMB Circular A-21.
educational
institutions.
(e) Chapter II, part 225.... Cost principles for OMB Circular A-87.
State, local, and
Indian tribal
governments.
(f) Chapter II, part 230.... Cost principles for OMB Circular A-122.
non-profit
organizations.
(g) [Reserved]
------------------------------------------------------------------------
[74 FR 28149, June 15, 2009]
Sec. 1.220 Federal agency implementation of this subtitle.
A Federal agency that awards grants and agreements subject to the
guidance in this subtitle implements the guidance in agency regulations
in subtitle B of this title and/or in policy and procedural issuances,
such as internal instructions to the agency's awarding and administering
officials. An applicant or recipient would see the effect of that
implementation in the organization and content of the agency's
announcements of funding opportunities and in its award terms and
conditions.
Sec. 1.230 Maintenance of this subtitle.
OMB issues guidance in this subtitle after publication in the
Federal Register. Any portion of the guidance that has a potential
impact on the public is published with an opportunity for public
comment.
Subpart C_Responsibilities of OMB and Federal Agencies
Sec. 1.300 OMB responsibilities.
OMB is responsible for:
(a) Issuing and maintaining the guidance in this subtitle, as
described in Sec. 1.230.
[[Page 7]]
(b) Interpreting the policy requirements in this subtitle.
(c) Reviewing Federal agency regulations implementing the
requirements of this subtitle, as required by Executive Order 12866.
(d) Conducting broad oversight of government-wide compliance with
the guidance in this subtitle.
(e) Performing other OMB functions specified in this subtitle.
Sec. 1.305 Federal agency responsibilities.
The head of each Federal agency that awards and administers grants
and agreements subject to the guidance in this subtitle is responsible
for:
(a) Implementing the guidance in this subtitle.
(b) Ensuring that the agency's components and subcomponents comply
with the agency's implementation of the guidance.
(c) Performing other functions specified in this subtitle.
[[Page 9]]
CHAPTER I--OFFICE OF MANAGEMENT AND BUDGET GOVERNMENTWIDE GUIDANCE FOR
GRANTS AND AGREEMENTS
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SUBCHAPTER A--GENERAL MATTERS [RESERVED]
Part Page
2-19
[Reserved]
SUBCHAPTER B--PRE-AWARD RESPONSIBILITIES
20-24
[Reserved]
25 Universal identifier and central contractor
registration............................ 11
26-39
[Reserved]
SUBCHAPTER C--AWARD CONTENT AND FORMAT [RESERVED]
40-59
[Reserved]
SUBCHAPTER D--POST-AWARD RESPONSIBILITIES
60-79
[Reserved]
SUBCHAPTER E--COST PRINCIPLES [RESERVED]
80-99
[Reserved]
SUBCHAPTER F--AUDIT REQUIREMENTS [RESERVED]
100-119
[Reserved]
SUBCHAPTER G--NATIONAL POLICY REQUIREMENTS
120-169
[Reserved]
170 Reporting subaward and Executive
compensation information................ 16
171-174
[Reserved]
175 Award term for trafficking in persons....... 20
176 Award terms for assistance agreements that
include funds under the American
Recovery and Reinvestment Act of 2009,
Public Law 111-5........................ 22
177-179
[Reserved]
[[Page 10]]
180 OMB guidelines to agencies on governmentwide
debarment and suspension
(nonprocurement)........................ 43
181
[Reserved]
182 Governmentwide requirements for drug-free
workplace (financial assistance)........ 67
183-199
[Reserved]
[[Page 11]]
SUBCHAPTER A_GENERAL MATTERS [RESERVED]
PARTS 2 19 [RESERVED]
SUBCHAPTER B_PRE-AWARD RESPONSIBILITIES
PARTS 20 24 [RESERVED]
PART 25_UNIVERSAL IDENTIFIER AND CENTRAL CONTRACTOR REGISTRATION--Table
of Contents
Subpart A_General
Sec.
25.100 Purposes of this part.
25.105 Types of awards to which this part applies.
25.110 Types of recipient and subrecipient entities to which this part
applies.
25.115 Deviations.
Subpart B_Policy
25.200 Requirements for program announcements, regulations, and
application instructions.
25.205 Effect of noncompliance with a requirement to obtain a DUNS
number or register in the CCR.
25.210 Authority to modify agency application forms or formats.
25.215 Requirements for agency information systems.
25.220 Use of award term.
Subpart C_Definitions
25.300 Agency.
25.305 Award.
25.310 Central Contractor Registration (CCR).
25.315 Data Universal Numbering System (DUNS) Number.
25.320 Entity.
25.325 For-profit organization.
25.330 Foreign public entity.
25.335 Indian Tribe (or ``Federally recognized Indian Tribe'').
25.340 Local government.
25.345 Nonprofit organization.
25.350 State.
25.355 Subaward.
25.360 Subrecipient.
Appendix A to Part 25--Award Term
Authority: Pub. L. 109-282; 31 U.S.C. 6102.
Source: 75 FR 55673, Sept. 14, 2010, unless otherwise noted.
Subpart A General
Sec. 25.100 Purposes of this part.
This part provides guidance to agencies to establish:
(a) The Dun and Bradstreet (D&B) Data Universal Numbering System
(DUNS) number as a universal identifier for Federal financial assistance
applicants, as well as recipients and their direct subrecipients.
(b) The Central Contractor Registration (CCR) as the repository for
standard information about applicants and recipients.
Sec. 25.105 Types of awards to which this part applies.
This part applies to an agency's grants, cooperative agreements,
loans, and other types of Federal financial assistance included in the
definition of ``award'' in Sec. 25.305. The requirements in this part
must be implemented for grants and cooperative agreements by October 1,
2010. The requirements in this part must be implemented for all other
award forms listed in Sec. 25.200 requirement at a date to be specified
in the future.
Sec. 25.110 Types of recipient and subrecipient entities to which this
part applies.
(a) General. Through an agency's implementation of the guidance in
this part, this part applies to all entities, other than those exempted
in paragraphs (b), (c), and (d) of this section, that--
(1) Apply for or receive agency awards; or
(2) Receive subawards directly from recipients of those agency
awards.
(b) Exemptions for individuals. None of the requirements in this
part apply to an individual who applies for or receives Federal
financial assistance as a
[[Page 12]]
natural person (i.e., unrelated to any business or non-profit
organization he or she may own or operate in his or her name).
(c) Exemptions for Federal agencies. The requirement in this part to
maintain a current registration in the CCR does not apply to an agency
of the Federal Government that receives an award from another agency.
(d) Other exemptions. (1) Under a condition identified in paragraph
(d)(2) of this section, an agency may exempt an entity from an
applicable requirement to obtain a DUNS number, register in the CCR, or
both.
(i) In that case, the agency must use a generic DUNS number in data
it reports to USASpending.gov if reporting for a prime award to the
entity is required by the Federal Funding Accountability and
Transparency Act (Pub. L. 109-282, hereafter cited as ``Transparency
Act'').
(ii) Agency use of a generic DUNS should be used rarely for prime
award reporting because it prevents prime awardees from being able to
fulfill the subward or executive compensation reporting required by the
Transparency Act.
(2) The conditions under which an agency may exempt an entity are--
(i) For any entity, if the agency determines that it must protect
information about the entity from disclosure, to avoid compromising
classified information or national security or jeopardizing the personal
safety of the entity's clients.
(ii) For a foreign entity applying for or receiving an award or
subaward for a project or program performed outside the United States
valued at less than $25,000, if the agency deems it to be impractical
for the entity to comply with the requirement(s).
(3) Agencies' use of generic DUNS numbers, as described in
paragraphs (d)(1) and (2) of this section, should be rare. Having a
generic DUNS number limits a recipient's ability to use Governmentwide
systems that are needed to comply with some reporting requirements.
Sec. 25.115 Deviations.
Deviations from this part require the prior approval of the Office
of Management and Budget (OMB).
Subpart B_Policy
Sec. 25.200 Requirements for program announcements, regulations, and
application instructions.
(a) Each agency that awards types of Federal financial assistance
included in the definition of ``award'' in Sec. 25.305 must include the
requirements described in paragraph (b) of this section in each program
announcement, regulation, or other issuance containing instructions for
applicants that either:
(1) Is issued on or after the effective date of this part; or
(2) Has application or plan due dates after October 1, 2010.
(b) The program announcement, regulation, or other issuance must
require each entity that applies and does not have an exemption under
Sec. 25.110 to:
(1) Be registered in the CCR prior to submitting an application or
plan;
(2) Maintain an active CCR registration with current information at
all times during which it has an active Federal award or an application
or plan under consideration by an agency; and
(3) Provide its DUNS number in each application or plan it submits
to the agency.
(c) For purposes of this policy:
(1) The applicant is the entity that meets the agency's or program's
eligibility criteria and has the legal authority to apply and to receive
the award. For example, if a consortium applies for an award to be made
to the consortium as the recipient, the consortium must have a DUNS
number. If a consortium is eligible to receive funding under an agency
program but the agency's policy is to make the award to a lead entity
for the consortium, the DUNS number of the lead entity will be used.
(2) A ``program announcement'' is any paper or electronic issuance
that an agency uses to announce a funding opportunity, whether it is
called a ``program announcement,'' ``notice of funding availability,''
``broad agency
[[Page 13]]
announcement,'' ``research announcement,'' ``solicitation,'' or some
other term.
(3) To remain registered in the CCR database after the initial
registration, the applicant is required to review and update on an
annual basis from the date of initial registration or subsequent updates
its information in the CCR database to ensure it is current, accurate
and complete.
Sec. 25.205 Effect of noncompliance with a requirement to obtain a
DUNS number or register in the CCR.
(a) An agency may not make an award to an entity until the entity
has complied with the requirements described in Sec. 25.200 to provide
a valid DUNS number and maintain an active CCR registration with current
information (other than any requirement that is not applicable because
the entity is exempted under Sec. 25.110).
(b) At the time an agency is ready to make an award, if the intended
recipient has not complied with an applicable requirement to provide a
DUNS number or maintain an active CCR registration with current
information, the agency:
(1) May determine that the applicant is not qualified to receive an
award; and
(2) May use that determination as a basis for making an award to
another applicant.
Sec. 25.210 Authority to modify agency application forms or formats.
To implement the policies in Sec. Sec. 25.200 and 25.205, an agency
may add a DUNS number field to application forms or formats previously
approved by OMB, without having to obtain further approval to add the
field.
Sec. 25.215 Requirements for agency information systems.
Each agency that makes awards (as defined in Sec. 25.325) must
ensure that systems processing information related to the awards, and
other systems as appropriate, are able to accept and use the DUNS number
as the universal identifier for financial assistance applicants and
recipients.
Sec. 25.220 Use of award term.
(a) To accomplish the purposes described in Sec. 25.100, an agency
must include in each award (as defined in Sec. 25.305) the award term
in Appendix A to this part.
(b) An agency may use different letters and numbers than those in
Appendix A to this part to designate the paragraphs of the award term,
if necessary, to conform the system of paragraph designations with the
one used in other terms and conditions in the agency's awards.
Subpart C_Definitions
Sec. 25.300 Agency.
Agency means a Federal agency as defined at 5 U.S.C. 551(1) and
further clarified by 5 U.S.C. 552(f).
Sec. 25.305 Award.
(a) Award, for the purposes of this part, means an award of Federal
financial assistance that a non-Federal entity described in Sec.
25.110(a) receives or administers in the form of--
(1) A grant;
(2) A cooperative agreement (which does not include a cooperative
research and development agreement pursuant to the Federal Technology
Transfer Act of 1986, as amended (15 U.S.C. 3710a));
(3) A loan;
(4) A loan guarantee;
(5) A subsidy;
(6) Insurance;
(7) Food commodities;
(8) A direct appropriation;
(9) Assessed or voluntary contributions; or
(10) Any other financial assistance transaction that authorizes the
non-Federal entity's expenditure of Federal funds.
(b) An Award does not include:
(1) Technical assistance, which provides services in lieu of money;
and
(2) A transfer of title to Federally owned property provided in lieu
of money, even if the award is called a grant.
[[Page 14]]
Sec. 25.310 Central Contractor Registration (CCR).
Central Contractor Registration (CCR) has the meaning given in
paragraph C.1 of the award term in Appendix A to this part.
Sec. 25.315 Data Universal Numbering System (DUNS) Number.
Data Universal Numbering System (DUNS) Number has the meaning given
in paragraph C.2 of the award term in Appendix A to this part.
Sec. 25.320 Entity.
Entity, as it is used in this part, has the meaning given in
paragraph C.3 of the award term in Appendix A to this part.
Sec. 25.325 For-profit organization.
For-profit organization means a non-Federal entity organized for
profit. It includes, but is not limited to:
(a) An ``S corporation'' incorporated under Subchapter S of the
Internal Revenue Code;
(b) A corporation incorporated under another authority;
(c) A partnership;
(d) A limited liability corporation or partnership; and
(e) A sole proprietorship.
Sec. 25.330 Foreign public entity.
Foreign public entity means:
(a) A foreign government or foreign governmental entity;
(b) A public international organization, which is an organization
entitled to enjoy privileges, exemptions, and immunities as an
international organization under the International Organizations
Immunities Act (22 U.S.C. 288-288f);
(c) An entity owned (in whole or in part) or controlled by a foreign
government; and
(d) Any other entity consisting wholly or partially of one or more
foreign governments or foreign governmental entities.
Sec. 25.335 Indian Tribe (or ``Federally recognized Indian Tribe'').
Indian Tribe (or ``Federally recognized Indian Tribe'') means any
Indian Tribe, band, nation, or other organized group or community,
including any Alaskan Native village or regional or village corporation
(as defined in, or established under, the Alaskan Native Claims
Settlement Act (43 U.S.C. 1601, et seq.)) that is recognized by the
United States as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.
Sec. 25.340 Local government.
Local government means a:
(a) County;
(b) Borough;
(c) Municipality;
(d) City;
(e) Town;
(f) Township;
(g) Parish;
(h) Local public authority, including any public housing agency
under the United States Housing Act of 1937;
(i) Special district;
(j) School district;
(k) Intrastate district;
(l) Council of governments, whether or not incorporated as a
nonprofit corporation under State law; and
(m) Any other instrumentality of a local government.
Sec. 25.345 Nonprofit organization.
Nonprofit organization--
(a) Means any corporation, trust, association, cooperative, or other
organization that--
(1) Is operated primarily for scientific, educational, service,
charitable, or similar purposes in the public interest;
(2) Is not organized primarily for profit; and
(3) Uses net proceeds to maintain, improve, or expand the operations
of the organization.
(b) Includes nonprofit--
(1) Institutions of higher education;
(2) Hospitals; and
(3) Tribal organizations other than those included in the definition
of ``Indian Tribe.''
Sec. 25.350 State.
State means--
(a) Any State of the United States;
(b) The District of Columbia;
(c) Any agency or instrumentality of a State other than a local
government
[[Page 15]]
or State-controlled institution of higher education;
(d) The Commonwealths of Puerto Rico and the Northern Mariana
Islands; and
(e) The United States Virgin Islands, Guam, American Samoa, and a
territory or possession of the United States.
Sec. 25.355 Subaward.
Subaward has the meaning given in paragraph C.4 of the award term in
Appendix A to this part.
Sec. 25.360 Subrecipient.
Subrecipient has the meaning given in paragraph C.5 of the award
term in Appendix A to this part.
Sec. Appendix A to Part 25--Award Term
I. Central Contractor Registration and Universal Identifier Requirements
A. Requirement for Central Contractor Registration (CCR)
Unless you are exempted from this requirement under 2 CFR 25.110,
you as the recipient must maintain the currency of your information in
the CCR until you submit the final financial report required under this
award or receive the final payment, whichever is later. This requires
that you review and update the information at least annually after the
initial registration, and more frequently if required by changes in your
information or another award term.
B. Requirement for Data Universal Numbering System (DUNS) Numbers
If you are authorized to make subawards under this award, you:
1. Must notify potential subrecipients that no entity (see
definition in paragraph C of this award term) may receive a subaward
from you unless the entity has provided its DUNS number to you.
2. May not make a subaward to an entity unless the entity has
provided its DUNS number to you.
C. Definitions
For purposes of this award term:
1. Central Contractor Registration (CCR) means the Federal
repository into which an entity must provide information required for
the conduct of business as a recipient. Additional information about
registration procedures may be found at the CCR Internet site (currently
at http://www.ccr.gov).
2. Data Universal Numbering System (DUNS) number means the nine-
digit number established and assigned by Dun and Bradstreet, Inc. (D&B)
to uniquely identify business entities. A DUNS number may be obtained
from D&B by telephone (currently 866-705-5711) or the Internet
(currently at http://fedgov.dnb.com/webform).
3. Entity, as it is used in this award term, means all of the
following, as defined at 2 CFR part 25, subpart C:
a. A Governmental organization, which is a State, local government,
or Indian Tribe;
b. A foreign public entity;
c. A domestic or foreign nonprofit organization;
d. A domestic or foreign for-profit organization; and
e. A Federal agency, but only as a subrecipient under an award or
subaward to a non-Federal entity.
4. Subaward:
a. This term means a legal instrument to provide support for the
performance of any portion of the substantive project or program for
which you received this award and that you as the recipient award to an
eligible subrecipient.
b. The term does not include your procurement of property and
services needed to carry out the project or program (for further
explanation, see Sec. ----.210 of the attachment to OMB Circular A-133,
``Audits of States, Local Governments, and Non-Profit Organizations'').
c. A subaward may be provided through any legal agreement, including
an agreement that you consider a contract.
5. Subrecipient means an entity that:
a. Receives a subaward from you under this award; and
b. Is accountable to you for the use of the Federal funds provided
by the subaward.
PARTS 26 39 [RESERVED]
[[Page 16]]
SUBCHAPTER C_Award content and format [RESERVED]
PARTS 40 59 [RESERVED]
SUBCHAPTER D_POST-AWARD RESPONSIBILITIES [RESERVED]
PARTS 60 79 [RESERVED]
SUBCHAPTER E_COST PRINCIPLES [RESERVED]
PARTS 80 99 [RESERVED]
SUBCHAPTER F_AUDIT REQUIREMENTS [RESERVED]
PARTS 100 119 [RESERVED]
SUBCHAPTER G_NATIONAL POLICY REQUIREMENTS
PARTS 120 169 [RESERVED]
PART 170_REPORTING SUBAWARD AND EXECUTIVE COMPENSATION
INFORMATION--Table of Contents
Subpart A_General
Sec.
170.100 Purposes of this part.
170.105 Types of awards to which this part applies.
170.110 Types of entities to which this part applies.
170.115 Deviations.
Subpart B_Policy
170.200 Requirements for program announcements, regulations, and
application instructions.
170.220 Award term
Subpart C_Definitions
170.300 Agency.
170.305 Award.
170.310 Entity.
170.315 Executive
170.320 Federal financial assistance subject to the Transparency Act.
170.325 Subaward.
170.330 Total compensation.
Authority: Pub. L. 109-282; 31 U.S.C. 6102.
Source: 75 FR 55669, Sept. 14, 2010, unless otherwise noted.
Subpart A_General
Sec. 170.100 Purposes of this part.
This part provides guidance to agencies to establish requirements
for recipients' reporting of information on subawards and executive
total compensation, as required by the Federal Funding Accountability
and Transparency Act of 2006 (Pub. L. 109-282), as amended by section
6202 of Public Law 110-252, hereafter referred to as ``the Transparency
Act''.
Sec. 170.105 Types of awards to which this part applies.
This part applies to an agency's grants, cooperative agreements,
loans, and other forms of Federal financial assistance subject to the
Transparency Act, as defined in Sec. 170.320.
[[Page 17]]
Sec. 170.110 Types of entities to which this part applies.
(a) General. Through an agency's implementation of the guidance in
this part, this part applies to all entities, other than those excepted
in paragraph (b) of this section, that--
(1) Apply for or receive agency awards; or
(2) Receive subawards under those awards.
