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Federal Register / Vol. 70, No.

168 / Wednesday, August 31, 2005 / Rules and Regulations 51863

1970; E.O. 11541, 35 FR 10737, 3 CFR, nonprocurement instruments, and some 48 of the CFR, rather than through
1966—1970, p. 939. portions also apply to procurement Federal agency regulations on grants
■ 2. Section 1.205 is revised to read as contracts. For example, the: and agreements in this title.
follows: (a) Guidance on debarment and
suspension in part 180 of this subtitle ■ 3. Section 1.215 is revised to read as
§ 1.205 Applicability to grants and other applies broadly to all financial follows:
funding instruments. assistance and other nonprocurement § 1.215 Relationship to previous
The types of instruments that are transactions, and not just to grants and issuances.
subject to the guidance in this subtitle cooperative agreements.
vary from one portion of the guidance (b) Cost principles in parts 220, 225 Although some of the guidance was
to another (note that each part identifies and 230 of this subtitle apply to organized differently within OMB
the types of instruments to which it procurement contracts, as well as to circulars or other documents, much of
applies). All portions of the guidance financial assistance, although those the guidance in this subtitle existed
apply to grants and cooperative principles are implemented for prior to the establishment of title 2 of
agreements, some portions also apply to procurement contracts through the the CFR. Specifically:
other types of financial assistance or Federal Acquisition Regulation in Title

Guidance in . . . On . . . Previously was in . . .

(a) Chapter I, part 180 ....................................... Nonprocurement debarment and suspension OMB guidance that conforms with the govern-
ment-wide common rule (see 60 FR 33036,
June 26, 1995).
(b) Chapter II, part 215 ...................................... Administrative requirements for grants and OMB Circular A–110.
agreements.
(c) Chapter II, part 220 ....................................... Cost principles for educational institutions ...... OMB Circular A–21.
(d) Chapter II, part 225 ...................................... Cost principles for State, local, and Indian OMB Circular A–87.
tribal governments.
(e) Chapter II, part 230 ...................................... Cost principles for non-profit organizations ..... OMB Circular A–122.
(f) [Reserved].

[FR Doc. 05–16646 Filed 8–30–05; 8:45 am] Second, we are publishing the well as in an attachment. Please include
BILLING CODE 3110–01–P guidance in the recently established your name, title, organization, postal
Title 2 of the Code of Federal address, telephone number, and e-mail
Regulations (2 CFR). Locating it in 2 address in the text of the message.
OFFICE OF MANAGEMENT AND CFR will make it easier to find. Also, the Comments may also be submitted via
BUDGET OMB guidance will be co-located in the facsimile to (202) 395–3952.
same title of the CFR as Federal Comments may be mailed to Elizabeth
2 CFR Parts 180 and 215 agencies’ implementing regulations that Phillips, Office of Federal Financial
adopt the guidance. That is, consistent Management, Office of Management and
Guidance for Governmentwide Budget, Room 6025, New Executive
with the framework put in place when
Debarment and Suspension Office Building, 725 17th Street, NW.,
OMB established Title 2, each Federal
(Nonprocurement) Washington, DC 20503.
agency will issue its implementing
AGENCY: Office of Management and regulation in its chapter in Subtitle B of FOR FURTHER INFORMATION CONTACT:
Budget. 2 CFR. This notice also makes minor Elizabeth Phillips, Office of Federal
changes to the previously issued 2 CFR Financial Management, Office of
ACTION: Interim final guidance.
part 215, to conform that part with the Management and Budget, telephone
SUMMARY: The Office of Management guidance published today. (202) 395–3053 (direct) or (202) 395–
and Budget (OMB) is updating its DATES: The effective date for this 3993 (main office) and e-mail:
guidance on nonprocurement interim final guidance is September 30, ephillip@omb.eop.gov.
debarment and suspension to conform 2005. To be considered in preparation of SUPPLEMENTARY INFORMATION:
to the common rule that 33 Federal the final guidance, comments on the Background. The guidance updated by
agencies published on November 26, interim final guidance must be received this notice originated with Executive
2003. The agencies issued that common by October 31, 2005. Order (E.O.) 12549, ‘‘Debarment and
rule after resolving public comments ADDRESSES: Due to potential delays in Suspension.’’ That Executive order,
received in response to a Notice of OMB’s receipt and processing of mail issued in 1986, gave government-wide
Proposed Rulemaking. In updating the sent through the U.S. Postal Service, we effect to each agency’s nonprocurement
guidance, the OMB is making two encourage respondents to submit debarment and suspension actions.
improvements to streamline the policy comments electronically to ensure Section 6 of the Executive order
framework in this area. timely receipt. We cannot guarantee that authorized OMB to issue guidance on
First, we are issuing the guidance in comments mailed will be received nonprocurement debarment and
a format that is suitable for Federal before the comment closing date. suspension. Section 3 directed agencies
agency adoption. Agency adoption of Electronic mail comments may be to issue implementing regulations
the guidance will reduce the volume of submitted to: ephillip@omb.eop.gov. consistent with the guidance.
Federal regulations on nonprocurement Please include ‘‘OMB suspension and The guidance has been revised twice
debarment and suspension, making it debarment guidance’’ in the subject line since OMB first issued it in 1987 [52 FR
easier for the affected public to use, and of your e-mail message. Also, please 20360]. In 1988, when the agencies
easier and less expensive for the Federal include the full body of your comments finalized a common rule to implement
Government to maintain. in the text of the electronic message, as OMB’s 1987 guidance, OMB revised its