(b) Exceptions. (1) None of the requirements in this part apply to
an individual who applies for or receives an award as a natural person
(i.e., unrelated to any business or non-profit organization he or she
may own or operate in his or her name).
(2) None of the requirements regarding reporting names and total
compensation of an entity's five most highly compensated executives
apply unless in the entity's preceding fiscal year, it received--
(i) 80 percent or more of its annual gross revenue in Federal
procurement contracts (and subcontracts) and Federal financial
assistance awards subject to the Transparency Act, as defined at Sec.
170.320 (and subawards); and
(ii) $25,000,000 or more in annual gross revenue from Federal
procurement contracts (and subcontracts) and Federal financial
assistance awards subject to the Transparency Act, as defined at Sec.
170.320; and
(3) The public does not have access to information about the
compensation of the senior executives through periodic reports filed
under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15
U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of
1986.
Sec. 170.115 Deviations.
Deviations from this part require the prior approval of the Office
of Management and Budget (OMB).
Subpart B_Policy
Sec. 170.200 Requirements for program announcements, regulations, and
application instructions.
(a) Each agency that makes awards of Federal financial assistance
subject to the Transparency Act must include the requirements described
in paragraph (b) of this section in each program announcement,
regulation, or other issuance containing instructions for applicants:
(1) Under which awards may be made that are subject to Transparency
Act reporting requirements; and
(2) That either:
(i) Is issued on or after the effective date of this part; or
(ii) Has application or plan due dates after October 1, 2010.
(b) The program announcement, regulation, or other issuance must
require each entity that applies and does not have an exception under
Sec. 170.110(b) to ensure they have the necessary processes and systems
in place to comply with the reporting requirements should they receive
funding.
(c) Federal agencies that obtain post-award data on subaward
obligations outside of this policy should take the necessary steps to
ensure that their recipients are not required, due to the combination of
agency-specific and Transparency Act reporting requirements, to submit
the same or similar data multiple times during a given reporting period.
Sec. 170.220 Award term.
(a) To accomplish the purposes described in Sec. 170.100, an agency
must include the award term in Appendix A to this part in each award to
a non-Federal entity under which the total funding will include $25,000
or more in Federal funding at any time during the project or program
period.
(b) An agency--
(1) Consistent with paragraph (a) of this section, is not required
to include the award term in Appendix A to this part if it determines
that there is no possibility that the total amount of Federal funding
under the award will equal or exceed $25,000. However, the agency must
subsequently amend the award to add the award term if changes in
circumstances increase the total Federal funding under the award to
$25,000 or more during the project or program period.
[[Page 18]]
Subpart C_Definitions
Sec. 170.300 Agency.
Agency means a Federal agency as defined at 5 U.S.C. 551(1) and
further clarified by 5 U.S.C. 552(f).
Sec. 170.305 Award.
Award, for the purposes of this part, effective October 1, 2010,
means a grant or cooperative agreement. On future dates to be specified
by OMB in policy memoranda available at the OMB Web site, award also
will include other types of awards of Federal financial assistance
subject to the Transparency Act, as defined in Sec. 170.320.
Sec. 170.310 Entity.
Entity has the meaning given in 2 CFR part 25.
Sec. 170.315 Executive.
Executive means officers, managing partners, or any other employees
in management positions.
Sec. 170.320 Federal financial assistance subject to the Transparency
Act.
Federal financial assistance subject to the Transparency Act means
assistance that non-Federal entities described in Sec. 170.105 receive
or administer in the form of--
(a) Grants;
(b) Cooperative agreements (which does not include cooperative
research and development agreements pursuant to the Federal Technology
Transfer Act of 1986, as amended (15 U.S.C. 3710a));
(c) Loans;
(d) Loan guarantees;
(e) Subsidies;
(f) Insurance;
(g) Food commodities;
(h) Direct appropriations;
(i) Assessed and voluntary contributions; and
(j) Other financial assistance transactions that authorize the non-
Federal entities' expenditure of Federal funds.
(b) Does not include--
(1) Technical assistance, which provides services in lieu of money;
(2) A transfer of title to Federally owned property provided in lieu
of money, even if the award is called a grant;
(3) Any classified award; or
(4) Any award funded in whole or in part with Recovery funds, as
defined in section 1512 of the American Recovery and Reinvestment Act of
2009 (Pub. L. 111-5).
Editorial Note: At 75 FR 55669, Sept. 14, 2010, Sec. 170.320 was
added with two paragraph (b)s.
Sec. 170.325 Subaward.
Subaward has the meaning given in paragraph e.3 of the award term in
Appendix A to this part.
Sec. 170.330 Total compensation.
Appendix A to Part 170--Award term
Total Compensation has the meaning given in paragraph e.5 of the
award term in Appendix A to this part.
Sec. Appendix A to Part 170--Award term
I. Reporting Subawards and Executive Compensation.
a. Reporting of first-tier subawards.
1. Applicability. Unless you are exempt as provided in paragraph d.
of this award term, you must report each action that obligates $25,000
or more in Federal funds that does not include Recovery funds (as
defined in section 1512(a)(2) of the American Recovery and Reinvestment
Act of 2009, Pub. L. 111-5) for a subaward to an entity (see definitions
in paragraph e. of this award term).
2. Where and when to report.
i. You must report each obligating action described in paragraph
a.1. of this award term to http://www.fsrs.gov.
ii. For subaward information, report no later than the end of the
month following the month in which the obligation was made. (For
example, if the obligation was made on November 7, 2010, the obligation
must be reported by no later than December 31, 2010.)
3. What to report. You must report the information about each
obligating action that the submission instructions posted at http://
www.fsrs.gov specify.
b. Reporting Total Compensation of Recipient Executives.
1. Applicability and what to report. You must report total
compensation for each of your five most highly compensated executives
for the preceding completed fiscal year, if--
i. the total Federal funding authorized to date under this award is
$25,000 or more;
ii. in the preceding fiscal year, you received--
(A) 80 percent or more of your annual gross revenues from Federal
procurement contracts (and subcontracts) and Federal financial
assistance subject to the Transparency Act, as defined at 2 CFR 170.320
(and subawards); and
[[Page 19]]
(B) $25,000,000 or more in annual gross revenues from Federal
procurement contracts (and subcontracts) and Federal financial
assistance subject to the Transparency Act, as defined at 2 CFR 170.320
(and subawards); and
iii. The public does not have access to information about the
compensation of the executives through periodic reports filed under
section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C.
78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986.
(To determine if the public has access to the compensation information,
see the U.S. Security and Exchange Commission total compensation filings
at http://www.sec.gov/answers/execomp.htm.)
2. Where and when to report. You must report executive total
compensation described in paragraph b.1. of this award term:
i. As part of your registration profile at http://www.ccr.gov.
ii. By the end of the month following the month in which this award
is made, and annually thereafter.
c. Reporting of Total Compensation of Subrecipient Executives.
1. Applicability and what to report. Unless you are exempt as
provided in paragraph d. of this award term, for each first-tier
subrecipient under this award, you shall report the names and total
compensation of each of the subrecipient's five most highly compensated
executives for the subrecipient's preceding completed fiscal year, if--
i. in the subrecipient's preceding fiscal year, the subrecipient
received--
(A) 80 percent or more of its annual gross revenues from Federal
procurement contracts (and subcontracts) and Federal financial
assistance subject to the Transparency Act, as defined at 2 CFR 170.320
(and subawards); and
(B) $25,000,000 or more in annual gross revenues from Federal
procurement contracts (and subcontracts), and Federal financial
assistance subject to the Transparency Act (and subawards); and
ii. The public does not have access to information about the
compensation of the executives through periodic reports filed under
section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C.
78m(a), 78o(d)) or section 6104 of the Internal Revenue Code of 1986.
(To determine if the public has access to the compensation information,
see the U.S. Security and Exchange Commission total compensation filings
at http://www.sec.gov/answers/execomp.htm.)
2. Where and when to report. You must report subrecipient executive
total compensation described in paragraph c.1. of this award term:
i. To the recipient.
ii. By the end of the month following the month during which you
make the subaward. For example, if a subaward is obligated on any date
during the month of October of a given year (i.e., between October 1 and
31), you must report any required compensation information of the
subrecipient by November 30 of that year.
d. Exemptions
If, in the previous tax year, you had gross income, from all
sources, under $300,000, you are exempt from the requirements to report:
i. Subawards,
and
ii. The total compensation of the five most highly compensated
executives of any subrecipient.
e. Definitions. For purposes of this award term:
1. Entity means all of the following, as defined in 2 CFR part 25:
i. A Governmental organization, which is a State, local government,
or Indian tribe;
ii. A foreign public entity;
iii. A domestic or foreign nonprofit organization;
iv. A domestic or foreign for-profit organization;
v. A Federal agency, but only as a subrecipient under an award or
subaward to a non-Federal entity.
2. Executive means officers, managing partners, or any other
employees in management positions.
3. Subaward:
i. This term means a legal instrument to provide support for the
performance of any portion of the substantive project or program for
which you received this award and that you as the recipient award to an
eligible subrecipient.
ii. The term does not include your procurement of property and
services needed to carry out the project or program (for further
explanation, see Sec. ---- .210 of the attachment to OMB Circular A-133,
``Audits of States, Local Governments, and Non-Profit Organizations'').
iii. A subaward may be provided through any legal agreement,
including an agreement that you or a subrecipient considers a contract.
4. Subrecipient means an entity that:
i. Receives a subaward from you (the recipient) under this award;
and
ii. Is accountable to you for the use of the Federal funds provided
by the subaward.
5. Total compensation means the cash and noncash dollar value earned
by the executive during the recipient's or subrecipient's preceding
fiscal year and includes the following (for more information see 17 CFR
229.402(c)(2)):
i. Salary and bonus.
ii. Awards of stock, stock options, and stock appreciation rights.
Use the dollar amount recognized for financial statement reporting
purposes with respect to the fiscal year in accordance with the
Statement of Financial Accounting Standards No. 123 (Revised 2004) (FAS
123R), Shared Based Payments.
[[Page 20]]
iii. Earnings for services under non-equity incentive plans. This
does not include group life, health, hospitalization or medical
reimbursement plans that do not discriminate in favor of executives, and
are available generally to all salaried employees.
iv. Change in pension value. This is the change in present value of
defined benefit and actuarial pension plans.
v. Above-market earnings on deferred compensation which is not tax-
qualified.
vi. Other compensation, if the aggregate value of all such other
compensation (e.g. severance, termination payments, value of life
insurance paid on behalf of the employee, perquisites or property) for
the executive exceeds $10,000.
PARTS 171 174 [RESERVED]
PART 175_AWARD TERM FOR TRAFFICKING IN PERSONS--Table of Contents
Sec.
175.5 Purpose of this part.
175.10 Statutory requirement.
175.15 Award term.
175.20 Referral.
175.25 Definitions.
Authority: 22 U.S.C. 7104(g); 31 U.S.C. 503; 31 U.S.C. 1111; 41
U.S.C. 405; Reorganization Plan No. 2 of 1970; E.O. 11541, 35 FR 10737,
3 CFR, 1966-1970, p. 939.
Source: 72 FR 63783, Nov. 13, 2007, unless otherwise noted.
Sec. 175.5 Purpose of this part.
This part establishes a Governmentwide award term for grants and
cooperative agreements to implement the requirement in paragraph (g) of
section 106 of the Trafficking Victims Protection Act of 2000 (TVPA), as
amended (22 U.S.C. 7104(g)).
Sec. 175.10 Statutory requirement.
In each agency award (i.e., grant or cooperative agreement) under
which funding is provided to a private entity, section 106(g) of the
TVPA, as amended, requires the agency to include a condition that
authorizes the agency to terminate the award, without penalty, if the
recipient or a subrecipient--
(a) Engages in severe forms of trafficking in persons during the
period of time that the award is in effect;
(b) Procures a commercial sex act during the period of time that the
award is in effect; or
(c) Uses forced labor in the performance of the award or subawards
under the award.
Sec. 175.15 Award term.
(a) To implement the trafficking in persons requirement in section
106(g) of the TVPA, as amended, a Federal awarding agency must include
the award term in paragraph (b) of this section in--
(1) A grant or cooperative agreement to a private entity, as defined
in Sec. 175.25(d); and
(2) A grant or cooperative agreement to a State, local government,
Indian tribe or foreign public entity, if funding could be provided
under the award to a private entity as a subrecipient.
(b) The award term that an agency must include, as described in
paragraph (a) of this section, is:
I. Trafficking in persons.
a. Provisions applicable to a recipient that is a private entity.
1. You as the recipient, your employees, subrecipients under this
award, and subrecipients' employees may not--
i. Engage in severe forms of trafficking in persons during the
period of time that the award is in effect;
ii. Procure a commercial sex act during the period of time that the
award is in effect; or
iii. Use forced labor in the performance of the award or subawards
under the award.
2. We as the Federal awarding agency may unilaterally terminate this
award, without penalty, if you or a subrecipient that is a private
entity --
i. Is determined to have violated a prohibition in paragraph a.1 of
this award term; or
ii. Has an employee who is determined by the agency official
authorized to terminate the award to have violated a prohibition in
paragraph a.1 of this award term through conduct that is either--
A. Associated with performance under this award; or
B. Imputed to you or the subrecipient using the standards and due
process for imputing the conduct of an individual to an organization
that are provided in 2 CFR part 180, ``OMB Guidelines to Agencies on
Governmentwide Debarment and Suspension (Nonprocurement),'' as
implemented by our agency at [agency must insert reference here to its
regulatory implementation of the OMB guidelines in 2 CFR part 180 (e.g.,
``2 CFR part XX'')].
b. Provision applicable to a recipient other than a private entity.
We as the Federal awarding agency may unilaterally terminate
[[Page 21]]
this award, without penalty, if a subrecipient that is a private
entity--
1. Is determined to have violated an applicable prohibition in
paragraph a.1 of this award term; or
2. Has an employee who is determined by the agency official
authorized to terminate the award to have violated an applicable
prohibition in paragraph a.1 of this award term through conduct that is
either--
i. Associated with performance under this award; or
ii. Imputed to the subrecipient using the standards and due process
for imputing the conduct of an individual to an organization that are
provided in 2 CFR part 180, ``OMB Guidelines to Agencies on
Governmentwide Debarment and Suspension (Nonprocurement),'' as
implemented by our agency at [agency must insert reference here to its
regulatory implementation of the OMB guidelines in 2 CFR part 180 (e.g.,
``2 CFR part XX'')].
c. Provisions applicable to any recipient.
1. You must inform us immediately of any information you receive
from any source alleging a violation of a prohibition in paragraph a.1
of this award term.
2. Our right to terminate unilaterally that is described in
paragraph a.2 or b of this section:
i. Implements section 106(g) of the Trafficking Victims Protection
Act of 2000 (TVPA), as amended (22 U.S.C. 7104(g)), and
ii. Is in addition to all other remedies for noncompliance that are
available to us under this award.
3. You must include the requirements of paragraph a.1 of this award
term in any subaward you make to a private entity.
d. Definitions. For purposes of this award term:
1. ``Employee'' means either:
i. An individual employed by you or a subrecipient who is engaged in
the performance of the project or program under this award; or
ii. Another person engaged in the performance of the project or
program under this award and not compensated by you including, but not
limited to, a volunteer or individual whose services are contributed by
a third party as an in-kind contribution toward cost sharing or matching
requirements.
2. ``Forced labor'' means labor obtained by any of the following
methods: the recruitment, harboring, transportation, provision, or
obtaining of a person for labor or services, through the use of force,
fraud, or coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery.
3. ``Private entity'':
i. Means any entity other than a State, local government, Indian
tribe, or foreign public entity, as those terms are defined in 2 CFR
175.25.
ii. Includes:
A. A nonprofit organization, including any nonprofit institution of
higher education, hospital, or tribal organization other than one
included in the definition of Indian tribe at 2 CFR 175.25(b).
B. A for-profit organization.
4. ``Severe forms of trafficking in persons,'' ``commercial sex
act,'' and ``coercion'' have the meanings given at section 103 of the
TVPA, as amended (22 U.S.C. 7102).
(c) An agency may use different letters and numbers to designate the
paragraphs of the award term in paragraph (b) of this section, if
necessary, to conform the system of paragraph designations with the one
used in other terms and conditions in the agency's awards.
Sec. 175.20 Referral.
An agency official should inform the agency's suspending or
debarring official if he or she terminates an award based on a violation
of a prohibition contained in the award term under Sec. 175.15.
Sec. 175.25 Definitions.
Terms used in this part are defined as follows:
(a) Foreign public entity means:
(1) A foreign government or foreign governmental entity;
(2) A public international organization, which is an organization
entitled to enjoy privileges, exemptions, and immunities as an
international organization under the International Organizations
Immunities Act (22 U.S.C. 288-288f);
(3) An entity owned (in whole or in part) or controlled by a foreign
government; and
(4) Any other entity consisting wholly or partially of one or more
foreign governments or foreign governmental entities.
(b) Indian tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaskan Native village or
regional or village corporation (as defined in, or established under,
the Alaskan Native Claims Settlement Act (43 U.S.C. 1601, et seq.)) that
is recognized by the United States as eligible for the special programs
and services provided by the United States to Indians because of their
status as Indians.
(c) Local government means a:
[[Page 22]]
(1) County;
(2) Borough;
(3) Municipality;
(4) City;
(5) Town;
(6) Township;
(7) Parish;
(8) Local public authority, including any public housing agency
under the United States Housing Act of 1937;
(9) Special district;
(10) School district;
(11) Intrastate district;
(12) Council of governments, whether or not incorporated as a
nonprofit corporation under State law; and
(13) Any other instrumentality of a local government.
(d) Private entity. (1) This term means any entity other than a
State, local government, Indian tribe, or foreign public entity.
(2) This term includes:
(i) A nonprofit organization, including any nonprofit institution of
higher education, hospital, or tribal organization other than one
included in the definition of Indian tribe in paragraph (b) of this
section.
(ii) A for-profit organization.
(e) State, consistent with the definition in section 103 of the
TVPA, as amended (22 U.S.C. 7102), means:
(1) Any State of the United States;
(2) The District of Columbia;
(3) Any agency or instrumentality of a State other than a local
government or State-controlled institution of higher education;
(4) The Commonwealths of Puerto Rico and the Northern Mariana
Islands; and
(5) The United States Virgin Islands, Guam, American Samoa, and a
territory or possession of the United States.
PART 176_AWARD TERMS FOR ASSISTANCE AGREEMENTS THAT INCLUDE FUNDS UNDER
THE AMERICAN RECOVERY AND REINVESTMENT ACT OF 2009, PUBLIC LAW 111
5--Table of Contents
Sec.
176.10 Purpose of this part.
176.20 Agency responsibilities (general).
176.30 Definitions.
Subpart A_Reporting and Registration Requirements under Section 1512 of
the American Recovery and Reinvestment Act of 2009
176.40 Procedure.
176.50 Award term--Reporting and registration requirements under section
1512 of the Recovery Act.
Subpart B_Buy American Requirement under Section 1605 of the American
Recovery and Reinvestment Act of 2009
176.60 Statutory requirement.
176.70 Policy.
176.80 Exceptions.
176.90 Acquisitions covered under international agreements.
176.100 Timely determination concerning the inapplicability of section
1605 of the Recovery Act.
176.110 Evaluating proposals of foreign iron, steel, and/or manufactured
goods.
176.120 Determinations on late requests.
176.130 Noncompliance.
176.140 Award term--Required Use of American Iron, Steel, and
Manufactured Goods--Section 1605 of the American Recovery and
Reinvestment Act of 2009.
176.150 Notice of Required Use of American Iron, Steel, and Manufactured
Goods--Section 1605 of the American Recovery and Reinvestment
Act of 2009.
176.160 Award term--Required Use of American Iron, Steel, and
Manufactured Goods (covered under International Agreements)--
Section 1605 of the American Recovery and Reinvestment Act of
2009.
176.170 Notice of Required Use of American Iron, Steel, and Manufactured
Goods (covered under International Agreements)--Section 1605
of the American Recovery and Reinvestment Act of 2009.
Appendix to Subpart B of 2 CFR Part 176--U.S. States, Other Sub-Federal
Entities, and Other Entities Subject to U.S. Obligations Under
International Agreements (as of February 16, 2010)
Subpart C_Wage Rate Requirements under Section 1606 of the American
Recovery and Reinvestment Act of 2009
176.180 Procedure.
176.190 Award term--Wage rate requirements under Section 1606 of the
Recovery Act.
[[Page 23]]
Subpart D_Single Audit Information for Recipients of Recovery Act Funds
176.200 Procedure.
176.210 Award term--Recovery Act transactions listed in Schedule of
Expenditures of Federal Awards and Recipient Responsibilities
for Informing Subrecipients.
Authority: American Recovery and Reinvestment Act of 2009, Public
Law 111-5; Federal Funding Accountability and Transparency Act of 2006,
(Pub. L. 109-282), as amended.
Source: 74 FR 18450, Apr. 23, 2009, unless otherwise noted.
Sec. 176.10 Purpose of this part.
This part establishes Federal Governmentwide award terms for
financial assistance awards, namely, grants, cooperative agreements, and
loans, to implement the cross-cutting requirements of the American
Recovery and Reinvestment Act of 2009, Public Law 111-5 (Recovery Act).
These requirements are cross-cutting in that they apply to more than one
agency's awards.
Sec. 176.20 Agency responsibilities (general).
(a) In any assistance award funded in whole or in part by the
Recovery Act, the award official shall indicate that the award is being
made under the Recovery Act, and indicate what projects and/or
activities are being funded under the Recovery Act. This requirement
applies whenever Recovery Act funds are used, regardless of the
assistance type.
(b) To maximize transparency of Recovery Act funds required for
reporting by the assistance recipient, the award official shall consider
structuring assistance awards to allow for separately tracking Recovery
Act funds.
(c) Award officials shall ensure that recipients comply with the
Recovery Act requirements of Subpart A. If the recipient fails to comply
with the reporting requirements or other award terms, the award official
or other authorized agency action official shall take the appropriate
enforcement or termination action in accordance with 2 CFR 215.62 or the
agency's implementation of the OMB Circular A-102 grants management
common rule. OMB Circular A-102 is available at http://
www.whitehouse.gov/omb/circulars/a102/a102.html.
(d) The award official shall make the recipient's failure to comply
with the reporting requirements a part of the recipient's performance
record.
Sec. 176.30 Definitions.
As used in this part--
Award means any grant, cooperative agreement or loan made with
Recovery Act funds. Award official means a person with the authority to
enter into, administer, and/or terminate financial assistance awards and
make related determinations and findings.
Classified or ``classified information'' means any knowledge that
can be communicated or any documentary material, regardless of its
physical form or characteristics, that--
(1)(i) Is owned by, is produced by or for, or is under the control
of the United States Government; or
(ii) Has been classified by the Department of Energy as privately
generated restricted data following the procedures in 10 CFR 1045.21;
and
(2) Must be protected against unauthorized disclosure according to
Executive Order 12958, Classified National Security Information, April
17, 1995, or classified in accordance with the Atomic Energy Act of
1954.
Recipient means any entity other than an individual that receives
Recovery Act funds in the form of a grant, cooperative agreement or loan
directly from the Federal Government.
Recovery funds or Recovery Act funds are funds made available
through the appropriations of the American Recovery and Reinvestment Act
of 2009, Public Law 111-5.
Subaward means--
(1) A legal instrument to provide support for the performance of any
portion of the substantive project or program for which the recipient
received this award and that the recipient awards to an eligible
subrecipient;
(2) The term does not include the recipient's procurement of
property and services needed to carry out the project or program (for
further explanation, see Sec. ----.210 of the attachment to OMB Circular
A-133, ``Audits of States,
[[Page 24]]
Local Governments, and Non-Profit Organizations''). OMB Circular A-133
is available at http://www.whitehouse.gov/omb/circulars/a133/a133.html.
(3) A subaward may be provided through any legal agreement,
including an agreement that the recipient or a subrecipient considers a
contract.
Subcontract means a legal instrument used by a recipient for
procurement of property and services needed to carry out the project or
program.
Subrecipient or Subawardee means a non-Federal entity that expends
Federal awards received from a pass-through entity to carry out a
Federal program, but does not include an individual that is a
beneficiary of such a program. A subrecipient may also be a recipient of
other Federal awards directly from a Federal awarding agency. Guidance
on distinguishing between a subrecipient and a vendor is provided in
Sec. ----.210 of OMB Circular A-133.
Subpart A_Reporting and Registration Requirements Under Section 1512 of
the American Recovery and Reinvestment Act of 2009
Sec. 176.40 Procedure.
The award official shall insert the standard award term in this
subpart in all awards funded in whole or in part with Recovery Act
funds, except for those that are classified, awarded to individuals, or
awarded under mandatory and entitlement programs, except as specifically
required by OMB, or expressly exempted from the reporting requirement in
the Recovery Act.
Sec. 176.50 Award term--Reporting and registration requirements under
section 1512 of the Recovery Act.
Agencies are responsible for ensuring that their recipients report
information required under the Recovery Act in a timely manner. The
following award term shall be used by agencies to implement the
recipient reporting and registration requirements in section 1512:
(a) This award requires the recipient to complete projects or
activities which are funded under the American Recovery and Reinvestment
Act of 2009 (Recovery Act) and to report on use of Recovery Act funds
provided through this award. Information from these reports will be made
available to the public.
(b) The reports are due no later than ten calendar days after each
calendar quarter in which the recipient receives the assistance award
funded in whole or in part by the Recovery Act.
(c) Recipients and their first-tier recipients must maintain current
registrations in the Central Contractor Registration (http://
www.ccr.gov) at all times during which they have active federal awards
funded with Recovery Act funds. A Dun and Bradstreet Data Universal
Numbering System (DUNS) Number (http://www.dnb.com) is one of the
requirements for registration in the Central Contractor Registration.
(d) The recipient shall report the information described in section
1512(c) of the Recovery Act using the reporting instructions and data
elements that will be provided online at http://www.FederalReporting.gov
and ensure that any information that is pre-filled is corrected or
updated as needed.
Subpart B_Buy American Requirement Under Section 1605 of the American
Recovery and Reinvestment Act of 2009
Sec. 176.60 Statutory requirement.
Section 1605 of the Recovery Act prohibits use of recovery funds for
a project for the construction, alteration, maintenance, or repair of a
public building or public work unless all of the iron, steel, and
manufactured goods used in the project are produced in the United
States. The law requires that this prohibition be applied in a manner
consistent with U.S. obligations under international agreements, and it
provides for waiver under three circumstances:
(a) Iron, steel, or relevant manufactured goods are not produced in
the United States in sufficient and reasonably available quantities and
of a satisfactory quality;
(b) Inclusion of iron, steel, or manufactured goods produced in the
United States will increase the cost of the
[[Page 25]]
overall project by more than 25 percent; or
(c) Applying the domestic preference would be inconsistent with the
public interest.
Sec. 176.70 Policy.
Except as provided in Sec. 176.80 or Sec. 176.90--
(a) None of the funds appropriated or otherwise made available by
the Recovery Act may be used for a project for the construction,
alteration, maintenance, or repair of a public building or public work
(see definitions at Sec. Sec. 176.140 and 176.160) unless--
(1) The public building or public work is located in the United
States; and
(2) All of the iron, steel, and manufactured goods used in the
project are produced or manufactured in the United States.
(i) Production in the United States of the iron or steel used in the
project requires that all manufacturing processes must take place in the
United States, except metallurgical processes involving refinement of
steel additives. These requirements do not apply to iron or steel used
as components or subcomponents of manufactured goods used in the
project.
(ii) There is no requirement with regard to the origin of components
or subcomponents in manufactured goods used in the project, as long as
the manufacturing occurs in the United States.
(b) Paragraph (a) of this section shall not apply where the Recovery
Act requires the application of alternative Buy American requirements
for iron, steel, and manufactured goods.
Sec. 176.80 Exceptions.
(a) When one of the following exceptions applies in a case or
category of cases, the award official may allow the recipient to use
foreign iron, steel and/or manufactured goods in the project without
regard to the restrictions of section 1605 of the Recovery Act:
(1) Nonavailability. The head of the Federal department or agency
may determine that the iron, steel or relevant manufactured good is not
produced or manufactured in the United States in sufficient and
reasonably available commercial quantities of a satisfactory quality.
The determinations of nonavailability of the articles listed at 48 CFR
25.104(a) and the procedures at 48 CFR 25.103(b)(1) also apply if any of
those articles are manufactured goods needed in the project.
(2) Unreasonable cost. The head of the Federal department or agency
may determine that the cost of domestic iron, steel, or relevant
manufactured goods will increase the cost of the overall project by more
than 25 percent in accordance with Sec. 176.110.
(3) Inconsistent with public interest. The head of the Federal
department or agency may determine that application of the restrictions
of section 1605 of the Recovery Act would be inconsistent with the
public interest.
(b) When a determination is made for any of the reasons stated in
this section that certain foreign iron, steel, and/or manufactured goods
may be used--
(1) The award official shall list the excepted materials in the
award; and
(2) The head of the Federal department or agency shall publish a
notice in the Federal Register within two weeks after the determination
is made, unless the item has already been determined to be domestically
nonavailable. A list of items that are not domestically available is at
48 CFR 25.104(a). The Federal Register notice or information from the
notice may be posted by OMB to Recovery.gov. The notice shall include--
(i) The title ``Buy American Exception under the American Recovery
and Reinvestment Act of 2009'';
(ii) The dollar value and brief description of the project; and
(iii) A detailed written justification as to why the restriction is
being waived.
Sec. 176.90 Acquisitions covered under international agreements.
Section 1605(d) of the Recovery Act provides that the Buy American
requirement in section 1605 shall be applied in a manner consistent with
U.S. obligations under international agreements.
(a) The Buy American requirement set out in Sec. 176.70 shall not
be applied where the iron, steel, or manufactured goods used in the
project are from a Party to an international agreement,
[[Page 26]]
listed in paragraph (b) of this section, and the recipient is required
under an international agreement, described in the appendix to this
subpart, to treat the goods and services of that Party the same as
domestic goods and services. As of January 1, 2010, this obligation
shall only apply to projects with an estimated value of $7,804,000 or
more and projects that are not specifically excluded from the
application of those agreements.
(b) The international agreements that obligate recipients that are
covered under an international agreement to treat the goods and services
of a Party the same as domestic goods and services and the respective
Parties to the agreements are:
(1) The World Trade Organization Government Procurement Agreement
(Aruba, Austria, Belgium, Bulgaria, Canada, Chinese Taipei (Taiwan),
Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy, Japan,
Korea (Republic of), Latvia, Liechtenstein, Lithuania, Luxembourg,
Malta, Netherlands, Norway, Poland, Portugal, Romania, Singapore, Slovak
Republic, Slovenia, Spain, Sweden, Switzerland, and United Kingdom);
(2) The following Free Trade Agreements:
(i) Dominican Republic-Central America-United States Free Trade
Agreement (Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Nicaragua);
(ii) North American Free Trade Agreement (NAFTA) (Canada and
Mexico);
(iii) United States-Australia Free Trade Agreement;
(iv) United States-Bahrain Free Trade Agreement;
(v) United States-Chile Free Trade Agreement;
(vi) United States-Israel Free Trade Agreement;
(vii) United States-Morocco Free Trade Agreement;
(viii) United States-Oman Free Trade Agreement;
(ix) United States-Peru Trade Promotion Agreement; and
(x) United States-Singapore Free Trade Agreement.
(3) United States-European Communities Exchange of Letters (May 15,
1995): Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy,
Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal,
Romania, Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom;
and
(4) Agreement between the Government of Canada and the Government of
the United States of America on Government Procurement.
[74 FR 18450, Apr. 23, 2009, as amended at 75 FR 14323, Mar. 25, 2010]
Sec. 176.100 Timely determination concerning the inapplicability of
section 1605 of the Recovery Act.
(a) The head of the Federal department or agency involved may make a
determination regarding inapplicability of section 1605 to a particular
case or to a category of cases.
(b) Before Recovery Act funds are awarded by the Federal agency or
obligated by the recipient for a project for the construction,
alteration, maintenance, or repair of a public building or public work,
an applicant or recipient may request from the award official a
determination concerning the inapplicability of section 1605 of the
Recovery Act for specifically identified items.
(c) The time for submitting the request and the information and
supporting data that must be included in the request are to be specified
in the agency's and recipient's request for applications and/or
proposals, and as appropriate, in other written communications. The
content of those communications should be consistent with the notice in
Sec. 176.150 or Sec. 176.170, whichever applies.
(d) The award official must evaluate all requests based on the
information provided and may supplement this information with other
readily available information.
(e) In making a determination based on the increased cost to the
project of using domestic iron, steel, and/or manufactured goods, the
award official must compare the total estimated cost of the project
using foreign iron, steel and/or relevant manufactured goods to the
estimated cost if all domestic iron,
[[Page 27]]
steel, and/or relevant manufactured goods were used. If use of domestic
iron, steel, and/or relevant manufactured goods would increase the cost
of the overall project by more than 25 percent, then the award official
shall determine that the cost of the domestic iron, steel, and/or
relevant manufactured goods is unreasonable.
Sec. 176.110 Evaluating proposals of foreign iron, steel, and/or
manufactured goods.
(a) If the award official receives a request for an exception based
on the cost of certain domestic iron, steel, and/or manufactured goods
being unreasonable, in accordance with Sec. 176.80, then the award
official shall apply evaluation factors to the proposal to use such
foreign iron, steel, and/or manufactured goods as follows:
(1) Use an evaluation factor of 25 percent, applied to the total
estimated cost of the project, if the foreign iron, steel, and/or
manufactured goods are to be used in the project based on an exception
for unreasonable cost requested by the applicant.
(2) Total evaluated cost = project cost estimate + (.25 x project
cost estimate, if paragraph (a)(1) of this section applies).
(b) Applicants or recipients also may submit alternate proposals
based on use of equivalent domestic iron, steel, and/or manufactured
goods to avoid possible denial of Recovery Act funding for the proposal
if the Federal Government determines that an exception permitting use of
the foreign item(s) does not apply.
(c) If the award official makes an award to an applicant that
proposed foreign iron, steel, and/or manufactured goods not listed in
the applicable notice in the request for applications or proposals, then
the award official must add the excepted materials to the list in the
award term.
Sec. 176.120 Determinations on late requests.
(a) If a recipient requests a determination regarding the
inapplicability of section 1605 of the Recovery Act after obligating
Recovery Act funds for a project for construction, alteration,
maintenance, or repair (late request), the recipient must explain why it
could not request the determination before making the obligation or why
the need for such determination otherwise was not reasonably
foreseeable. If the award official concludes that the recipient should
have made the request before making the obligation, the award official
may deny the request.
(b) The award official must base evaluation of any late request for
a determination regarding the inapplicability of section 1605 of the
Recovery Act on information required by Sec. 176.150(c) and (d) or
Sec. 176.170(c) and (d) and/or other readily available information.
(c) If a determination, under Sec. 176.80 is made after Recovery
Act funds were obligated for a project for construction, alteration,
maintenance, or repair that an exception to section 1605 of the Recovery
Act applies, the award official must amend the award to allow use of the
foreign iron, steel, and/or relevant manufactured goods. When the basis
of the exception is nonavailability or public interest, the amended
award shall reflect adjustment of the award amount, redistribution of
budgeted funds, and/or other appropriate actions taken to cover costs
associated with acquiring or using the foreign iron, steel, and/or
manufactured goods. When the basis for the exception is the unreasonable
cost of domestic iron, steel, and/or manufactured goods the award
official shall adjust the award amount or the budget, as appropriate, by
at least the differential established in Sec. 176.110(a).
Sec. 176.130 Noncompliance.
The award official must--
(a) Review allegations of violations of section 1605 of the Recovery
Act;
(b) Unless fraud is suspected, notify the recipient of the apparent
unauthorized use of foreign iron, steel, and/or manufactured goods and
request a reply, to include proposed corrective action; and
(c) If the review reveals that a recipient or subrecipient has used
foreign iron, steel, and/or manufactured goods without authorization,
take appropriate action, including one or more of the following:
(1) Process a determination concerning the inapplicability of
section
[[Page 28]]
1605 of the Recovery Act in accordance with Sec. 176.120.
(2) Consider requiring the removal and replacement of the
unauthorized foreign iron, steel, and/or manufactured goods.
(3) If removal and replacement of foreign iron, steel, and/or
manufactured goods used in a public building or a public work would be
impracticable, cause undue delay, or otherwise be detrimental to the
interests of the Federal Government, the award official may determine in
writing that the foreign iron, steel, and/or manufactured goods need not
be removed and replaced. A determination to retain foreign iron, steel,
and/or manufactured goods does not constitute a determination that an
exception to section 1605 of the Recovery Act applies, and this should
be stated in the determination. Further, a determination to retain
foreign iron, steel, and/or manufactured goods does not affect the
Federal Government's right to reduce the amount of the award by the cost
of the steel, iron, or manufactured goods that are used in the project
or to take enforcement or termination action in accordance with the
agency's grants management regulations.
(4) If the noncompliance is sufficiently serious, consider
exercising appropriate remedies, such as withholding cash payments
pending correction of the deficiency, suspending or terminating the
award, and withholding further awards for the project. Also consider
preparing and forwarding a report to the agency suspending or debarring
official in accordance with the agency's debarment rule implementing 2
CFR part 180. If the noncompliance appears to be fraudulent, refer the
matter to other appropriate agency officials, such as the officer
responsible for criminal investigation.
Sec. 176.140 Award term--Required Use of American Iron, Steel, and
Manufactured Goods--Section 1605 of the American Recovery and
Reinvestment Act of 2009.
When awarding Recovery Act funds for construction, alteration,
maintenance, or repair of a public building or public work that does not
involve iron, steel, and/or manufactured goods covered under
international agreements, the agency shall use the award term described
in the following paragraphs:
(a) Definitions. As used in this award term and condition--
(1) Manufactured good means a good brought to the construction site
for incorporation into the building or work that has been--
(i) Processed into a specific form and shape; or
(ii) Combined with other raw material to create a material that has
different properties than the properties of the individual raw
materials.
(2) Public building and public work means a public building of, and
a public work of, a governmental entity (the United States; the District
of Columbia; commonwealths, territories, and minor outlying islands of
the United States; State and local governments; and multi-State,
regional, or interstate entities which have governmental functions).
These buildings and works may include, without limitation, bridges,
dams, plants, highways, parkways, streets, subways, tunnels, sewers,
mains, power lines, pumping stations, heavy generators, railways,
airports, terminals, docks, piers, wharves, ways, lighthouses, buoys,
jetties, breakwaters, levees, and canals, and the construction,
alteration, maintenance, or repair of such buildings and works.
(3) Steel means an alloy that includes at least 50 percent iron,
between .02 and 2 percent carbon, and may include other elements.
(b) Domestic preference. (1) This award term and condition
implements Section 1605 of the American Recovery and Reinvestment Act of
2009 (Recovery Act) (Pub. L. 111-5), by requiring that all iron, steel,
and manufactured goods used in the project are produced in the United
States except as provided in paragraph (b)(3) and (b)(4) of this section
and condition.
(2) This requirement does not apply to the material listed by the
Federal Government as follows:
________________________________________________________________________
[Award official to list applicable excepted materials or indicate
``none'']
(3) The award official may add other iron, steel, and/or
manufactured goods to the list in paragraph (b)(2) of this
[[Page 29]]
section and condition if the Federal Government determines that--
(i) The cost of the domestic iron, steel, and/or manufactured goods
would be unreasonable. The cost of domestic iron, steel, or manufactured
goods used in the project is unreasonable when the cumulative cost of
such material will increase the cost of the overall project by more than
25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or
manufactured in the United States in sufficient and reasonably available
quantities and of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the
Recovery Act would be inconsistent with the public interest.