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51864 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations

guidance [53 FR 19160] to conform with to identify the agency-to-agency Structure and content of the
the agencies’ rule. The second revision variations in the language. To do so, it guidance. Our intent is to issue OMB
of the OMB guidance occurred in 1995 either must locate the original Federal guidance that is substantively
[60 FR 33036]. That revision conformed Register notice in which the agencies unchanged from the common rule
the guidance with the Federal agencies’ published the common rule or carefully issued by the Federal agencies in
update of the common rule to give read and compare the agencies’ separate November 2003. We modified some of
reciprocal government-wide effect to codifications of the rule. With the new the structure and language of the
both procurement and nonprocurement approach, however, each agency’s common rule, however, to create a part
debarment and suspension actions, an implementation of the guidelines will that reads properly as OMB guidance to
update which implemented E.O. 12689 be a brief rule that: (1) Adopts the agencies rather than an agency
and section 2455 of the Federal guidance, giving it regulatory effect for regulation.
Acquisition Streamlining Act. that agency’s activities; and (2) states The most significant structural change
Today’s notice conforms the guidance any agency-specific additions, is in Sections 180.05 to 180.45 of the
with the Federal agencies’ November 26, clarifications, and exceptions to the document, which precede subpart A.
2003, update to the common rule [68 FR government-wide policies and The primary purpose of these sections is
66534], but does so in a way that will procedures contained in the guidance. to provide OMB guidance to Federal
greatly improve the relationship • Reduce the volume of Federal agencies on how to use the guidance in
between OMB’s guidance and Federal regulations in the CFR. The 33 the remainder of the part. Sections
agencies’ implementing regulations. In individual agencies’ separate 180.20 through 180.35, for example, tell
the recent update, the Federal agencies codifications of the full text of the Federal agencies that they must issue
recast the common rule in plain common rule currently require about regulations to implement the guidance,
language and made other needed 750 pages in each paper copy of each identify some required and some
improvements. OMB did not issue a edition of the Code of Federal optional content for those regulations,
notice at that time to amend the Regulations (i.e., about 750,000 pages and specify where and when the
guidance because we were considering for every 1,000 paper copies of the CFR agencies must issue the regulations.
two improvements to the approach we that are produced). We estimate that the Most of these early sections have no
had used in the past. new approach will reduce this by about counterparts in the November 2003
Adoptable guidance. The first six-fold, which reduces both burdens on common rule, since it was designed to
improvement to our past approach is to the public and costs of maintaining the be an agency rule rather than OMB
publish the full text of the OMB regulations. guidance.
guidance in a form suitable for agency • Streamline the process for updating Following section 180.45, in subparts
adoption. The 1988 and 1995 notices the government-wide requirements on A through I of the part, is the guidance
amended the guidance to conform with nonprocurement debarment and that an agency would adopt to specify
updates to the common rule but the suspension. The process for updating a its policies and procedures for