(c) Request for determination of inapplicability of Section 1605 of
the Recovery Act. (1)(i) Any recipient request to use foreign iron,
steel, and/or manufactured goods in accordance with paragraph (b)(3) of
this section shall include adequate information for Federal Government
evaluation of the request, including--
(A) A description of the foreign and domestic iron, steel, and/or
manufactured goods;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron,
steel, and/or manufactured goods cited in accordance with paragraph
(b)(3) of this section.
(ii) A request based on unreasonable cost shall include a reasonable
survey of the market and a completed cost comparison table in the format
in paragraph (d) of this section.
(iii) The cost of iron, steel, and/or manufactured goods material
shall include all delivery costs to the construction site and any
applicable duty.
(iv) Any recipient request for a determination submitted after
Recovery Act funds have been obligated for a project for construction,
alteration, maintenance, or repair shall explain why the recipient could
not reasonably foresee the need for such determination and could not
have requested the determination before the funds were obligated. If the
recipient does not submit a satisfactory explanation, the award official
need not make a determination.
(2) If the Federal Government determines after funds have been
obligated for a project for construction, alteration, maintenance, or
repair that an exception to section 1605 of the Recovery Act applies,
the award official will amend the award to allow use of the foreign
iron, steel, and/or relevant manufactured goods. When the basis for the
exception is nonavailability or public interest, the amended award shall
reflect adjustment of the award amount, redistribution of budgeted
funds, and/or other actions taken to cover costs associated with
acquiring or using the foreign iron, steel, and/or relevant manufactured
goods. When the basis for the exception is the unreasonable cost of the
domestic iron, steel, or manufactured goods, the award official shall
adjust the award amount or redistribute budgeted funds by at least the
differential established in 2 CFR 176.110(a).
(3) Unless the Federal Government determines that an exception to
section 1605 of the Recovery Act applies, use of foreign iron, steel,
and/or manufactured goods is noncompliant with section 1605 of the
American Recovery and Reinvestment Act.
(d) Data. To permit evaluation of requests under paragraph (b) of
this section based on unreasonable cost, the Recipient shall include the
following information and any applicable supporting data based on the
survey of suppliers:
Foreign and Domestic Items Cost Comparison
----------------------------------------------------------------------------------------------------------------
Unit of Cost
Description measure Quantity (dollars)*
----------------------------------------------------------------------------------------------------------------
Item 1:
Foreign steel, iron, or manufactured good................ ---------- ---------- ----------
Domestic steel, iron, or manufactured good............... ---------- ---------- ----------
[[Page 30]]
Item 2:
Foreign steel, iron, or manufactured good................ ---------- ---------- ----------
Domestic steel, iron, or manufactured good............... ---------- ---------- ----------
----------------------------------------------------------------------------------------------------------------
[List name, address, telephone number, email address, and contact for suppliers surveyed. Attach copy of
response; if oral, attach summary.]
[Include other applicable supporting information.]
[*Include all delivery costs to the construction site.]
Sec. 176.150 Notice of Required Use of American Iron, Steel, and
Manufactured Goods--Section 1605 of the American Recovery and
Reinvestment Act of 2009.
When requesting applications or proposals for Recovery Act programs
or activities that may involve construction, alteration, maintenance, or
repair of a public building or public work, and do not involve iron,
steel, and/or manufactured goods covered under international agreements,
the agency shall use the notice described in the following paragraphs in
their solicitations:
(a) Definitions. Manufactured good, public building and public work,
and steel, as used in this notice, are defined in the 2 CFR 176.140.
(b) Requests for determinations of inapplicability. A prospective
applicant requesting a determination regarding the inapplicability of
section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub.
L. 111-5) (Recovery Act) should submit the request to the award official
in time to allow a determination before submission of applications or
proposals. The prospective applicant shall include the information and
applicable supporting data required by paragraphs at 2 CFR 176.140(c)
and (d) in the request. If an applicant has not requested a
determination regarding the inapplicability of 1605 of the Recovery Act
before submitting its application or proposal, or has not received a
response to a previous request, the applicant shall include the
information and supporting data in the application or proposal.
(c) Evaluation of project proposals. If the Federal Government
determines that an exception based on unreasonable cost of domestic
iron, steel, and/or manufactured goods applies, the Federal Government
will evaluate a project requesting exception to the requirements of
section 1605 of the Recovery Act by adding to the estimated total cost
of the project 25 percent of the project cost, if foreign iron, steel,
or manufactured goods are used in the project based on unreasonable cost
of comparable manufactured domestic iron, steel, and/or manufactured
goods.
(d) Alternate project proposals. (1) When a project proposal
includes foreign iron, steel, and/or manufactured goods not listed by
the Federal Government at 2 CFR 176.140(b)(2), the applicant also may
submit an alternate proposal based on use of equivalent domestic iron,
steel, and/or manufactured goods.
(2) If an alternate proposal is submitted, the applicant shall
submit a separate cost comparison table prepared in accordance with 2
CFR 176.140(c) and (d) for the proposal that is based on the use of any
foreign iron, steel, and/or manufactured goods for which the Federal
Government has not yet determined an exception applies.
(3) If the Federal Government determines that a particular exception
requested in accordance with 2 CFR 176.140(b) does not apply, the
Federal Government will evaluate only those proposals based on use of
the equivalent domestic iron, steel, and/or manufactured goods, and the
applicant shall be required to furnish such domestic items.
Sec. 176.160 Award term--Required Use of American Iron, Steel, and
Manufactured Goods (covered under International Agreements)--Section
1605 of the American Recovery and Reinvestment Act of 2009.
When awarding Recovery Act funds for construction, alteration,
maintenance, or repair of a public building or public work that involves
iron, steel,
[[Page 31]]
and/or manufactured goods materials covered under international
agreements, the agency shall use the award term described in the
following paragraphs:
(a) Definitions. As used in this award term and condition--
Designated country--(1) A World Trade Organization Government
Procurement Agreement country (Aruba, Austria, Belgium, Bulgaria,
Canada, Chinese Taipei (Taiwan), Cyprus, Czech Republic, Denmark,
Estonia, Finland, France, Germany, Greece, Hong Kong, Hungary, Iceland,
Ireland, Israel, Italy, Japan, Korea (Republic of), Latvia,
Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway,
Poland, Portugal, Romania, Singapore, Slovak Republic, Slovenia, Spain,
Sweden, Switzerland, and United Kingdom;
(2) A Free Trade Agreement (FTA) country (Australia, Bahrain,
Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala,
Honduras, Israel, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore);
(3) A United States-European Communities Exchange of Letters (May
15, 1995) country: Austria, Belgium, Bulgaria, Cyprus, Czech Republic,
Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland,
Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland,
Portugal, Romania, Slovak Republic, Slovenia, Spain, Sweden, and United
Kingdom; or
(4) An Agreement between Canada and the United States of America on
Government Procurement country (Canada).
Designated country iron, steel, and/or manufactured goods--(1) Is
wholly the growth, product, or manufacture of a designated country; or
(2) In the case of a manufactured good that consist in whole or in
part of materials from another country, has been substantially
transformed in a designated country into a new and different
manufactured good distinct from the materials from which it was
transformed.
Domestic iron, steel, and/or manufactured good--(1) Is wholly the
growth, product, or manufacture of the United States; or
(2) In the case of a manufactured good that consists in whole or in
part of materials from another country, has been substantially
transformed in the United States into a new and different manufactured
good distinct from the materials from which it was transformed. There is
no requirement with regard to the origin of components or subcomponents
in manufactured goods or products, as long as the manufacture of the
goods occurs in the United States.
Foreign iron, steel, and/or manufactured good means iron, steel and/
or manufactured good that is not domestic or designated country iron,
steel, and/or manufactured good.
Manufactured good means a good brought to the construction site for
incorporation into the building or work that has been--
(1) Processed into a specific form and shape; or
(2) Combined with other raw material to create a material that has
different properties than the properties of the individual raw
materials.
Public building and public work means a public building of, and a
public work of, a governmental entity (the United States; the District
of Columbia; commonwealths, territories, and minor outlying islands of
the United States; State and local governments; and multi-State,
regional, or interstate entities which have governmental functions).
These buildings and works may include, without limitation, bridges,
dams, plants, highways, parkways, streets, subways, tunnels, sewers,
mains, power lines, pumping stations, heavy generators, railways,
airports, terminals, docks, piers, wharves, ways, lighthouses, buoys,
jetties, breakwaters, levees, and canals, and the construction,
alteration, maintenance, or repair of such buildings and works.
Steel means an alloy that includes at least 50 percent iron, between
.02 and 2 percent carbon, and may include other elements.
(b) Iron, steel, and manufactured goods. (1) The award term and
condition described in this section implements--
(i) Section 1605(a) of the American Recovery and Reinvestment Act of
2009 (Pub. L. 111-5) (Recovery Act), by requiring that all iron, steel,
and manufactured goods used in the project are produced in the United
States; and
[[Page 32]]
(ii) Section 1605(d), which requires application of the Buy American
requirement in a manner consistent with U.S. obligations under
international agreements. The restrictions of section 1605 of the
Recovery Act do not apply to designated country iron, steel, and/or
manufactured goods. The Buy American requirement in section 1605 shall
not be applied where the iron, steel or manufactured goods used in the
project are from a Party to an international agreement that obligates
the recipient to treat the goods and services of that Party the same as
domestic goods and services. As of January 1, 2010, this obligation
shall only apply to projects with an estimated value of $7,804,000 or
more.
(2) The recipient shall use only domestic or designated country
iron, steel, and manufactured goods in performing the work funded in
whole or part with this award, except as provided in paragraphs (b)(3)
and (b)(4) of this section.
(3) The requirement in paragraph (b)(2) of this section does not
apply to the iron, steel, and manufactured goods listed by the Federal
Government as follows:
________________________________________________________________________
[Award official to list applicable excepted materials or indicate
``none'']
(4) The award official may add other iron, steel, and manufactured
goods to the list in paragraph (b)(3) of this section if the Federal
Government determines that--
(i) The cost of domestic iron, steel, and/or manufactured goods
would be unreasonable. The cost of domestic iron, steel, and/or
manufactured goods used in the project is unreasonable when the
cumulative cost of such material will increase the overall cost of the
project by more than 25 percent;
(ii) The iron, steel, and/or manufactured good is not produced, or
manufactured in the United States in sufficient and reasonably available
commercial quantities of a satisfactory quality; or
(iii) The application of the restriction of section 1605 of the
Recovery Act would be inconsistent with the public interest.
(c) Request for determination of inapplicability of section 1605 of
the Recovery Act or the Buy American Act. (1)(i) Any recipient request
to use foreign iron, steel, and/or manufactured goods in accordance with
paragraph (b)(4) of this section shall include adequate information for
Federal Government evaluation of the request, including--
(A) A description of the foreign and domestic iron, steel, and/or
manufactured goods;
(B) Unit of measure;
(C) Quantity;
(D) Cost;
(E) Time of delivery or availability;
(F) Location of the project;
(G) Name and address of the proposed supplier; and
(H) A detailed justification of the reason for use of foreign iron,
steel, and/or manufactured goods cited in accordance with paragraph
(b)(4) of this section.
(ii) A request based on unreasonable cost shall include a reasonable
survey of the market and a completed cost comparison table in the format
in paragraph (d) of this section.
(iii) The cost of iron, steel, or manufactured goods shall include
all delivery costs to the construction site and any applicable duty.
(iv) Any recipient request for a determination submitted after
Recovery Act funds have been obligated for a project for construction,
alteration, maintenance, or repair shall explain why the recipient could
not reasonably foresee the need for such determination and could not
have requested the determination before the funds were obligated. If the
recipient does not submit a satisfactory explanation, the award official
need not make a determination.
(2) If the Federal Government determines after funds have been
obligated for a project for construction, alteration, maintenance, or
repair that an exception to section 1605 of the Recovery Act applies,
the award official will amend the award to allow use of the foreign
iron, steel, and/or relevant manufactured goods. When the basis for the
exception is nonavailability or public interest, the amended award shall
reflect adjustment of the award amount, redistribution of budgeted
[[Page 33]]
funds, and/or other appropriate actions taken to cover costs associated
with acquiring or using the foreign iron, steel, and/or relevant
manufactured goods. When the basis for the exception is the unreasonable
cost of the domestic iron, steel, or manufactured goods, the award
official shall adjust the award amount or redistribute budgeted funds,
as appropriate, by at least the differential established in 2 CFR
176.110(a).
(3) Unless the Federal Government determines that an exception to
section 1605 of the Recovery Act applies, use of foreign iron, steel,
and/or manufactured goods other than designated country iron, steel,
and/or manufactured goods is noncompliant with the applicable Act.
(d) Data. To permit evaluation of requests under paragraph (b) of
this section based on unreasonable cost, the applicant shall include the
following information and any applicable supporting data based on the
survey of suppliers:
Foreign and Domestic Items Cost Comparison
------------------------------------------------------------------------
Unit of Cost
Description measure Quantity (dollars)*
------------------------------------------------------------------------
Item 1:
Foreign steel, iron, or ---------- ---------- ----------
manufactured good........
Domestic steel, iron, or ---------- ---------- ----------
manufactured good........
Item 2:
Foreign steel, iron, or ---------- ---------- ----------
manufactured good........
Domestic steel, iron, or ---------- ---------- ----------
manufactured good........
------------------------------------------------------------------------
[List name, address, telephone number, email address, and contact for
suppliers surveyed. Attach copy of response; if oral, attach summary.]
[Include other applicable supporting information.]
[*Include all delivery costs to the construction site.]
[74 FR 18450, Apr. 23, 2009, as amended at 75 FR 14323, Mar. 25, 2010]
Sec. 176.170 Notice of Required Use of American Iron, Steel, and
Manufactured Goods (covered under International Agreements)--Section
1605 of the American Recovery and Reinvestment Act of 2009.
When requesting applications or proposals for Recovery Act programs
or activities that may involve construction, alteration, maintenance, or
repair of a public building or public work, and involve iron, steel,
and/or manufactured goods covered under international agreements, the
agency shall use the notice described in the following paragraphs in the
solicitation:
(a) Definitions. Designated country iron, steel, and/or manufactured
goods, foreign iron, steel, and/or manufactured good, manufactured good,
public building and public work, and steel, as used in this provision,
are defined in 2 CFR 176.160(a).
(b) Requests for determinations of inapplicability. A prospective
applicant requesting a determination regarding the inapplicability of
section 1605 of the American Recovery and Reinvestment Act of 2009 (Pub.
L. 111-5) (Recovery Act) should submit the request to the award official
in time to allow a determination before submission of applications or
proposals. The prospective applicant shall include the information and
applicable supporting data required by 2 CFR 176.160 (c) and (d) in the
request. If an applicant has not requested a determination regarding the
inapplicability of section 1605 of the Recovery Act before submitting
its application or proposal, or has not received a response to a
previous request, the applicant shall include the information and
supporting data in the application or proposal.
(c) Evaluation of project proposals. If the Federal Government
determines that an exception based on unreasonable cost of domestic
iron, steel, and/or manufactured goods applies, the Federal Government
will evaluate a project requesting exception to the requirements of
section 1605 of the Recovery Act by adding to the estimated total cost
of the project 25 percent of the project cost if foreign iron, steel, or
manufactured goods are used based on
[[Page 34]]
unreasonable cost of comparable domestic iron, steel, or manufactured
goods.
(d) Alternate project proposals. (1) When a project proposal
includes foreign iron, steel, and/or manufactured goods, other than
designated country iron, steel, and/or manufactured goods, that are not
listed by the Federal Government in this Buy American notice in the
request for applications or proposals, the applicant may submit an
alternate proposal based on use of equivalent domestic or designated
country iron, steel, and/or manufactured goods.
(2) If an alternate proposal is submitted, the applicant shall
submit a separate cost comparison table prepared in accordance with
paragraphs 2 CFR 176.160(c) and (d) for the proposal that is based on
the use of any foreign iron, steel, and/or manufactured goods for which
the Federal Government has not yet determined an exception applies.
(3) If the Federal Government determines that a particular exception
requested in accordance with 2 CFR 176.160(b) does not apply, the
Federal Government will evaluate only those proposals based on use of
the equivalent domestic or designated country iron, steel, and/or
manufactured goods, and the applicant shall be required to furnish such
domestic or designated country items.
Sec. Appendix to subpart B of 2 CFR Part 176--U.S. States, Other Sub-
Federal Entities, and Other Entities Subject to U.S. Obligations Under
International Agreements (as of February 16, 2010)
----------------------------------------------------------------------------------------------------------------
Relevant international
States Entities covered Exclusions agreements
----------------------------------------------------------------------------------------------------------------
Arizona.............................. Executive branch ....................... --WTO GPA.
agencies.
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Arkansas............................. Executive branch Construction services.. --WTO GPA.
agencies, including --DR-CAFTA.
universities but --U.S.-Australia FTA.
excluding the Office --U.S.-Chile FTA.
of Fish and Game.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
California........................... Executive branch ....................... --WTO GPA.
agencies.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Colorado............................. Executive branch ....................... --WTO GPA.
agencies.
--DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Connecticut.......................... --Department of ....................... --WTO GPA.
Administrative --DR-CAFTA.
Services --U.S.-Australia FTA.
--Department of --U.S.-Chile FTA.
Transportation.. --U.S.-Morocco FTA.
--Department of Public --U.S.-Singapore FTA.
Works..
--Constituent Units of
Higher Education.
Delaware............................. --Administrative Construction-grade --WTO GPA.
Services (Central steel (including --DR-CAFTA (except
Procurement Agency). requirements on Honduras).
--State Universities... subcontracts); motor --U.S.-Australia FTA.
--State Colleges....... vehicles; coal. --U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Florida.............................. Executive branch Construction-grade --WTO GPA.
agencies. steel (including --DR-CAFTA.
requirements on --U.S.-Australia FTA.
subcontracts); motor --U.S.-Chile FTA.
vehicles; coal.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
[[Page 35]]
Georgia.............................. --Department of Beef; compost; mulch... --U.S.-Australia FTA.
Administrative
Services.
--Georgia Technology
Authority.
Hawaii............................... Department of Software developed in --WTO GPA.
Accounting and General the State; --DR-CAFTA (except
Services. construction. Honduras).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Idaho................................ Central Procurement ....................... --WTO GPA.
Agency (including all --DR-CAFTA (except
colleges and Honduras).
universities subject --U.S.-Australia FTA.
to central purchasing --U.S.-Chile FTA.
oversight).
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Illinois............................. --Department of Central Construction-grade --WTO GPA.
Management Services. steel (including --U.S.-Australia FTA.
requirements on --U.S.-Chile FTA.
subcontracts); motor
vehicles; coal.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
--U.S.-EC.
Exchange of Letters
(applies to EC Member
States for procurement
not covered by WTO GPA
and only where the
State considers out-of-
State suppliers).
Iowa................................. --Department of General Construction-grade --WTO GPA.
Services steel (including --U.S.-Chile FTA.
--Department of requirements on --U.S.-Singapore FTA.
Transportation.. subcontracts); motor
--Board of Regents' vehicles; coal.
Institutions
(universities).
Kansas............................... Executive branch Construction services; --WTO GPA.
agencies. automobiles; aircraft. --U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Kentucky............................. Division of Purchases, Construction projects.. --WTO GPA.
Finance and --DR-CAFTA.
Administration Cabinet. --U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Louisiana............................ Executive branch ....................... --WTO GPA.
agencies.
--DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Maine................................ --Department of Construction-grade --WTO GPA.
Administrative and steel (including --U.S.-Australia FTA.
Financial Services requirements on --U.S.-Chile FTA.
--Bureau of General subcontracts); motor --U.S.-Singapore FTA.
Services (covering vehicles; coal.
State government
agencies and school
construction).
-- Department of
Transportation..
[[Page 36]]
Maryland............................. --Office of the Construction-grade --WTO GPA.
Treasury steel (including --DR-CAFTA.
--Department of the requirements on --U.S.-Australia FTA.
Environment.. subcontracts); motor --U.S.-Chile FTA.
--Department of General vehicles; coal. --U.S.-Morocco FTA.
Services.. --U.S.-Singapore FTA.
--Department of Housing
and Community
Development..
--Department of Human
Resources..
--Department of
Licensing and
Regulation..
--Department of Natural
Resources..
--Department of Public
Safety and
Correctional Services..
--Department of
Personnel..
--Department of
Transportation..
Massachusetts........................ --Executive Office for ....................... --WTO GPA.
Administration and --U.S.-Chile FTA.
Finance.
--Executive Office of --U.S.-Singapore FTA.
Communities and
Development.
--Executive Office of
Consumer Affairs.
--Executive Office of
Economic Affairs.
--Executive Office of
Education.
--Executive Office of
Elder Affairs.
--Executive Office of
Environmental Affairs.
--Executive Office of
Health and Human
Service.
--Executive Office of
Labor.
--Executive Office of
Public Safety.
--Executive Office of
Transportation and
Construction.
Michigan............................. Department of Construction-grade --WTO GPA.
Management and Budget. steel (including --U.S.-Australia FTA.
requirements on --U.S.-Chile FTA.
subcontracts); motor --U.S.-Singapore FTA.
vehicles; coal.
Minnesota............................ Executive branch ....................... --WTO GPA.
agencies.
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Mississippi.......................... Department of Finance Services............... --WTO GPA.
and Administration. --DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Missouri............................. --Office of ....................... --WTO GPA.
Administration.
--Division of --U.S.-Chile FTA.
Purchasing and --U.S.-Singapore FTA.
Materials Management.
Montana.............................. Executive branch Goods.................. --WTO GPA.
agencies.
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Nebraska............................. Central Procurement ....................... --WTO GPA.
Agency.
--DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
New Hampshire........................ Central Procurement Construction-grade --WTO GPA.
Agency. steel (including --DR-CAFTA.
requirements on --U.S.-Australia FTA.
subcontracts), motor --U.S.-Chile FTA.
vehicles; coal. --U.S.-Morocco FTA.
--U.S.-Singapore FTA.
[[Page 37]]
New York............................. --State agencies Construction-grade --WTO GPA.
--State university steel (including --DR-CAFTA.
system.. requirements on --U.S.-Australia FTA.
--Public authorities subcontracts); motor --U.S.-Chile FTA.
and public benefit vehicles; coal; --U.S.-Morocco FTA.
corporations, with the transit cars, buses --U.S.-Peru TPA.
exception of those and related equipment. --U.S.-Singapore FTA.
entities with multi-
State mandates..
North Dakota......................... ....................... ....................... --U.S.-EC Exchange of
Letters (applies to EC
Member States and only
where the State
considers out-of-State
suppliers).
Oklahoma............................. Department of Central Construction services; --WTO GPA.
Services and all State construction-grade --U.S.-Australia FTA.
agencies and steel (including --U.S.-Chile FTA.
departments subject to requirements on --U.S.-Peru TPA.
the Oklahoma Central subcontracts); motor --U.S.-Singapore FTA.
Purchasing Act. vehicles; coal.
Oregon............................... Department of ....................... --WTO GPA.
Administrative --DR-CAFTA (except
Services. Honduras).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Pennsylvania......................... Executive branch Construction-grade --WTO GPA.
agencies, including: steel (including --U.S.-Australia FTA.
--Governor's Office.... requirements on --U.S.-Chile FTA.
--Department of the subcontracts); motor --U.S.-Singapore FTA.
Auditor General.. vehicles; coal.
--Treasury Department..
--Department of
Agriculture..
--Department of Banking
--Pennsylvania
Securities Commission.
--Department of Health.
--Department of
Transportation.
--Insurance Department.
--Department of Aging..
--Department of
Correction.
--Department of Labor
and Industry.
--Department of
Military Affairs.
--Office of Attorney
General.
--Department of General
Services.
--Department of
Education.
--Public Utility
Commission.
--Department of Revenue
--Department of State..
--Pennsylvania State
Police.
--Department of Public
Welfare.
--Fish Commission......
--Game Commission......
--Department of
Commerce.
--Board of Probation
and Parole.
--Liquor Control Board.
--Milk Marketing Board.
--Lieutenant Governor's
Office.
--Department of
Community Affairs.
--Pennsylvania
Historical and Museum
Commission.
--Pennsylvania
Emergency Management
Agency.
--State Civil Service
Commission.
--Pennsylvania Public
Television Network.
[[Page 38]]
--Department of
Environmental
Resources.
--State Tax
Equalization Board.
--Department of Public
Welfare.
--State Employees'
Retirement System.
--Pennsylvania
Municipal Retirement
Board.
--Public School
Employees' Retirement
System.
--Pennsylvania Crime
Commission.
--Executive Offices....
Rhode Island......................... Executive branch Boats, automobiles, --WTO GPA.
agencies. buses and related --DR-CAFTA (except
equipment. Honduras).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
South Dakota......................... Central Procuring Beef................... --WTO GPA.
Agency (including --DR-CAFTA.
universities and penal --U.S.-Australia FTA.
institutions).
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Tennessee............................ Executive branch Services; construction. --WTO GPA-U.S.-
agencies. Australia FTA.
--U.S.-Chile FTA.
--U.S.-Singapore FTA.
Texas................................ Texas Building and ....................... --WTO GPA.
Procurement Commission. --DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Utah................................. Executive branch ....................... --WTO GPA.
agencies. --DR-CAFTA (except
Honduras).
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Vermont.............................. Executive branch ....................... --WTO GPA.
agencies. --DR-CAFTA.
--U.S.-Australia FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Singapore FTA.
Washington........................... Executive branch Fuel; paper products; --WTO GPA.
agencies, including: boats; ships; and --DR-CAFTA.
--General vessels. --U.S.-Australia FTA.
Administration.. --U.S.-Chile FTA.
--Department of --U.S.-Morocco FTA.
Transportation.. --U.S.-Singapore FTA.
--State Universities...
West Virginia........................ ....................... ....................... --U.S.-EC Exchange of
Letters (applies to EC
Member States and only
where the State
considers out-of-State
suppliers).
[[Page 39]]
Wisconsin............................ Executive branch ....................... --WTO GPA.
agencies, including: --U.S.-Chile FTA.
--Department of --U.S.-Singapore FTA.
Administration..
--State Correctional
Institutions..
--Department of
Development..
--Educational
Communications Board..
--Department of
Employment Relations..
--State Historical
Society..
--Department of Health
and Social Services..
--Insurance
Commissioner..
--Department of
Justice..
--Lottery Board........
--Department of Natural
Resources..
--Administration for
Public Instruction..
--Racing Board.........
--Department of
Revenue..
--State Fair Park
Board..
--Department of
Transportation..
--State University
System..
Wyoming.............................. --Procurement Services Construction-grade --WTO GPA.
Division steel (including --DR-CAFTA.
--Wyoming Department of requirements on --U.S.-Australia FTA.
Transportation.. subcontracts); motor --U.S.-Chile FTA.
--University of vehicles; coal. --U.S.-Morocco FTA.
Wyoming.. --U.S.-Singapore FTA.
----------------------------------------------------------------------------------------------------------------
Other sub-federal entities Entities covered Exclusions Relevant international
agreements
----------------------------------------------------------------------------------------------------------------
Puerto Rico.......................... --Department of State Construction services.. --DR-CAFTA.
--Department of --U.S.-Peru TPA.
Justice..
--Department of the --Department of
Treasury. Economic Development
....................... and Commerce.
--Department of Labor
and Human Resources.
--Department of Natural
and Environmental
Resources.
--Department of
Consumer Affairs.
--Department of Sports
and Recreation.
Port Authority of New York and New ....................... Restrictions attached --WTO GPA (except
Jersey. to Federal funds for Canada).
airport projects; --U.S.-Chile FTA.
maintenance, repair --U.S.-Singapore FTA.
and operating
materials and supplies.
Port of Baltimore.................... ....................... Restrictions attached --WTO GPA (except
to Federal funds for Canada).
airport projects. --U.S.-Chile FTA.
--U.S.-Singapore FTA.
New York Power Authority............. ....................... Restrictions attached --WTO GPA (except
to Federal funds for Canada).
airport projects; --U.S.-Chile FTA.
conditions specified --U.S.-Singapore FTA.
for the State of New
York
Massachusetts Port Authority......... ....................... ....................... U.S.-EC Exchange of
Letters (applies to EC
Member States and only
where the Port
Authority considers
out-of-State
suppliers).
[[Page 40]]
Boston, Chicago, Dallas, Detroit, ....................... ....................... U.S.-EC Exchange of
Indianapolis, Nashville, and San Letters (only applies
Antonio. to EC Member States
and where the city
considers out-of-city
suppliers).
----------------------------------------------------------------------------------------------------------------
Other entities Entities covered Exclusions Relevant international
agreements
----------------------------------------------------------------------------------------------------------------
Rural Utilities Service (waiver of Any recipient.......... ....................... --WTO GPA.
Buy American restriction on --DR-CAFTA.
financing for all power generation --NAFTA.
projects). --U.S.-Australia FTA.
--U.S.-Bahrain FTA.
--U.S.-Chile FTA.
--U.S.-Morocco FTA.
--U.S.-Oman FTA.
--U.S.-Peru TPA.
--U.S.-Singapore FTA.
Rural Utilities Service (waiver of Any recipient.......... ....................... --NAFTA.
Buy American restriction on --U.S.-Israel FTA.
financing for telecommunications
projects).
U.S. Department of Agriculture, Rural Any recipient.......... ....................... U.S.-Canada Agreement.
Utilities Services, Water and Waste
Disposal Programs (exclusion of
Canadian iron, steel and
manufactured products from domestic
purchasing restriction in Section
1605 of American Recovery and
Reinvestment Act of 2009).
U.S. Department of Agriculture, Rural Any recipient.......... ....................... U.S.-Canada Agreement.
Housing Service, Community
Facilities Program (exclusion of
Canadian iron, steel and
manufactured products from domestic
purchasing restriction in Section
1605 of American Recovery and
Reinvestment Act of 2009).
U.S. Department of Energy, Office of Any recipient.......... ....................... U.S.-Canada Agreement.
Energy Efficiency and Renewable
Energy, Energy Efficiency and
Conservation Block Grants (exclusion
of Canadian iron, steel and
manufactured products from domestic
purchasing restriction in Section
1605 of American Recovery and
Reinvestment Act of 2009).
U.S. Department of Energy, Office of Any recipient.......... ....................... U.S.-Canada Agreement.
Energy Efficiency and Renewable
Energy, State Energy Program
(exclusion of Canadian iron, steel
and manufactured products from
domestic purchasing restriction in
Section 1605 of American Recovery
and Reinvestment Act of 2009 (ARRA).
[[Page 41]]
U.S. Department of Housing and Urban Any recipient.......... ....................... U.S.-Canada Agreement.
Development, Office of Community
Planning and Development, Community
Development Block Grants Recovery
(CDBG-R) (exclusion of Canadian
iron, steel and manufactured
products from domestic purchasing
restriction in Section 1605 of
American Recovery and Reinvestment
Act of 2009).
U.S. Department of Housing and Urban Any recipient.......... ....................... U.S.-Canada Agreement.
Development, Office of Public and
Indian Housing, Public Housing
Capital Fund (exclusion of Canadian
iron, steel and manufactured
products from domestic purchasing
restriction in Section 1605 of
American Recovery and Reinvestment
Act of 2009).
U.S. Environmental Protection Clean Any recipient.......... ....................... U.S.-Canada Agreement.
Water and Drinking Water State
Revolving Funds Agency for projects
funded by reallocated ARRA funds
where the contracts are signed after
February 17, 2010 (exclusion of
Canadian iron, steel and
manufactured products from domestic
purchasing restriction in Section
1605 of American Recovery and
Reinvestment Act of 2009).
----------------------------------------------------------------------------------------------------------------
General Exceptions: The following restrictions and exceptions are
excluded from U.S. obligations under international agreements:
1. The restrictions attached to Federal funds to States for mass
transit and highway projects.
2. Dredging.
The World Trade Organization Government Procurement Agreement (WTO
GPA) Parties: Aruba, Austria, Belgium, Bulgaria, Canada, Chinese Taipei
(Taiwan), Cyprus, Czech Republic, Denmark, Estonia, Finland, France,
Germany, Greece, Hong Kong, Hungary, Iceland, Ireland, Israel, Italy,
Japan, Korea (Republic of), Latvia, Liechtenstein, Lithuania,
Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania,
Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, and
United Kingdom.
The Free Trade Agreements and the respective Parties to the
agreements are:
(1) Dominican Republic-Central America-United States Free Trade
Agreement (DR-CAFTA): Costa Rica, Dominican Republic, El Salvador,
Guatemala, Honduras, and Nicaragua;
(2) North American Free Trade Agreement (NAFTA): Canada and Mexico;
(3) United States-Australia Free Trade Agreement (U.S.-Australia
FTA);
(4) United States-Bahrain Free Trade Agreement (U.S.-Bahrain FTA);
(5) United States-Chile Free Trade Agreement (U.S.-Chile FTA);
(6) United States-Israel Free Trade Agreement (U.S.-Israel FTA);
(7) United States-Morocco Free Trade Agreement (U.S.-Morocco FTA);
(8) United States-Oman Free Trade Agreement (U.S.-Oman FTA);
(9) United States-Peru Trade Promotion Agreement (U.S.-Peru TPA);
and
(10) United States-Singapore Free Trade Agreement (U.S.-Singapore
FTA).
United States-European Communities Exchange of Letters (May 30,
1995) (U.S.-EC Exchange of Letters) applies to EC Member States:
Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia,
Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania,
Slovak Republic, Slovenia, Spain, Sweden, and United Kingdom.
Agreement between the Government of Canada and the Government of the
United States of
[[Page 42]]
America on Government Procurement (Feb. 10, 2010) (U.S.-Canada
Agreement): Applies only to Canada.
[75 FR 14324, Mar. 25, 2010]
Subpart C_Wage Rate Requirements Under Section 1606 of the American
Recovery and Reinvestment Act of 2009
Sec. 176.180 Procedure.
The award official shall insert the standard award term in this
subpart in all awards funded in whole or in part with Recovery Act
funds.
Sec. 176.190 Award term--Wage rate requirements under Section 1606 of
the Recovery Act.
When issuing announcements or requesting applications for Recovery
Act programs or activities that may involve construction, alteration,
maintenance, or repair the agency shall use the award term described in
the following paragraphs:
(a) Section 1606 of the Recovery Act requires that all laborers and
mechanics employed by contractors and subcontractors on projects funded
directly by or assisted in whole or in part by and through the Federal
Government pursuant to the Recovery Act shall be paid wages at rates not
less than those prevailing on projects of a character similar in the
locality as determined by the Secretary of Labor in accordance with
subchapter IV of chapter 31 of title 40, United States Code.
Pursuant to Reorganization Plan No. 14 and the Copeland Act, 40
U.S.C. 3145, the Department of Labor has issued regulations at 29 CFR
parts 1, 3, and 5 to implement the Davis-Bacon and related Acts.
Regulations in 29 CFR 5.5 instruct agencies concerning application of
the standard Davis-Bacon contract clauses set forth in that section.
Federal agencies providing grants, cooperative agreements, and loans
under the Recovery Act shall ensure that the standard Davis-Bacon
contract clauses found in 29 CFR 5.5(a) are incorporated in any
resultant covered contracts that are in excess of $2,000 for
construction, alteration or repair (including painting and decorating).
(b) For additional guidance on the wage rate requirements of section
1606, contact your awarding agency. Recipients of grants, cooperative
agreements and loans should direct their initial inquiries concerning
the application of Davis-Bacon requirements to a particular federally
assisted project to the Federal agency funding the project. The
Secretary of Labor retains final coverage authority under Reorganization
Plan Number 14.
Subpart D_Single Audit Information for Recipients of Recovery Act Funds
Sec. 176.200 Procedure.
The award official shall insert the standard award term in this
subpart in all awards funded in whole or in part with Recovery Act
funds.
Sec. 176.210 Award term--Recovery Act transactions listed in Schedule
of Expenditures of Federal Awards and Recipient Responsibilities for
Informing Subrecipients.
The award term described in this section shall be used by agencies
to clarify recipient responsibilities regarding tracking and documenting
Recovery Act expenditures:
(a) To maximize the transparency and accountability of funds
authorized under the American Recovery and Reinvestment Act of 2009
(Pub. L. 111-5) (Recovery Act) as required by Congress and in accordance
with 2 CFR 215.21 ``Uniform Administrative Requirements for Grants and
Agreements'' and OMB Circular A-102 Common Rules provisions, recipients
agree to maintain records that identify adequately the source and
application of Recovery Act funds. OMB Circular A-102 is available at
http://www.whitehouse.gov/omb/circulars/a102/a102.html.
(b) For recipients covered by the Single Audit Act Amendments of
1996 and OMB Circular A-133, ``Audits of States, Local Governments, and
Non-Profit Organizations,'' recipients agree to separately identify the
expenditures for Federal awards under the Recovery Act on the Schedule
of Expenditures of Federal Awards (SEFA) and the Data Collection Form
(SF-SAC) required by OMB Circular A-133. OMB Circular A-133 is available
at http://www.whitehouse.gov/omb/circulars/a133/
[[Page 43]]
a133.html. This shall be accomplished by identifying expenditures for
Federal awards made under the Recovery Act separately on the SEFA, and
as separate rows under Item 9 of Part III on the SF-SAC by CFDA number,
and inclusion of the prefix ``ARRA-'' in identifying the name of the
Federal program on the SEFA and as the first characters in Item 9d of
Part III on the SF-SAC.
(c) Recipients agree to separately identify to each subrecipient,
and document at the time of subaward and at the time of disbursement of
funds, the Federal award number, CFDA number, and amount of Recovery Act
funds. When a recipient awards Recovery Act funds for an existing
program, the information furnished to subrecipients shall distinguish
the subawards of incremental Recovery Act funds from regular subawards
under the existing program.
(d) Recipients agree to require their subrecipients to include on
their SEFA information to specifically identify Recovery Act funding
similar to the requirements for the recipient SEFA described above. This
information is needed to allow the recipient to properly monitor
subrecipient expenditure of ARRA funds as well as oversight by the
Federal awarding agencies, Offices of Inspector General and the
Government Accountability Office.
PARTS 177 179 [RESERVED]
PART 180_OMB GUIDELINES TO AGENCIES ON GOVERNMENTWIDE DEBARMENT AND
SUSPENSION (NONPROCUREMENT)--Table of Contents
Sec.
180.5 What does this part do?
180.10 How is this part organized?
180.15 To whom do these guidelines apply?
180.20 What must a Federal agency do to implement these guidelines?
180.25 What must a Federal agency address in its implementation of these
guidelines?
180.30 Where does a Federal agency implement these guidelines?
180.35 By when must a Federal agency implement these guidelines?
180.40 How are these guidelines maintained?
180.45 Do these guidelines cover persons who are disqualified, as well
as those who are excluded from nonprocurement transactions?
Subpart A_General
180.100 How are subparts A through I organized?
180.105 How is this part written?
180.110 Do terms in this part have special meanings?
180.115 What do subparts A through I of this part do?
180.120 Do subparts A through I of this part apply to me?
180.125 What is the purpose of the nonprocurement debarment and
suspension system?
180.130 How does an exclusion restrict a person's involvement in covered
transactions?
180.135 May a Federal agency grant an exception to let an excluded
person participate in a covered transaction?
180.140 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
180.145 Does an exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement
transactions?
180.150 Against whom may a Federal agency take an exclusion action?
180.155 How do I know if a person is excluded?
Subpart B_Covered Transactions
180.200 What is a covered transaction?
180.205 Why is it important to know if a particular transaction is a
covered transaction?
180.210 Which nonprocurement transactions are covered transactions?
180.215 Which nonprocurement transactions are not covered transactions?
180.220 Are any procurement contracts included as covered transactions?
180.225 How do I know if a transaction in which I may participate is a
covered transaction?