guidance was not published anywhere common rule is exceedingly complex nonprocurement debarment and
in full text as an OMB issuance. Thus, and time consuming. The 33 Federal suspension. Several sections in subpart
the full text of policies and procedures agencies must process the same A of the guidance have different section
on nonprocurement debarment and rulemaking document before it can be numbers than their counterpart sections
suspension had to appear in each of 33 sent to the OMB and published in the in the common rule. The changed
Federal agencies’ separate codifications Federal Register, which can create long section numbers are due to the
of the common rule. Today’s notice, by delays in updating the rule. With the inclusion of the OMB guidance in
publishing the OMB guidance in a form new approach, OMB will publish sections 180.05 through 180.45, which
that Federal agencies can adopt, proposed changes to the guidance in the displaced and forced renumbering of
eliminates the need for each agency to Federal Register, with an opportunity sections l.25 to l.75 that preceded
repeat the full text in its own for the public to comment. Once subpart A in the November 2003
implementing regulation. agencies have issued their regulations common rule.
This fundamentally different adopting the guidance, the process for The only other portion of the
approach of adoptable guidance has future updates will be complete when guidance where section numbers vary
three major advantages over the OMB issues the final guidance. from the November 2003 common rule
previous approach of having each Agencies will not need to amend their is subpart I, which contains definitions
agency codify the full-text of a common regulations adopting the guidance. of terms. We replaced the defined term
rule. Specifically, the new approach Publication of the guidance in 2 CFR. ‘‘agency’’ in the common rule with the
will: The second improvement to our past term ‘‘Federal agency’’ in the OMB
• Make it easier for recipients of approach is to locate the OMB guidance guidelines, which forced a
covered transactions or respondents in in Subtitle A of the new Title 2 of the reorganization of the definition sections
suspension or debarment actions to CFR, ‘‘Grants and Agreements,’’ that in subpart I to keep the defined terms
discern agency-to-agency variations OMB established on May 11, 2004 [69 in alphabetical order.
from the common rule language. When FR 26276]. Publishing the guidance in In one section of subpart A, we made
agencies published the common rule on the CFR makes it very accessible to the a wording change to clarify the
nonprocurement debarment and affected public and, when agencies substance. Section l.135 of the
suspension, each agency was allowed to issue their new regulations adopting the November 2003 common rule stated that
have some agency-specific additions or guidance, will co-locate the OMB an agency, given an appropriate cause
exceptions to the government-wide guidance in the same CFR title with the for debarment, could take an action to
language. Because each agency’s agency rules. We also will maintain a exclude ‘‘any person who has been
variations are embedded in and copy of the current guidance at the OMB involved, is currently involved, or may
integrated with the agency’s publication Web site (http://www.whitehouse.gov/ reasonably be expected to be involved
of the full-text of the rule, it is difficult omb/circulars), for the benefit of in a covered transaction.’’ The
for a recipient or respondent that does individuals who would prefer to access corresponding language in the OMB
business with multiple Federal agencies it there. guidelines, which is in section 180.150,

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Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51865

is ‘‘any person who has been, is, or may debarment and suspension will: (1) PART 180—OMB GUIDELINES TO
reasonably be expected to be a Establish its chapter in Subtitle B of 2 AGENCIES ON GOVERNMENTWIDE
participant or principal in a covered CFR, consistent with the structure DEBARMENT AND SUSPENSION
transaction.’’ The revised language is established for that title; (2) issue in that (NONPROCUREMENT)
intended to be more precise than the chapter of 2 CFR its brief rule adopting
somewhat vague wording of the the OMB guidance and stating any Sec.
common rule. 180.5 What does this part do?
additions, clarifications, or exceptions
One language change throughout the 180.10 How is this part organized?
to the policies and procedures 180.15 To whom do these guidelines apply?
guidelines is use of the term ‘‘Federal contained in the guidance; and (3)
agency’’ where agency responsibilities, 180.20 What must a Federal agency do to
remove the November 2003 common implement these guidelines?
authorities, and procedures are
rule from its own CFR title. We expect 180.25 What must a Federal agency address
described. The common rule used the
to complete the process in calendar year in its implementation of these
personal pronoun ‘‘we,’’ which was
appropriate in an agency rule but not in 2006. guidelines?
Conforming 2 CFR part 215 (OMB 180.30 Where does a Federal agency
OMB guidance.
implement these guidelines?
We also dropped the references in Circular A–110). We also are making the
180.35 By when must a Federal agency
sections 180.530 and 180.945 of the following two changes to 2 CFR part
implement these guidelines?
guidance (which had the same section 215, in order to conform the OMB 180.40 How are these guidelines
numbers in the common rule) to the guidance in that part with the guidance maintained?
paper version of the list of excluded on nonprocurement debarment and 180.45 Do these guidelines cover persons
parties maintained by the General suspension: who are disqualified, as well as those
Services Administration (GSA). Section
• We dropped the reference in who are excluded from nonprocurement
l.530 of the November 2003 common transactions?
rule stated that Federal agencies § 215.13 to the common rule on
anticipated that the paper version of the nonprocurement debarment and Subpart A—General
list would be discontinued. The paper suspension, in anticipation of agencies 180.100 How are subparts A through I
version no longer is available, so we adoption of the guidance and removal of organized?
deleted the references to it. the common rule from their titles in the 180.105 How is this part written?
Other minor wording changes CFR. 180.110 Do terms in this part have special
throughout subparts A through I are to • We revised Paragraph 8 in meanings?
make the document read properly as Appendix A to 2 CFR part 215, to 180.115 What do subparts A through I of
OMB guidance. We have posted a this part do?
correct: (1) The name of the Excluded
source and destination table at the OMB 180.120 Do subparts A through I of this part
Parties List System; and (2) the apply to me?
Web site that shows which section in threshold for coverage of procurement
the OMB guidance corresponds to each 180.125 What is the purpose of the
contracts awarded by recipients of nonprocurement debarment and
section in the common rule and Federal financial assistance awards.
summarizes the more significant suspension system?
180.130 How does an exclusion restrict a
changes, none of which we believe to be List of Subjects
person’s involvement in covered
substantive change.
2 CFR Part 180 transactions?
Invitation to comment. Our intent is
180.135 May a Federal agency grant an
to preserve in the OMB guidance the Administrative practice and exception to let an excluded person
substantive content of the November
procedure, Grant programs, Loan participate in a covered transaction?
2003 common rule. Given that the 180.140 Does an exclusion under the
programs, Reporting and recordkeeping
agencies published the final common nonprocurement system affect a person’s
requirements.
rule after an opportunity for public eligibility for Federal procurement
comment, we are publishing these 2 CFR Part 215 contracts?
guidelines as interim final guidelines, 180.145 Does an exclusion under the
rather than proposing the substance for Accounting, Colleges and Federal procurement system affect a
comment again. For future updates to Universities, Grant programs, Hospitals, person’s eligibility to participate in
this guidance, we will propose Nonprofit organizations, Reporting and nonprocurement transactions?
substantive changes with an recordkeeping requirements. 180.150 Against whom may a Federal
opportunity for public comment, in Dated: August 8, 2005. agency take an exclusion action?
accordance with § 180.40 of the 180.155 How do I know if a person is
Joshua B. Bolten, excluded?
guidance. In soliciting comments on the
interim final guidance, we are not Director.
Subpart B—Covered Transactions
seeking to revisit substantive issues Authority and Issuance 180.200 What is a covered transaction?
raised by those earlier comments and
180.205 Why is it important to know if a
resolved by the agencies during ■For the reasons set forth above, the particular transaction is a covered
preparation of their final rule. However, Office of Management and Budget transaction?
we invite comments on any unintended amends 2 CFR, Subtitle A, as follows: 180.210 Which nonprocurement
changes we have made in the guidance transactions are covered transactions?
relative to the November 2003 common Chapter I—Office of Management and
180.215 Which nonprocurement
rule. Budget Governmentwide Guidance for transactions are not covered
Next steps. We will finalize the Grants and Agreements transactions?
guidance after resolving any comments 180.220 Are any procurement contracts
received on the interim final version ■ 1. A heading is added to chapter I to
included as covered transactions?
published in this notice. Each Federal read as set forth above. 180.225 How do I know if a transaction in
agency that is a signatory to the ■ 2. Part 180 is added to Chapter I, to which I may participate is a covered
common rule on nonprocurement read as follows: transaction?