Subpart C_Responsibilities of Participants Regarding Transactions Doing
Business With Other Persons
180.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
180.305 May I enter into a covered transaction with an excluded or
disqualified person?
180.310 What must I do if a Federal agency excludes a person with whom I
am already doing business in a covered transaction?
[[Page 44]]
180.315 May I use the services of an excluded person as a principal
under a covered transaction?
180.320 Must I verify that principals of my covered transactions are
eligible to participate?
180.325 What happens if I do business with an excluded person in a
covered transaction?
180.330 What requirements must I pass down to persons at lower tiers
with whom I intend to do business?
Disclosing Information--Primary Tier Participants
180.335 What information must I provide before entering into a covered
transaction with a Federal agency?
180.340 If I disclose unfavorable information required under Sec.
180.335 will I be prevented from participating in the
transaction?
180.345 What happens if I fail to disclose information required under
Sec. 180.335?
180.350 What must I do if I learn of information required under Sec.
180.335 after entering into a covered transaction with a
Federal agency?
Disclosing Information--Lower Tier Participants
180.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that
participant?
180.360 What happens if I fail to disclose information required under
Sec. 180.355?
180.365 What must I do if I learn of information required under Sec.
180.355 after entering into a covered transaction with a
higher tier participant?
Subpart D_Responsibilities of Federal Agency Officials Regarding
Transactions
180.400 May I enter into a transaction with an excluded or disqualified
person?
180.405 May I enter into a covered transaction with a participant if a
principal of the transaction is excluded?
180.410 May I approve a participant's use of the services of an excluded
person?
180.415 What must I do if a Federal agency excludes the participant or a
principal after I enter into a covered transaction?
180.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
180.425 When do I check to see if a person is excluded or disqualified?
180.430 How do I check to see if a person is excluded or disqualified?
180.435 What must I require of a primary tier participant?
180.440 What action may I take if a primary tier participant knowingly
does business with an excluded or disqualified person?
180.445 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 180.335?
180.450 What may I do if a lower tier participant fails to disclose the
information required under Sec. 180.355 to the next higher
tier?
Subpart E_Excluded Parties List System
180.500 What is the purpose of the Excluded Parties List System (EPLS)?
180.505 Who uses the EPLS?
180.510 Who maintains the EPLS?
180.515 What specific information is in the EPLS?
180.520 Who places the information into the EPLS?
180.525 Whom do I ask if I have questions about a person in the EPLS?
180.530 Where can I find the EPLS?
Subpart F_General Principles Relating to Suspension and Debarment
Actions
180.600 How do suspension and debarment actions start?
180.605 How does suspension differ from debarment?
180.610 What procedures does a Federal agency use in suspension and
debarment actions?
180.615 How does a Federal agency notify a person of a suspension or
debarment action?
180.620 Do Federal agencies coordinate suspension and debarment actions?
180.625 What is the scope of a suspension or debarment?
180.630 May a Federal agency impute the conduct of one person to
another?
180.635 May a Federal agency settle a debarment or suspension action?
180.640 May a settlement include a voluntary exclusion?
180.645 Do other Federal agencies know if an agency agrees to a
voluntary exclusion?
Subpart G_Suspension
180.700 When may the suspending official issue a suspension?
180.705 What does the suspending official consider in issuing a
suspension?
180.710 When does a suspension take effect?
180.715 What notice does the suspending official give me if I am
suspended?
180.720 How may I contest a suspension?
180.725 How much time do I have to contest a suspension?
180.730 What information must I provide to the suspending official if I
contest the suspension?
180.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
[[Page 45]]
180.740 Are suspension proceedings formal?
180.745 How is fact-finding conducted?
180.750 What does the suspending official consider in deciding whether
to continue or terminate my suspension?
180.755 When will I know whether the suspension is continued or
terminated?
180.760 How long may my suspension last?
Subpart H_Debarment
180.800 What are the causes for debarment?
180.805 What notice does the debarring official give me if I am proposed
for debarment?
180.810 When does a debarment take effect?
180.815 How may I contest a proposed debarment?
180.820 How much time do I have to contest a proposed debarment?
180.825 What information must I provide to the debarring official if I
contest the proposed debarment?
180.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
180.835 Are debarment proceedings formal?
180.840 How is fact-finding conducted?
180.845 What does the debarring official consider in deciding whether to
debar me?
180.850 What is the standard of proof in a debarment action?
180.855 Who has the burden of proof in a debarment action?
180.860 What factors may influence the debarring official's decision?
180.865 How long may my debarment last?
180.870 When do I know if the debarring official debars me?
180.875 May I ask the debarring official to reconsider a decision to
debar me?
180.880 What factors may influence the debarring official during
reconsideration?
180.885 May the debarring official extend a debarment?
Subpart I_Definitions
180.900 Adequate evidence.
180.905 Affiliate.
180.910 Agent or representative.
180.915 Civil judgment.
180.920 Conviction.
180.925 Debarment.
180.930 Debarring official.
180.935 Disqualified.
180.940 Excluded or exclusion.
180.945 Excluded Parties List System (EPLS).
180.950 Federal agency.
180.955 Indictment.
180.960 Ineligible or ineligibility.
180.965 Legal proceedings.
180.970 Nonprocurement transaction.
180.975 Notice.
180.980 Participant.
180.985 Person.
180.990 Preponderance of the evidence.
180.995 Principal.
180.1000 Respondent.
180.1005 State.
180.1010 Suspending official.
180.1015 Suspension.
180.1020 Voluntary exclusion or voluntarily excluded.
Appendix to Part 180--Covered Transactions
Authority: Sec. 2455, Pub. L. 103-355, 108 Stat. 3327; E.O. 12549, 3
CFR, 1986 Comp., p.189; E.O. 12689, 3 CFR, 1989 Comp., p. 235.
Source: 70 FR 51865, Aug. 31, 2005, unless otherwise noted.
Sec. 180.5 What does this part do?
This part provides Office of Management and Budget (OMB) guidance
for Federal agencies on the governmentwide debarment and suspension
system for nonprocurement programs and activities.
Sec. 180.10 How is this part organized?
This part is organized in two segments.
(a) Sections 180.5 through 180.45 contain general policy direction
for Federal agencies' use of the standards in subparts A through I of
this part.
(b) Subparts A through I of this part contain uniform governmentwide
standards that Federal agencies are to use to specify--
(1) The types of transactions that are covered by the nonprocurement
debarment and suspension system;
(2) The effects of an exclusion under that nonprocurement system,
including reciprocal effects with the governmentwide debarment and
suspension system for procurement;
(3) The criteria and minimum due process to be used in
nonprocurement debarment and suspension actions; and
(4) Related policies and procedures to ensure the effectiveness of
those actions.
Sec. 180.15 To whom does the guidance apply?
The guidance provides OMB guidance only to Federal agencies.
Publication of the guidance in the CFR does not change its nature--it is
guidance and not regulation. Federal agencies' implementation of the
guidance governs the rights and responsibilities of other
[[Page 46]]
persons affected by the nonprocurement debarment and suspension system.
Sec. 180.20 What must a Federal agency do to implement these
guidelines?
As required by Section 3 of E.O. 12549, each Federal agency with
nonprocurement programs and activities covered by subparts A through I
of the guidance must issue regulations consistent with those subparts.
Sec. 180.25 What must a Federal agency address in its implementation
of the guidance?
Each Federal agency implementing regulation:
(a) Must establish policies and procedures for that agency's
nonprocurement debarment and suspension programs and activities that are
consistent with the guidance. When adopted by a Federal agency, the
provisions of the guidance has regulatory effect for that agency's
programs and activities.
(b) Must address some matters for which these guidelines give each
Federal agency some discretion. Specifically, the regulation must--
(1) Identify either the Federal agency head or the title of the
designated official who is authorized to grant exceptions under Sec.
180.135 to let an excluded person participate in a covered transaction.
(2) State whether the agency includes as covered transactions an
additional tier of contracts awarded under covered nonprocurement
transactions, as permitted under Sec. 180.220(c).
(3) Identify the method(s) an agency official may use, when entering
into a covered transaction with a primary tier participant, to
communicate to the participant the requirements described in Sec.
180.435. Examples of methods are an award term that requires compliance
as a condition of the award; an assurance of compliance obtained at time
of application; or a certification.
(4) State whether the Federal agency specifies a particular method
that participants must use to communicate compliance requirements to
lower-tier participants, as described in Sec. 180.330(a). If there is a
specified method, the regulation needs to require agency officials, when
entering into covered transactions with primary tier participants, to
communicate that requirement.
(c) May also, at the agency's option:
(1) Identify any specific types of transactions that the Federal
agency includes as ``nonprocurement transactions'' in addition to the
examples provided in Sec. 180.970.
(2) Identify any types of nonprocurement transactions that the
Federal agency exempts from coverage under these guidelines, as
authorized under Sec. 180.215(g)(2).
(3) Identify specific examples of types of individuals who would be
``principals'' under the Federal agency's nonprocurement programs and
transactions, in addition to the types of individuals described at Sec.
180.995.
(4) Specify the Federal agency's procedures, if any, by which a
respondent may appeal a suspension or debarment decision.
(5) Identify by title the officials designated by the Federal agency
head as debarring officials under Sec. 180.930 or suspending officials
under Sec. 180.1010.
(6) Include a subpart covering disqualifications, as authorized in
Sec. 180.45.
(7) Include any provisions authorized by OMB.
[70 FR 51865, Aug. 31, 2005, as amended at 71 FR 66432, Nov. 15, 2006]
Sec. 180.30 Where does a Federal agency implement these guidelines?
Each Federal agency that participates in the governmentwide
nonprocurement debarment and suspension system must issue a regulation
implementing these guidelines within its chapter in subtitle B of this
title of the Code of Federal Regulations.
Sec. 180.35 By when must a Federal agency implement these guidelines?
Federal agencies must submit proposed regulations to the OMB for
review within nine months of the issuance of these guidelines and issue
final regulations within eighteen months of these guidelines.
Sec. 180.40 How are these guidelines maintained?
The Interagency Committee on Debarment and Suspension established by
section 4 of E.O. 12549 recommends to
[[Page 47]]
the OMB any needed revisions to the guidelines in this part. The OMB
publishes proposed changes to the guidelines in the Federal Register for
public comment, considers comments with the help of the Interagency
Committee on Debarment and Suspension, and issues the final guidelines.
Sec. 180.45 Do these guidelines cover persons who are disqualified,
as well as those who are excluded from nonprocurement transactions?
A Federal agency may add a subpart covering disqualifications to its
regulation implementing these guidelines, but the guidelines in subparts
A through I of this part--
(a) Address disqualified persons only to--
(1) Provide for their inclusion in the EPLS; and
(2) State responsibilities of Federal agencies and participants to
check for disqualified persons before entering into covered
transactions.
(b) Do not specify the--
(1) Transactions for which a disqualified person is ineligible.
Those transactions vary on a case-by-case basis, because they depend on
the language of the specific statute, Executive order or regulation that
caused the disqualification;
(2) Entities to which a disqualification applies; or
(3) Process that a Federal agency uses to disqualify a person.
Unlike exclusion under subparts A through I of this part,
disqualification is frequently not a discretionary action that a Federal
agency takes, and may include special procedures.
Subpart A_General
Sec. 180.100 How are subparts A through I organized?
(a) Each subpart contains information related to a broad topic or
specific audience with special responsibilities, as shown in the
following table:
----------------------------------------------------------------------------------------------------------------
In subpart . . . You will find provisions related to . . .
----------------------------------------------------------------------------------------------------------------
A........................................... general information about Subparts A through I of this part.
B........................................... the types of transactions that are covered by the Governmentwide
nonprocurement suspension and debarment system.
C........................................... the responsibilities of persons who participate in covered
transactions.
D........................................... the responsibilities of Federal agency officials who are
authorized to enter into covered transactions.
E........................................... the responsibilities of Federal agencies for entering information
into the EPLS
F........................................... the general principles governing suspension, debarment, voluntary
exclusion and settlement.
G........................................... suspension actions.
H........................................... debarment actions.
I........................................... definitions of terms used in this part.
----------------------------------------------------------------------------------------------------------------
(b) The following table shows which subparts may be of special
interest to you, depending on who you are:
------------------------------------------------------------------------
If you are . . . See Subpart(s) . . .
------------------------------------------------------------------------
(1) a participant or principal in a A, B, C and I.
nonprocurement transaction.
(2) a respondent in a suspension A, B, F, G and I.
action.
(3) a respondent in a debarment A, B, F, H and I.
action.
(4) a suspending official.......... A, B, E, F, G and I.
(5) a debarring official........... A, B, D, F, H and I.
(6) an Federal agency official A, B, D, E and I.
authorized to enter into a covered
transaction.
------------------------------------------------------------------------
Sec. 180.105 How is this part written?
(a) This part uses a ``plain language'' format to make it easier for
the general public and business community to use. The section headings
and text, often in the form of questions and answers, must be read
together.
(b) Pronouns used within this part, such as ``I'' and ``you,''
change from subpart to subpart depending on the audience being
addressed.
(c) The ``Covered Transactions'' diagram in the appendix to this
part shows the levels or ``tiers'' at which a Federal agency may enforce
an exclusion.
[[Page 48]]
Sec. 180.110 Do terms in this part have special meanings?
This part uses terms throughout the text that have special meaning.
Those terms are defined in subpart I of this part. For example, three
important terms are--
(a) Exclusion or excluded, which refers only to discretionary
actions taken by a suspending or debarring official under Executive
Order 12549 and Executive Order 12689 or under the Federal Acquisition
Regulation (48 CFR part 9, subpart 9.4);
(b) Disqualification or disqualified, which refers to prohibitions
under specific statutes, executive orders (other than Executive Order
12549 and Executive Order 12689), or other authorities.
Disqualifications frequently are not subject to the discretion of a
Federal agency official, may have a different scope than exclusions, or
have special conditions that apply to the disqualification; and
(c) Ineligibility or ineligible, which generally refers to a person
who is either excluded or disqualified.
Sec. 180.115 What do Subparts A through I of this part do?
Subparts A through I of this part provide for reciprocal exclusion
of persons who have been excluded under the Federal Acquisition
Regulation, and provide for the consolidated listing of all persons who
are excluded, or disqualified by statute, executive order or other legal
authority.
Sec. 180.120 Do subparts A through I of this part apply to me?
Portions of subparts A through I of this part (see table at Sec.
180.100(b)) apply to you if you are a--
(a) Person who has been, is, or may reasonably be expected to be, a
participant or principal in a covered transaction;
(b) Respondent (a person against whom a Federal agency has initiated
a debarment or suspension action);
(c) Federal agency debarring or suspending official; or
(d) Federal agency official who is authorized to enter into covered
transactions with non-Federal parties.
Sec. 180.125 What is the purpose of the nonprocurement debarment and
suspension system?
(a) To protect the public interest, the Federal Government ensures
the integrity of Federal programs by conducting business only with
responsible persons.
(b) A Federal agency uses the nonprocurement debarment and
suspension system to exclude from Federal programs persons who are not
presently responsible.
(c) An exclusion is a serious action that a Federal agency may take
only to protect the public interest. A Federal agency may not exclude a
person or commodity for the purposes of punishment.
Sec. 180.130 How does an exclusion restrict a person's involvement in
covered transactions?
With the exceptions stated in Sec. Sec. 180.135, 315, and 420, a
person who is excluded by any Federal agency may not:
(a) Be a participant in a Federal agency transaction that is a
covered transaction; or
(b) Act as a principal of a person participating in one of those
covered transactions.
Sec. 180.135 May a Federal agency grant an exception to let an excluded
person participate in a covered transaction?
(a) A Federal agency head or designee may grant an exception
permitting an excluded person to participate in a particular covered
transaction. If the agency head or designee grants an exception, the
exception must be in writing and state the reason(s) for deviating from
the governmentwide policy in Executive Order 12549.
(b) An exception granted by one Federal agency for an excluded
person does not extend to the covered transactions of another Federal
agency.
Sec. 180.140 Does an exclusion under the nonprocurement system affect
a person's eligibility for Federal procurement contracts?
If any Federal agency excludes a person under Executive Order 12549
or Executive Order 12689, on or after August
[[Page 49]]
25, 1995, the excluded person is also ineligible for Federal procurement
transactions under the FAR. Therefore, an exclusion under this part has
reciprocal effect in Federal procurement transactions.
Sec. 180.145 Does an exclusion under the Federal procurement system
affect a person's eligibility to participate in nonprocurement
transactions?
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 Federal agencies' nonprocurement covered transactions. Therefore, an
exclusion under the FAR has reciprocal effect in Federal nonprocurement
transactions.
Sec. 180.150 Against whom may a Federal agency take an exclusion action?
Given a cause that justifies an exclusion under this part, a Federal
agency may exclude any person who has been, is, or may reasonably be
expected to be a participant or principal in a covered transaction.
Sec. 180.155 How do I know if a person is excluded?
Check the Governmentwide Excluded Parties List System (EPLS) to
determine whether a person is excluded. The General Services
Administration (GSA) maintains the EPLS and makes it available, as
detailed in Subpart E of this part. When a Federal agency takes an
action to exclude a person under the nonprocurement or procurement
debarment and suspension system, the agency enters the information about
the excluded person into the EPLS.
Subpart B_Covered Transactions
Sec. 180.200 What is a covered transaction?
A covered transaction is a nonprocurement or procurement transaction
that is subject 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 to this part); or
(b) A lower tier, between a participant in a covered transaction and
another person.
Sec. 180.205 Why is it important if a particular transaction is a
covered transaction?
The importance of whether a transaction is a covered transaction
depends upon who you are.
(a) As a participant in the transaction, you have the
responsibilities laid out in subpart C of this part. Those include
responsibilities to the person or Federal agency at the next higher tier
from whom you received the transaction, if any. They also include
responsibilities if you subsequently enter into other covered
transactions with persons at the next lower tier.
(b) As a Federal official who enters into a primary tier
transaction, you have the responsibilities laid out in subpart D of this
part.
(c) As an excluded person, you may not be a participant or principal
in the transaction unless--
(1) The person who entered into the transaction with you allows you
to continue your involvement in a transaction that predates your
exclusion, as permitted under Sec. 180.310 or Sec. 180.415; or
(2) A Federal agency official obtains an exception from the agency
head or designee to allow you to be involved in the transaction, as
permitted under Sec. 180.135.
Sec. 180.210 Which nonprocurement transactions are covered
transactions?
All nonprocurement transactions, as defined in Sec. 180.970, are
covered transactions unless listed in the exemptions under Sec.
180.215.
Sec. 180.215 Which nonprocurement transactions are not covered
transactions?
The following types of nonprocurement transactions are not covered
transactions:
(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 foreign
government; or
(4) Any other entity consisting wholly or partially of one or more
foreign
[[Page 50]]
governments or foreign governmental entities.
(b) A benefit 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). For example, if
a person receives social security benefits under the Supplemental
Security Income provisions of the Social Security Act, 42 U.S.C. 1301 et
seq., those benefits are not covered transactions and, therefore, are
not affected if the person is excluded.
(c) Federal employment.
(d) A transaction that a Federal agency needs to respond to a
national or agency-recognized emergency or disaster.
(e) A permit, license, certificate or similar instrument issued as a
means to regulate public health, safety or the environment, unless a
Federal agency specifically designates it to be a covered transaction.
(f) An incidental benefit that results from ordinary governmental
operations.
(g) Any other transaction if--
(1) The application of an exclusion to the transaction is prohibited
by law; or
(2) A Federal agency's regulation exempts it from coverage under
this part.
Sec. 180.220 Are any procurement contracts included as covered
transactions?
(a) Covered transactions under this part--
(1) Do not include any procurement contracts awarded directly by a
Federal agency; but
(2) Do include some procurement contracts awarded by non-Federal
participants in nonprocurement covered transactions.
(b) Specifically, a contract for goods or services is a covered
transaction if any of the following applies:
(1) The contract is awarded by a participant in a nonprocurement
transaction that is covered under Sec. 180.210, and the amount of the
contract is expected to equal or exceed $25,000.
(2) The contract requires the consent of an official of a Federal
agency. In that case, the contract, regardless of the amount, always is
a covered transaction, and it does not matter who awarded it. For
example, it could be a subcontract awarded by a contractor at a tier
below a nonprocurement transaction, as shown in the appendix to this
part.
(3) The contract is for Federally-required audit services.
(c) A subcontract also is a covered transaction if,--
(1) It is awarded by a participant in a procurement transaction
under a nonprocurement transaction of a Federal agency that extends the
coverage of paragraph (b)(1) of this section to additional tiers of
contracts (see the diagram in the appendix to this part showing that
optional lower tier coverage); and
(2) The value of the subcontract is expected to equal or exceed
$25,000.
[70 FR 51865, Aug. 31, 2005, as amended at 71 FR 66432, Nov. 15, 2006]
Sec. 180.225 How do I know if a transaction in which I may participate
is a covered transaction?
As a participant in a transaction, you will know that it is a
covered transaction because the Federal agency regulations governing the
transaction, the appropriate Federal agency official or participant at
the next higher tier who enters into the transaction with you, will tell
you that you must comply with applicable portions of this part.
Subpart C_Responsibilities of Participants Regarding Transactions Doing
Business With Other Persons
Sec. 180.300 What must I do before I enter into a covered transaction
with another person at the next lower tier?
When you enter into a covered transaction with another person at the
next lower tier, you must verify that the person with whom you intend to
do business is not excluded or disqualified. You do this by:
(a) Checking the EPLS; or
(b) Collecting a certification from that person; or
[[Page 51]]
(c) Adding a clause or condition to the covered transaction with
that person.
[70 FR 51865, Aug. 31, 2005, as amended at 71 FR 66432, Nov. 15, 2006]
Sec. 180.305 May I enter into a covered transaction with an excluded
or disqualified person?
(a) You as a participant may not enter into a covered transaction
with an excluded person, unless the Federal agency responsible for the
transaction grants an exception under Sec. 180.135.
(b) You may not enter into any transaction with a person who is
disqualified from that transaction, unless you have obtained an
exception under the disqualifying statute, Executive order, or
regulation.
Sec. 180.310 What must I do if a Federal agency excludes a person
with whom I am already doing business in a covered transaction?
(a) You as a participant may continue covered transactions with an
excluded person if the transactions were in existence when the agency
excluded the person. However, you are not required to continue the
transactions, and you may consider termination. You should make a
decision about whether to terminate and the type of termination action,
if any, only after a thorough review to ensure that the action is proper
and appropriate.
(b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, unless the Federal
agency responsible for the transaction grants an exception under Sec.
180.135.
Sec. 180.315 May I use the services of an excluded person as a
principal under a covered transaction?
(a) You as a participant may continue to use the services of an
excluded person as a principal under a covered transaction if you were
using the services of that person in the transaction before the person
was excluded. However, you are not required to continue using that
person's services as a principal. You should make a decision about
whether to discontinue that person's services only after 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 a
principal under a covered transaction unless the Federal agency
responsible for the transaction grants an exception under Sec. 180.135.
Sec. 180.320 Must I verify that principals of my covered transactions
are eligible to participate?
Yes, you as a participant are responsible for determining whether
any of your principals of your covered transactions is excluded or
disqualified from participating in the transaction.
You may decide the method and frequency by which you do so. You may,
but you are not required to, check the EPLS.
Sec. 180.325 What happens if I do business with an excluded person in
a covered transaction?
If as a participant you knowingly do business with an excluded
person, the Federal agency responsible for your transaction may disallow
costs, annul or terminate the transaction, issue a stop work order,
debar or suspend you, or take other remedies as appropriate.
Sec. 180.330 What requirements must I pass down to persons at lower
tiers with whom I intend to do business?
Before entering into a covered transaction with a participant at the
next lower tier, you must require that participant to--
(a) Comply with this subpart as a condition of participation in the
transaction. You may do so using any method(s), unless the regulation of
the Federal agency responsible for the transaction requires you to use
specific methods.
(b) Pass the requirement to comply with this subpart to each person
with whom the participant enters into a covered transaction at the next
lower tier.
[[Page 52]]
Disclosing Information--Primary Tier Participants
Sec. 180.335 What information must I provide before entering into a
covered transaction with a Federal agency?
Before you enter into a covered transaction at the primary tier, you
as the participant must notify the Federal agency office that is
entering into the transaction with you, if you know that you or any of
the principals for that covered transaction:
(a) Are presently excluded or disqualified;
(b) Have been convicted within the preceding three years of any of
the offenses listed in Sec. 180.800(a) or had a civil judgment rendered
against you for one of those offenses within that time period;
(c) Are presently indicted for or otherwise criminally or civilly
charged by a governmental entity (Federal, State or local) with
commission of any of the offenses listed in Sec. 180.800(a); or
(d) Have had one or more public transactions (Federal, State, or
local) terminated within the preceding three years for cause or default.
Sec. 180.340 If I disclose unfavorable information required under
Sec. 180.335, will I be prevented from participating in the transaction?
As a primary tier participant, your disclosure of unfavorable
information about yourself or a principal under Sec. 180.335 will not
necessarily cause a Federal agency to deny your participation in the
covered transaction. The agency will consider the information when it
determines whether to enter into the covered transaction. The agency
will also consider any additional information or explanation that you
elect to submit with the disclosed information.
Sec. 180.345 What happens if I fail to disclose information required
under Sec. 180.335?
If a Federal agency later determines that you failed to disclose
information under Sec. 180.335 that you knew at the time you entered
into the covered transaction, the agency may--
(a) Terminate the transaction for material failure to comply with
the terms and conditions of the transaction; or
(b) Pursue any other available remedies, including suspension and
debarment.
Sec. 180.350 What must I do if I learn of information required under
Sec. 180.335 after entering into a covered transaction with a Federal
agency?
At any time after you enter into a covered transaction, you must
give immediate written notice to the Federal agency office with which
you entered into the transaction if you learn either that--
(a) You failed to disclose information earlier, as required by Sec.
180.335; or
(b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. 180.335.
Disclosing Information--Lower Tier Participants
Sec. 180.355 What information must I provide to a higher tier
participant before entering into a covered transaction with that
participant?
Before you enter into a covered transaction with a person at the
next higher tier, you as a lower tier participant must notify that
person if you know that you or any of the principals are presently
excluded or disqualified.
Sec. 180.360 What happens if I fail to disclose information required
under Sec. 180.355?
If a Federal agency later determines that you failed to tell the
person at the higher tier that you were excluded or disqualified at the
time you entered into the covered transaction with that person, the
agency may pursue any available remedies, including suspension and
debarment.
Sec. 180.365 What must I do if I learn of information required under
Sec. 180.355 after entering into a covered transaction with a higher
tier participant?
At any time after you enter into a lower tier covered transaction
with a person at a higher tier, you must provide immediate written
notice to that person if you learn either that--
[[Page 53]]
(a) You failed to disclose information earlier, as required by Sec.
180.355; or
(b) Due to changed circumstances, you or any of the principals for
the transaction now meet any of the criteria in Sec. 180.355.
Subpart D_Responsibilities of Federal Agency Officials Regarding
Transactions
Sec. 180.400 May I enter into a transaction with an excluded or
disqualified person?
(a) You as a Federal agency official may not enter into a covered
transaction with an excluded person unless you obtain an exception under
Sec. 180.135.
(b) You may not enter into any transaction with a person who is
disqualified from that transaction, unless you obtain a waiver or
exception under the statute, Executive order, or regulation that is the
basis for the person's disqualification.
Sec. 180.405 May I enter into a covered transaction with a participant
if a principal of the transaction is excluded?
As a Federal agency official, you may not enter into a covered
transaction with a participant if you know that a principal of the
transaction is excluded, unless you obtain an exception under Sec.
180.135.
Sec. 180.410 May I approve a participant's use of the services of an
excluded person?
After entering into a covered transaction with a participant, you as
a Federal agency official may not approve a participant's use of an
excluded person as a principal under that transaction, unless you obtain
an exception under Sec. 180.135.
Sec. 180.415 What must I do if a Federal agency excludes the
participant or a principal after I enter into a covered transaction?
(a) You as a Federal agency official may continue covered
transactions with an excluded person, or under which an excluded person
is a principal, if the transactions were in existence when the person
was excluded. You are not required to continue the transactions,
however, and you may consider termination. You should make a decision
about whether to terminate and the type of termination action, if any,
only after a thorough review to ensure that the action is proper.
(b) You may not renew or extend covered transactions (other than no-
cost time extensions) with any excluded person, or under which an
excluded person is a principal, unless you obtain an exception under
Sec. 180.135.
Sec. 180.420 May I approve a transaction with an excluded or
disqualified person at a lower tier?
If a transaction at a lower tier is subject to your approval, you as
a Federal agency official may not approve--
(a) A covered transaction with a person who is currently excluded,
unless you obtain an exception under Sec. 180.135; 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, or regulation that is the basis for the person's
disqualification.
Sec. 180.425 When do I check to see if a person is excluded or
disqualified?
As a Federal agency official, you must check to see if a person is
excluded or disqualified 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 your agency's approval of
the lower tier participant is required; or
(d) Approve a principal in connection with a lower tier transaction
if your agency's approval of the principal is required.
Sec. 180.430 How do I check to see if a person is excluded or
disqualified?
You check to see if a person is excluded or disqualified in two
ways:
(a) You as a Federal agency official must check the EPLS when you
take any action listed in Sec. 180.425.
(b) You must review information that a participant gives you, as
required by Sec. 180.335, about its status or the status of the
principals of a transaction.
[[Page 54]]
Sec. 180.435 What must I require of a primary tier participant?
You as a Federal agency official must require each participant in a
primary tier covered transaction to--
(a) Comply with subpart C of this part as a condition of
participation in the transaction; and
(b) Communicate the requirement to comply with subpart C of this
part to persons at the next lower tier with whom the primary tier
participant enters into covered transactions.
Sec. 180.440 What action may I take if a primary tier participant
knowingly does business with an excluded or disqualified person?
If a participant knowingly does business with an excluded or
disqualified person, you as a Federal agency official may refer the
matter for suspension and debarment consideration. You may also disallow
costs, annul or terminate the transaction, issue a stop work order, or
take any other appropriate remedy.
Sec. 180.445 What action may I take if a primary tier participant fails
to disclose the information required under Sec. 180.335?
If you as a Federal agency official determine that a participant
failed to disclose information, as required by Sec. 180.335, at the
time it entered into a covered transaction with you, you may--
(a) Terminate the transaction for material failure to comply with
the terms and conditions of the transaction; or
(b) Pursue any other available remedies, including suspension and
debarment.
Sec. 180.450 What action may I take if a lower tier participant fails
to disclose the information required under Sec. 180.355 to the next
higher tier?
If you as a Federal agency official determine that a lower tier
participant failed to disclose information, as required by Sec.
180.355, at the time it entered into a covered transaction with a
participant at the next higher tier, you may pursue any remedies
available to you, including the initiation of a suspension or debarment
action.
Subpart E_Excluded Parties List System
Sec. 180.500 What is the purpose of the Excluded Parties List System
(EPLS)?
The EPLS is a widely available source of the most current
information about persons who are excluded or disqualified from covered
transactions.
Sec. 180.505 Who uses the EPLS?
(a) Federal agency officials use the EPLS to determine whether to
enter into a transaction with a person, as required under Sec. 180.430.
(b) Participants also may, but are not required to, use the EPLS to
determine if--
(1) Principals of their transactions are excluded or disqualified,
as required under Sec. 180.320; or
(2) Persons with whom they are entering into covered transactions at
the next lower tier are excluded or disqualified.
(c) The EPLS is available to the general public.
Sec. 180.510 Who maintains the EPLS?
The General Services Administration (GSA) maintains the EPLS. When a
Federal agency takes an action to exclude a person under the
nonprocurement or procurement debarment and suspension system, the
agency enters the information about the excluded person into the EPLS.
Sec. 180.515 What specific information is in the EPLS?
(a) At a minimum, the EPLS indicates--
(1) The full name (where available) and address of each excluded and
disqualified person, in alphabetical order, with cross references if
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 the action;
(6) The Federal agency and name and telephone number of the agency
point of contact for the action; and
(7) The Dun and Bradstreet Number (DUNS), or other similar code
approved
[[Page 55]]
by the GSA, of the excluded or disqualified person, if available.
(b)(1) The database for the EPLS includes a field for the Taxpayer
Identification Number (TIN) (the social security number (SSN) for an
individual) of an excluded or disqualified person.
(2) Agencies disclose the SSN of an individual to verify the
identity of an individual, only if permitted under the Privacy Act of
1974 and, if appropriate, the Computer Matching and Privacy Protection
Act of 1988, as codified in 5 U.S.C. 552(a).
Sec. 180.520 Who places the information into the EPLS?
Federal agency officials who take actions to exclude persons under
this part or officials who are responsible for identifying disqualified
persons must enter the following information about those persons into
the EPLS:
(a) Information required by Sec. 180.515(a);
(b) The Taxpayer Identification Number (TIN) of the excluded or
disqualified person, including the social security number (SSN) for an
individual, if the number is available and may be disclosed under law;
(c) Information about an excluded or disqualified person, generally
within five 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 is listed as disqualified.
Sec. 180.525 Whom do I ask if I have questions about a person in the
EPLS?
If you have questions about a listed person in the EPLS, ask the
point of 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.
Sec. 180.530 Where can I find the EPLS?
You may access the EPLS through the Internet, currently at http://
epls.arnet.gov or http://www.epls.gov.
Subpart F_General Principles Relating to Suspension and Debarment
Actions
Sec. 180.600 How do suspension and debarment actions start?
When Federal agency officials receive information from any source
concerning a cause for suspension or debarment, they will promptly
report it and the agency will investigate. The officials refer the
question of whether to suspend or debar you to their suspending or
debarring official for consideration, if appropriate.
Sec. 180.605 How does suspension differ from debarment?
Suspension differs from debarment in that--
------------------------------------------------------------------------
A suspending official . . . A debarring official . . .
------------------------------------------------------------------------
(a) Imposes suspension as a temporary Imposes debarment for a
status of in eligibility for specified period as a final
procurement and nonprocurement determination that a person is
transactions, pending completion of an not presently responsible.
investigation or legal proceedings.
(b) Must--
(1) Have adequate evidence that
there may be a cause for debarment
of a person; and
(2) Conclude that immediate action Must conclude, based on a
is necessary to protect the preponderance of the evidence,
Federal interest that the person has engaged in
conduct that warrants
debarment.
(c) Usually imposes the suspension Imposes debarment after giving
first, and then promptly notifies the the respondent notice of the
suspended person, giving the person an action and an opportunity to
opportunity to contest the suspension contest the proposed
and have it lifted. debarment.
------------------------------------------------------------------------
Sec. 180.610 What procedures does a Federal agency use in suspension
and debarment actions?
In deciding whether to suspend or debar you, a Federal agency
handles the actions as informally as practicable, consistent with
principles of fundamental fairness.
(a) For suspension actions, a Federal agency uses the procedures in
this subpart and subpart G of this part.
[[Page 56]]
(b) For debarment actions, a Federal agency uses the procedures in
this subpart and subpart H of this part.
Sec. 180.615 How does a Federal agency notify a person of a suspension
or debarment action?
(a) The suspending or debarring official sends a written notice to
the last known 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.
Sec. 180.620 Do Federal agencies coordinate suspension and debarment
actions?
Yes, when more than one Federal agency has an interest in a
suspension or debarment, the agencies may consider designating one
agency as the lead agency for making the decision. Agencies are
encouraged to establish methods and procedures for coordinating their
suspension and debarment actions.
Sec. 180.625 What is the scope of a suspension or debarment?
If you are suspended or debarred, the suspension or debarment is
effective as follows:
(a) Your suspension or debarment constitutes suspension or debarment
of all of your divisions and other organizational elements from all
covered transactions, 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
or debarment 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.
Sec. 180.630 May a Federal agency impute the conduct of one person to
another?
For purposes of actions taken under this part, a Federal agency may
impute conduct as follows:
(a) Conduct imputed from an individual to an organization. A Federal
agency may impute the fraudulent, criminal, or other improper conduct of
any officer, director, shareholder, partner, employee, or other
individual associated with an organization, to that organization when
the improper conduct occurred in connection with the individual's
performance of duties for or on behalf of that organization, or with the
organization's knowledge, approval or acquiescence. The organization's
acceptance of the benefits derived from the conduct is evidence of
knowledge, approval or acquiescence.
(b) Conduct imputed from an organization to an individual, or
between individuals. A Federal agency may impute the fraudulent,
criminal, or other improper conduct of any organization to an
individual, or from one individual to another individual, if the
individual to whom the improper conduct is imputed either participated
in, had knowledge of, or reason to know of the improper conduct.
(c) Conduct imputed from one organization to another organization. A
Federal agency may impute the fraudulent, criminal, or other improper
conduct of one organization to another organization when the improper
conduct occurred in connection with a partnership, joint venture, joint
application, association or similar arrangement, or when the
organization to whom the improper conduct is imputed has the power to
direct, manage, control or influence the activities of the organization
responsible for the improper conduct. Acceptance of the benefits derived
from the conduct is evidence of knowledge, approval or acquiescence.
Sec. 180.635 May a Federal agency settle a debarment or suspension
action?
Yes, a Federal agency may settle a debarment or suspension action at
any time if it is in the best interest of the Federal Government.
[[Page 57]]
Sec. 180.640 May a settlement include a voluntary exclusion?
Yes, if a Federal agency enters into a settlement with you in which
you agree to be excluded, it is called a voluntary exclusion and has
governmentwide effect.
Sec. 180.645 Do other Federal agencies know if an agency agrees to a
voluntary exclusion?
(a) Yes, the Federal agency agreeing to the voluntary exclusion
enters information about it into the EPLS.
(b) Also, any agency or person may contact the Federal agency that
agreed to the voluntary exclusion to find out the details of the
voluntary exclusion.
Subpart G_Suspension
Sec. 180.700 When may the suspending official issue a suspension?
Suspension is a serious action. Using the procedures of this subpart
and subpart F of this part, the suspending official may impose
suspension only when that official determines that--
(a) There exists an indictment for, or other adequate evidence to
suspect, an offense listed under Sec. 180.800(a), or
(b) There exists adequate evidence to suspect any other cause for
debarment listed under Sec. 180.800(b) through (d); and
(c) Immediate action is necessary to protect the public interest.
Sec. 180.705 What does the suspending official consider in issuing
a suspension?
(a) In determining the adequacy of the evidence to support the
suspension, the suspending official considers 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. During this assessment, the suspending
official may examine the basic documents, including grants, cooperative
agreements, loan authorizations, contracts, and other relevant
documents.
(b) An indictment, conviction, civil judgment, or other official
findings by Federal, 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
public interest, the suspending official has wide discretion. For
example, the suspending official may infer the necessity for immediate
action to protect the public interest either from the nature of the
circumstances giving rise to a cause for suspension or from potential
business relationships or involvement with a program of the Federal
Government.
Sec. 180.710 When does a suspension take effect?
A suspension is effective when the suspending official signs the
decision to suspend.
Sec. 180.715 What notice does the suspending official give me if I
am suspended?
After deciding to suspend you, the suspending official promptly
sends you a Notice 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
which seriously reflect on the propriety of further Federal Government
dealings with you; or
(4) Conduct of another person that has been imputed to you, or your
affiliation with a suspended or debarred person;
(c) Of any other irregularities in terms sufficient to put you on
notice without disclosing the Federal Government's evidence;
(d) Of the cause(s) upon which the suspending official relied under
Sec. 180.700 for imposing suspension;
(e) That your suspension is for a temporary period pending the
completion of an investigation or resulting legal or debarment
proceedings;
(f) Of the applicable provisions of this subpart, subpart F of this
part, and any other agency procedures governing suspension
decisionmaking; and
(g) Of the governmentwide effect of your suspension from procurement
and nonprocurement programs and activities.