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51866 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations

Subpart C—Responsibilities of Participants 180.440 What action may I take if a primary Subpart H—Debarment
Regarding Transactions Doing Business With tier participant knowingly does business 180.800 What are the causes for debarment?
Other Persons with an excluded or disqualified person?
180.805 What notice does the debarring
180.300 What must I do before I enter into 180.445 What action may I take if a primary
official give me if I am proposed for
a covered transaction with another tier participant fails to disclose the
information required under § 180.335? debarment?
person at the next lower tier? 180.810 When does a debarment take
180.305 May I enter into a covered 180.450 What may I do if a lower tier
participant fails to disclose the effect?
transaction with an excluded or 180.815 How may I contest a proposed
disqualified person? information required under § 180.355 to
the next higher tier? debarment?
180.310 What must I do if a Federal agency 180.820 How much time do I have to
excludes a person with whom I am Subpart E—Excluded Parties List System contest a proposed debarment?
already doing business in a covered
180.500 What is the purpose of the 180.825 What information must I provide to
transaction?
Excluded Parties List System (EPLS)? the debarring official if I contest the
180.315 May I use the services of an
180.505 Who uses the EPLS? proposed debarment?
excluded person as a principal under a
180.510 Who maintains the EPLS? 180.830 Under what conditions do I get an
covered transaction?
180.515 What specific information is in the additional opportunity to challenge the
180.320 Must I verify that principals of my
EPLS? facts on which the proposed debarment
covered transactions are eligible to
180.520 Who places the information into is based?
participate?
the EPLS? 180.835 Are debarment proceedings formal?
180.325 What happens if I do business with
180.525 Whom do I ask if I have questions 180.840 How is fact-finding conducted?
an excluded person in a covered
about a person in the EPLS? 180.845 What does the debarring official
transaction?
180.530 Where can I find the EPLS?
180.330 What requirements must I pass consider in deciding whether to debar
down to persons at lower tiers with Subpart F—General Principles Relating to me?
whom I intend to do business? Suspension and Debarment Actions 180.850 What is the standard of proof in a
180.600 How do suspension and debarment debarment action?
Disclosing Information—Primary Tier
actions start? 180.855 Who has the burden of proof in a
Participants
180.605 How does suspension differ from debarment action?
180.335 What information must I provide debarment? 180.860 What factors may influence the
before entering into a covered 180.610 What procedures does a Federal debarring official’s decision?
transaction with a Federal agency? agency use in suspension and debarment 180.865 How long may my debarment last?
180.340 If I disclose unfavorable actions? 180.870 When do I know if the debarring
information required under § 180.335 180.615 How does a Federal agency notify official debars me?
will I be prevented from participating in a person of a suspension or debarment 180.875 May I ask the debarring official to
the transaction? action? reconsider a decision to debar me?
180.345 What happens if I fail to disclose 180.620 Do Federal agencies coordinate 180.880 What factors may influence the