[[Page 58]]
Sec. 180.720 How may I contest a suspension?
If you as a respondent wish to contest a suspension, you or your
representative must provide the suspending official with information in
opposition to the suspension. You may do this orally or in writing, but
any information provided orally that you consider important must also be
submitted in writing for the official record.
Sec. 180.725 How much time do I have to contest a suspension?
(a) As a respondent you or your representative must either send, or
make arrangements to appear and present, the information and argument to
the suspending official within 30 days after you receive the Notice of
Suspension.
(b) The Federal agency taking the action considers the notice to be
received by you--
(1) When delivered, if the agency mails the notice to the last known
street address, or five days after the agency sends it if the letter is
undeliverable;
(2) When sent, if the agency sends the notice by facsimile or five
days after the agency sends it if the facsimile is undeliverable; or
(3) When delivered, if the agency sends the notice by e-mail or five
days after the agency sends it if the e-mail is undeliverable.
Sec. 180.730 What information must I provide to the suspending official
if I contest the suspension?
(a) In addition to any information and argument in opposition, as a
respondent your submission to the suspending official must identify--
(1) Specific facts that contradict the statements contained in the
Notice of Suspension. A general denial is insufficient to raise a
genuine dispute over facts material to the suspension;
(2) All existing, proposed, or prior exclusions under regulations
implementing Executive Order 12549 and all similar actions taken by
Federal, State, or local agencies, including administrative agreements
that affect only those agencies;
(3) All criminal and civil proceedings not included in the Notice of
Suspension 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 Federal agency taking the action may seek further
criminal, civil or administrative action against you, as appropriate.
Sec. 180.735 Under what conditions do I get an additional opportunity
to challenge the facts on which the suspension is based?
(a) You as a respondent will not have an additional opportunity to
challenge the 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 to contest the facts was provided;
(2) Your presentation in opposition contains only general denials to
information contained in the Notice of Suspension;
(3) The issues raised in your presentation in opposition to the
suspension are not factual in nature, or are not material to the
suspending official's initial decision to suspend, or the official's
decision whether to continue the suspension; or
(4) On the basis of advice from the Department of Justice, an office
of the United States Attorney, a State attorney general's office, or a
State or local prosecutor's office, that substantial interests of the
government in pending or contemplated legal proceedings based on the
same facts as the suspension would be prejudiced by conducting fact-
finding.
(b) You will have an opportunity to challenge the facts if the
suspending 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
facts material to the suspension.
(c) If you have an opportunity to challenge disputed material facts
under this section, the suspending official or designee must conduct
additional proceedings to resolve those facts.
[[Page 59]]
Sec. 180.740 Are suspension proceedings formal?
(a) Suspension proceedings are conducted in a fair and informal
manner. The suspending official may use flexible procedures to allow you
to present matters in opposition. In so doing, the suspending official
is not required to follow formal rules of evidence or procedure in
creating an official record upon which the official will base a final
suspension decision.
(b) You as a respondent or your representative must submit any
documentary evidence you want the suspending official to consider.
Sec. 180.745 How is fact-finding conducted?
(a) If fact-finding is conducted--
(1) You may present witnesses and other evidence, and confront any
witness presented; 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 you as a respondent and the Federal agency agree to waive it in
advance. If you want a copy of the transcribed record, you may purchase
it.
Sec. 180.750 What does the suspending official consider in deciding
whether to continue or terminate my suspension?
(a) The suspending official bases the decision on all information
contained in the official record. The record includes--
(1) All information in support of the suspending official's initial
decision to suspend you;
(2) Any further information and argument presented in support of, or
opposition to, the suspension; and
(3) Any transcribed record of fact-finding proceedings.
(b) The suspending official may refer disputed material facts to
another official for findings of fact. The suspending official may
reject any resulting findings, in whole or in part, only after
specifically determining them to be arbitrary, capricious, or clearly
erroneous.
Sec. 180.755 When will I know whether the suspension is continued
or terminated?
The suspending official must make a written decision whether to
continue, modify, or terminate your suspension within 45 days of closing
the official record. The official record closes upon the suspending
official's receipt of final submissions, information and findings of
fact, if any. The suspending official may extend that period for good
cause.
Sec. 180.760 How long may my suspension last?
(a) If legal or debarment proceedings are initiated at the time of,
or during your suspension, the suspension may continue until the
conclusion of those proceedings. However, if proceedings are not
initiated, a suspension may not exceed 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. Assistant Attorney General, U.S. Attorney, or other responsible
prosecuting official requests an extension in writing. In no event may a
suspension exceed 18 months without initiating proceedings under
paragraph (a) of this section.
(c) The suspending official must notify the appropriate officials
under paragraph (b) of this section of an impending termination of a
suspension at least 30 days before the 12 month period expires to allow
the officials an opportunity to request an extension.
Subpart H_Debarment
Sec. 180.800 What are the causes for debarment?
A Federal agency 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 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;
[[Page 60]]
(3) Commission of embezzlement, theft, forgery, bribery,
falsification or destruction of records, making false statements, tax
evasion, 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 your
present responsibility;
(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, or a procurement debarment by any Federal agency taken
pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995;
(2) Knowingly doing business with an ineligible person, except as
permitted under Sec. 180.135;
(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. 180.640 or of any settlement of a
debarment or suspension action; or
(5) Violation of the provisions of the Drug-Free Workplace Act of
1988 (41 U.S.C. 701); or
(d) Any other cause of so serious or compelling a nature that it
affects your present responsibility.
Sec. 180.805 What notice does the debarring official give me if I am
proposed for debarment?
After consideration of the causes in Sec. 180.800, if the debarring
official proposes to debar you, the official sends you a Notice of
Proposed Debarment, pursuant to Sec. 180.615, 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 you on notice of the conduct or transactions upon which the proposed
debarment is based;
(c) Of the cause(s) under Sec. 180.800 upon which the debarring
official relied for proposing your debarment;
(d) Of the applicable provisions of this subpart, subpart F of this
part, and any other agency procedures governing debarment; and
(e) Of the governmentwide effect of a debarment from procurement and
nonprocurement programs and activities.
Sec. 180.810 When does a debarment take effect?
Unlike suspension, 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 an opportunity to contest the
proposed debarment.
Sec. 180.815 How may I contest a proposed debarment?
If you as a respondent wish to contest a proposed debarment, you or
your representative must provide the debarring official with information
in opposition to the proposed debarment. You may do this orally or in
writing, but any information provided orally that you consider important
must also be submitted in writing for the official record.
Sec. 180.820 How much time do I have to contest a proposed debarment?
(a) As a respondent you or your representative must either send, or
make arrangements to appear and present, the information and argument to
the debarring official within 30 days after you receive the Notice of
Proposed Debarment.
[[Page 61]]
(b) The Federal agency taking the action considers the Notice of
Proposed Debarment to be received by you--
(1) When delivered, if the agency mails the notice to the last known
street address, or five days after the agency sends it if the letter is
undeliverable;
(2) When sent, if the agency sends the notice by facsimile or five
days after the agency sends it if the facsimile is undeliverable; or
(3) When delivered, if the agency sends the notice by e-mail or five
days after the agency sends it if the e-mail is undeliverable.
Sec. 180.825 What information must I provide to the debarring official
if I contest the proposed debarment?
(a) In addition to any information and argument in opposition, as a
respondent your submission to the debarring official must identify--
(1) Specific facts that contradict the statements contained in the
Notice of Proposed Debarment. Include any information about any of the
factors listed in Sec. 180.860. A general denial is insufficient to
raise a genuine dispute over facts material to the debarment;
(2) All existing, proposed, or prior exclusions under regulations
implementing Executive Order 12549 and all similar actions taken by
Federal, State, or local agencies, including administrative agreements
that affect only those agencies;
(3) All criminal and civil proceedings not included in the Notice of
Proposed Debarment 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 Federal agency taking the action may seek further
criminal, civil or administrative action against you, as appropriate.
Sec. 180.830 Under what conditions do I get an additional opportunity
to challenge the facts on which the proposed debarment is based?
(a) You as a respondent will not have an additional opportunity to
challenge the 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 to
information contained in the Notice of Proposed Debarment; or
(3) The issues raised in your presentation in opposition to the
proposed debarment are not factual in nature, or are not material to the
debarring official's decision whether to debar.
(b) You will have an additional opportunity to challenge the facts
if the debarring 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
facts material to the proposed debarment.
(c) If you have an opportunity to challenge disputed material facts
under this section, the debarring official or designee must conduct
additional proceedings to resolve those facts.
Sec. 180.835 Are debarment proceedings formal?
(a) Debarment proceedings are conducted in a fair and informal
manner. The debarring official may use flexible procedures to allow you
as a respondent to present matters in opposition. In so doing, the
debarring official is not required to follow formal rules of evidence or
procedure in creating an official record upon which the official will
base the decision whether to debar.
(b) You or your representative must submit any documentary evidence
you want the debarring official to consider.
Sec. 180.840 How is fact-finding conducted?
(a) If fact-finding is conducted--
(1) You may present witnesses and other evidence, and confront any
witness presented; 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 you as a respondent and the Federal agency agree to waive it in
advance. If you want a copy of the transcribed record, you may purchase
it.
[[Page 62]]
Sec. 180.845 What does the debarring official consider in deciding
whether to debar me?
(a) The debarring official may debar you for any of the causes in
Sec. 180.800. However, the official need not debar you even if a cause
for debarment exists. The official may consider the seriousness of your
acts or omissions and the mitigating or aggravating factors set forth at
Sec. 180.860.
(b) The debarring official bases the decision on all information
contained in the official record. The record includes--
(1) All information in support of the debarring official's proposed
debarment;
(2) Any further information and argument presented in support of, or
in opposition to, the proposed debarment; and
(3) Any transcribed record of fact-finding proceedings.
(c) The debarring official may refer disputed material facts to
another official for findings of fact. The debarring official may reject
any resultant findings, in whole or in part, only after specifically
determining them to be arbitrary, capricious, or clearly erroneous.
Sec. 180.850 What is the standard of proof in a debarment action?
(a) In any debarment action, the Federal agency must establish the
cause for debarment by a preponderance of the evidence.
(b) If the proposed debarment is based upon a conviction or civil
judgment, the standard of proof is met.
Sec. 180.855 Who has the burden of proof in a debarment action?
(a) The Federal agency has the burden to prove that a cause for
debarment exists.
(b) Once a cause for debarment is established, you as a respondent
have the burden of demonstrating to the satisfaction of the debarring
official that you are presently responsible and that debarment is not
necessary.
Sec. 180.860 What factors may influence the debarring official's
decision?
This section lists the mitigating and aggravating factors that the
debarring official may consider in determining whether to debar you and
the length of your debarment period. The debarring official may consider
other factors if appropriate in light of the circumstances of a
particular case. The existence or nonexistence of any factor, such as
one of those set forth in this section, is not necessarily determinative
of your present responsibility. In making a debarment decision, the
debarring official may consider the following factors:
(a) The actual or potential harm or impact that results or may
result from the 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 have engaged in wrongdoing similar to that found in the
debarment action, the existence of this fact may be used by the
debarring official in determining that you have a pattern or prior
history of wrongdoing.
(d) Whether you are or have been excluded or disqualified by an
agency of the Federal Government or have not been allowed to participate
in State or local contracts or assistance agreements on a basis of
conduct similar to one or more of the causes for debarment specified in
this part.
(e) Whether you have entered into an administrative agreement with a
Federal agency or a State or local government that is not governmentwide
but is based on conduct similar to one or more of the causes for
debarment specified in this part.
(f) Whether and to what extent you planned, initiated, or carried
out the wrongdoing.
(g) Whether you have accepted responsibility for the wrongdoing and
recognize the seriousness of the misconduct that led to the cause for
debarment.
(h) Whether you have paid or agreed to pay all criminal, civil and
administrative liabilities for the improper activity, including any
investigative or administrative costs incurred by the government, and
have made or agreed to make full restitution.
[[Page 63]]
(i) Whether you have cooperated fully with the government agencies
during the investigation and any court or administrative action. In
determining the extent of cooperation, the debarring official may
consider when the cooperation began and 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
remedial measures, such as establishing ethics training and implementing
programs to prevent recurrence.
(m) Whether your principals tolerated the offense.
(n) Whether you brought the activity cited as a basis for the
debarment to the attention of the appropriate government agency in a
timely manner.
(o) Whether you have fully investigated the circumstances
surrounding the cause for debarment and, if so, made the result of the
investigation available to the debarring official.
(p) Whether you had effective standards of conduct and internal
control systems in place at the time the questioned conduct occurred.
(q) Whether you have taken appropriate disciplinary action against
the individuals responsible for the activity which constitutes the cause
for debarment.
(r) Whether you have had adequate time to eliminate the
circumstances within your organization that led to the cause for the
debarment.
(s) Other factors that are appropriate to the circumstances of a
particular case.
Sec. 180.865 How long may my debarment last?
(a) If the debarring official decides to debar you, your period of
debarment will be based on the seriousness of the cause(s) upon which
your debarment is based. Generally, debarment should not exceed three
years. However, if circumstances warrant, the debarring official may
impose a longer period of debarment.
(b) In determining the period of debarment, the debarring official
may consider the factors in Sec. 180.860. If a suspension has preceded
your debarment, the debarring official must consider the time you were
suspended.
(c) If the debarment is for a violation of the provisions of the
Drug-Free Workplace Act of 1988, your period of debarment may not exceed
five years.
Sec. 180.870 When do I know if the debarring official debars me?
(a) The debarring official must make a written decision whether to
debar within 45 days of closing the official record. The official record
closes upon the debarring official's receipt of final submissions,
information and findings of fact, if any. The debarring official may
extend that period for good cause.
(b) The debarring official sends you written notice, pursuant to
Sec. 180.615 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
transactions and contracts that are subject to the Federal Acquisition
Regulation (48 CFR chapter 1), throughout the executive branch of the
Federal Government unless an agency head or an authorized designee
grants an exception.
Sec. 180.875 May I ask the debarring official to reconsider a decision
to debar me?
Yes, as a debarred person you may ask the debarring official to
reconsider the 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.
Sec. 180.880 What factors may influence the debarring official during
reconsideration?
The debarring official may reduce or terminate your debarment based
on--
(a) Newly discovered material evidence;
[[Page 64]]
(b) A reversal of the conviction or civil judgment upon which your
debarment was 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.
Sec. 180.885 May the debarring official extend a debarment?
(a) Yes, the debarring official may extend a debarment for an
additional period, if that official determines that an extension is
necessary to protect the public interest.
(b) However, the debarring official may not extend a debarment
solely on the basis of the facts and circumstances upon which the
initial debarment action was based.
(c) If the debarring official decides that a debarment for an
additional period is necessary, the debarring official must follow the
applicable procedures in this subpart, and subpart F of this part, to
extend the debarment.
Subpart I_Definitions
Sec. 180.900 Adequate evidence.
Adequate evidence means information sufficient to support the
reasonable belief that a particular act or omission has occurred.
Sec. 180.905 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. The ways a Federal
agency may determine control 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 a person which has the same or similar management,
ownership, or principal employees as the excluded person.
Sec. 180.910 Agent or representative.
Agent or representative means any person who acts on behalf of, or
who is authorized to commit a participant in a covered transaction.
Sec. 180.915 Civil judgment.
Civil judgment means the disposition of a civil action by any court
of competent jurisdiction, whether by verdict, decision, settlement,
stipulation, other disposition which creates a civil liability for the
complained of wrongful acts, or a final determination of liability under
the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-3812).
Sec. 180.920 Conviction.
Conviction means--
(a) A judgment or any other determination of guilt of a criminal
offense by any 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 disposition without the participation of the court is the functional
equivalent of a judgment only if it includes an admission of guilt.
Sec. 180.925 Debarment.
Debarment means an action taken by a debarring official under
Subpart H of this part to exclude a person from participating in covered
transactions and transactions covered under the Federal Acquisition
Regulation (48 CFR chapter 1). A person so excluded is debarred.
Sec. 180.930 Debarring official.
Debarring official means an agency official who is authorized to
impose debarment. A debarring official is either--
(a) The agency head; or
(b) An official designated by the agency head.
Sec. 180.935 Disqualified.
Disqualified means that a person is prohibited from participating in
specified Federal procurement or nonprocurement transactions as required
under a statute, Executive order (other
[[Page 65]]
than Executive Orders 12549 and 12689) or other authority. Examples of
disqualifications include persons prohibited 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) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799).
Sec. 180.940 Excluded or exclusion.
Excluded or exclusion means--
(a) That a person or commodity is prohibited from being a
participant in covered transactions, whether the person has been
suspended; debarred; proposed for debarment under 48 CFR part 9, subpart
9.4; voluntarily excluded; or
(b) The act of excluding a person.
Sec. 180.945 Excluded Parties List System (EPLS).
Excluded Parties List System (EPLS) means the list maintained and
disseminated by the General Services Administration (GSA) containing the
names and other information about persons who are ineligible.
Sec. 180.950 Federal agency.
Federal agency means any United States executive department,
military department, defense agency or any other agency of the executive
branch. Other agencies of the Federal government are not considered
``agencies'' for the purposes of this part unless they issue regulations
adopting the governmentwide Debarment and Suspension system under
Executive Orders 12549 and 12689.
Sec. 180.955 Indictment.
Indictment means an indictment for a criminal offense. A
presentment, information, or other filing by a competent authority
charging a criminal offense shall be given the same effect as an
indictment.
Sec. 180.960 Ineligible or ineligibility.
Ineligible or ineligibility means that a person or commodity is
prohibited from covered transactions because of an exclusion or
disqualification.
Sec. 180.965 Legal proceedings.
Legal proceedings means any criminal proceeding or any civil
judicial proceeding, including a proceeding under the Program Fraud
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal
Government or a State or local government or quasi-governmental
authority is a party. The term also includes appeals from those
proceedings.
Sec. 180.970 Nonprocurement transaction.
(a) Nonprocurement transaction means any transaction, regardless of
type (except procurement contracts), including, but not limited to the
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 of Federal funds.
Sec. 180.975 Notice.
Notice means a written communication served in person, sent by
certified mail or its equivalent, or sent electronically by e-mail or
facsimile. (See Sec. 180. 615.)
Sec. 180.980 Participant.
Participant means any person who submits a proposal for or who
enters into a covered transaction, including an agent or representative
of a participant.
Sec. 180.985 Person.
Person means any individual, corporation, partnership, association,
unit of government, or legal entity, however organized.
Sec. 180.990 Preponderance of the evidence.
Preponderance of the evidence means proof by information that,
compared with information opposing it, leads to the conclusion that the
fact at issue is more probably true than not.
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Sec. 180.995 Principal.
Principal means--
(a) An officer, director, owner, partner, principal investigator, or
other person within a participant with management or supervisory
responsibilities related to a covered transaction; or
(b) A consultant or other person, whether or not employed by the
participant or 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
substantially influencing the development or outcome of an activity
required to perform the covered transaction.
Sec. 180.1000 Respondent.
Respondent means a person against whom an agency has initiated a
debarment or suspension action.
Sec. 180.1005 State.
(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 include institutions
of higher education, hospitals, or units of local government.
Sec. 180.1010 Suspending official.
(a) Suspending official means an agency official who is authorized
to impose suspension. The suspending official is either:
(1) The agency head; or
(2) An official designated by the agency head.
Sec. 180.1015 Suspension.
Suspension is an action taken by a suspending official under subpart
G of this part that immediately prohibits a person from participating in
covered transactions and transactions covered under the Federal
Acquisition Regulation (48 CFR chapter 1) for a temporary period,
pending completion of an agency investigation and any judicial or
administrative proceedings that may ensue. A person so excluded is
suspended.
Sec. 180.1020 Voluntary exclusion or voluntarily excluded.
(a) Voluntary exclusion means a person's agreement to be excluded
under the terms of a settlement between the person and one or more
agencies. Voluntary exclusion must have governmentwide effect.
(b) Voluntarily excluded means the status of a person who has agreed
to a voluntary exclusion.