information required under § 180.335? suspension and debarment actions? debarring official during
180.350 What must I do if I learn of 180.625 What is the scope of a suspension reconsideration?
information required under § 180.335 or debarment?
after entering into a covered transaction 180.885 May the debarring official extend a
180.630 May a Federal agency impute the debarment?
with a Federal agency? conduct of one person to another?
Disclosing Information—Lower Tier 180.635 May a Federal agency settle a Subpart I—Definitions
Participants debarment or suspension action? 180.900 Adequate evidence.
180.640 May a settlement include a 180.905 Affiliate.
180.355 What information must I provide to voluntary exclusion?
a higher tier participant before entering 180.910 Agent or representative.
180.645 Do other Federal agencies know if
into a covered transaction with that 180.915 Civil judgment.
an agency agrees to a voluntary
participant? 180.920 Conviction.
exclusion?
180.360 What happens if I fail to disclose 180.925 Debarment.
information required under § 180.355? Subpart G—Suspension 180.930 Debarring official.
180.365 What must I do if I learn of 180.700 When may the suspending official 180.935 Disqualified.
information required under § 180.355 issue a suspension? 180.940 Excluded or exclusion.
after entering into a covered transaction 180.705 What does the suspending official 180.945 Excluded Parties List System
with a higher tier participant? consider in issuing a suspension? (EPLS).
180.710 When does a suspension take 180.950 Federal agency.
Subpart D—Responsibilities of Federal
effect? 180.955 Indictment.
Agency Officials Regarding Transactions
180.715 What notice does the suspending 180.960 Ineligible or ineligibility.
180.400 May I enter into a transaction with official give me if I am suspended? 180.965 Legal proceedings.
an excluded or disqualified person? 180.720 How may I contest a suspension? 180.970 Nonprocurement transaction.
180.405 May I enter into a covered 180.725 How much time do I have to 180.975 Notice.
transaction with a participant if a contest a suspension? 180.980 Participant.
principal of the transaction is excluded? 180.730 What information must I provide to 180.985 Person.
180.410 May I approve a participant’s use the suspending official if I contest the 180.990 Preponderance of the evidence.
of the services of an excluded person? suspension? 180.995 Principal.
180.415 What must I do if a Federal agency 180.735 Under what conditions do I get an 180.1000 Respondent.
excludes the participant or a principal additional opportunity to challenge the 180.1005 State.
after I enter into a covered transaction? facts on which the suspension is based? 180.1010 Suspending official.
180.420 May I approve a transaction with 180.740 Are suspension proceedings 180.1015 Suspension.
an excluded or disqualified person at a formal? 180.1020 Voluntary exclusion or
lower tier? 180.745 How is fact-finding conducted? voluntarily excluded.
180.425 When do I check to see if a person 180.750 What does the suspending official Appendix to Part 180—Covered Transactions
is excluded or disqualified? consider in deciding whether to continue
180.430 How do I check to see if a person or terminate my suspension? Authority: Sec. 2455, Pub. L. 103–355, 108
is excluded or disqualified? 180.755 When will I know whether the Stat. 3327; E.O. 12549, 3 CFR, 1986 Comp.,
180.435 What must I require of a primary suspension is continued or terminated? p.189; E.O. 12689, 3 CFR, 1989 Comp., p.
tier participant? 180.760 How long may my suspension last? 235.

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§ 180.5 What does this part do? Federal agency some discretion. (6) Include a subpart covering
This part provides Office of Specifically, the regulation must— disqualifications, as authorized in
Management and Budget (OMB) (1) Identify either the Federal agency § 180.45.
guidance for Federal agencies on the head or the title of the designated
official who is authorized to grant § 180.30 Where does a Federal agency
governmentwide debarment and
implement these guidelines?
suspension system for nonprocurement exceptions under § 180.135 to let an
programs and activities. excluded person participate in a Each Federal agency that participates
covered transaction. in the governmentwide nonprocurement
§ 180.10 How is this part organized? (2) State whether the agency includes debarment and suspension system must
This part is organized in two as covered transactions an additional issue a regulation implementing these
segments. tier of contracts awarded under covered guidelines within its chapter in subtitle
(a) Sections 180.5 through 180.45 nonprocurement transactions, as B of this title of the Code of Federal
contain general policy direction for permitted under § 180.220(c). Regulations.
Federal agencies’ use of the standards in (3) Identify the method(s) an agency
§ 180.35 By when must a Federal agency
subparts A through I of this part. official may use, when entering into a implement these guidelines?
(b) Subparts A through I of this part covered transaction with a primary tier
contain uniform governmentwide participant, to communicate to the Federal agencies must submit
standards that Federal agencies are to participant the requirements described proposed regulations to the OMB for
use to specify— in § 180.435. Examples of methods are review within nine months of the
(1) The types of transactions that are an award term that requires compliance issuance of these guidelines and issue
covered by the nonprocurement as a condition of the award; an final regulations within eighteen
debarment and suspension system; assurance of compliance obtained at months of these guidelines.
(2) The effects of an exclusion under time of application; or a certification. § 180.40 How are these guidelines
that nonprocurement system, including (4) State whether the Federal agency’s maintained?
reciprocal effects with the policy is to restrict participants’ The Interagency Committee on
governmentwide debarment and collection of certifications to verify that Debarment and Suspension established
suspension system for procurement; lower-tier participants are not excluded by section 4 of E.O. 12549 recommends
(3) The criteria and minimum due or disqualified (see § 180.300(b)). If it is to the OMB any needed revisions to the
process to be used in nonprocurement the policy, the regulation needs to guidelines in this part. The OMB
debarment and suspension actions; and require agency officials, when entering publishes proposed changes to the
(4) Related policies and procedures to into covered transactions with primary guidelines in the Federal Register for
ensure the effectiveness of those actions. tier participants, to communicate that public comment, considers comments
§ 180.15 To whom does the guidance policy. with the help of the Interagency
apply? (5) State whether the Federal agency Committee on Debarment and
specifies a particular method that Suspension, and issues the final
The guidance provides OMB guidance
participants must use to communicate guidelines.
only to Federal agencies. Publication of
compliance requirements to lower-tier
the guidance in the CFR does not
participants, as described in § 180.45 Do these guidelines cover
change its nature—it is guidance and persons who are disqualified, as well as
§ 180.330(a). If there is a specified
not regulation. Federal agencies’ those who are excluded from
method, the regulation needs to require
implementation of the guidance governs nonprocurement transactions?
agency officials, when entering into
the rights and responsibilities of other A Federal agency may add a subpart
covered transactions with primary tier
persons affected by the nonprocurement covering disqualifications to its
participants, to communicate that
debarment and suspension system. regulation implementing these
requirement.
§ 180.20 What must a Federal agency do to (c) May also, at the agency’s option: guidelines, but the guidelines in
implement these guidelines? (1) Identify any specific types of subparts A through I of this part—
As required by Section 3 of E.O. transactions that the Federal agency (a) Address disqualified persons only
12549, each Federal agency with includes as ‘‘nonprocurement to—
nonprocurement programs and activities transactions’’ in addition to the (1) Provide for their inclusion in the
covered by subparts A through I of the examples provided in § 180.970. EPLS; and
guidance must issue regulations (2) Identify any types of (2) State responsibilities of Federal
consistent with those subparts. nonprocurement transactions that the agencies and participants to check for
Federal agency exempts from coverage disqualified persons before entering into
§ 180.25 What must a Federal agency under these guidelines, as authorized covered transactions.
address in its implementation of the under § 180.330(g)(2). (b) Do not specify the—
guidance? (3) Identify specific examples of types (1) Transactions for which a
Each Federal agency implementing of individuals who would be disqualified person is ineligible. Those
regulation: ‘‘principals’’ under the Federal agency’s transactions vary on a case-by-case
(a) Must establish policies and nonprocurement programs and basis, because they depend on the
procedures for that agency’s transactions, in addition to the types of language of the specific statute,
nonprocurement debarment and individuals described at § 180.995. Executive order or regulation that
suspension programs and activities that (4) Specify the Federal agency’s caused the disqualification;
are consistent with the guidance. When procedures, if any, by which a (2) Entities to which a disqualification
adopted by a Federal agency, the respondent may appeal a suspension or applies; or
provisions of the guidance has debarment decision. (3) Process that a Federal agency uses
regulatory effect for that agency’s (5) Identify by title the officials to disqualify a person. Unlike exclusion
programs and activities. designated by the Federal agency head under subparts A through I of this part,
(b) Must address some matters for as debarring officials under § 180.930 or disqualification is frequently not a
which these guidelines give each suspending officials under § 180.1010. discretionary action that a Federal

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agency takes, and may include special Subpart A—General audience with special responsibilities,
procedures. as shown in the following table:
§ 180.100 How are subparts A through I
organized?
(a) Each subpart contains information
related to a broad topic or specific

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 sys-
tem.
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 nonprocurement transaction ........................................................................................ A, B, C and I.


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

§ 180.105 How is this part written? Executive Order 12689), or other (d) Federal agency official who is
(a) This part uses a ‘‘plain language’’ authorities. Disqualifications frequently authorized to enter into covered
format to make it easier for the general are not subject to the discretion of a transactions with non-Federal parties.
public and business community to use. Federal agency official, may have a
different scope than exclusions, or have § 180.125 What is the purpose of the
The section headings and text, often in
nonprocurement debarment and
the form of questions and answers, must special conditions that apply to the
suspension system?
be read together. disqualification; and
(b) Pronouns used within this part, (c) Ineligibility or ineligible, which (a) To protect the public interest, the
such as ‘‘I’’ and ‘‘you,’’ change from generally refers to a person who is either Federal Government ensures the
subpart to subpart depending on the excluded or disqualified. integrity of Federal programs by
audience being addressed. conducting business only with
§ 180.115 What do Subparts A through I of
(c) The ‘‘Covered Transactions’’ this part do?
responsible persons.
diagram in the appendix to this part Subparts A through I of this part (b) A Federal agency uses the
shows the levels or ‘‘tiers’’ at which a provide for reciprocal exclusion of nonprocurement debarment and
Federal agency may enforce an persons who have been excluded under suspension system to exclude from
exclusion. the Federal Acquisition Regulation, and Federal programs persons who are not
provide for the consolidated listing of presently responsible.
§ 180.110 Do terms in this part have
special meanings? all persons who are excluded, or (c) An exclusion is a serious action
This part uses terms throughout the disqualified by statute, executive order that a Federal agency may take only to
text that have special meaning. Those or other legal authority. protect the public interest. A Federal
terms are defined in subpart I of this agency may not exclude a person or
§ 180.120 Do subparts A through I of this
part. For example, three important terms part apply to me?
commodity for the purposes of
are— punishment.
Portions of subparts A through I of
(a) Exclusion or excluded, which this part (see table at § 180.100(b)) apply § 180.130 How does an exclusion restrict a
refers only to discretionary actions to you if you are a— person’s involvement in covered
taken by a suspending or debarring (a) Person who has been, is, or may transactions?
official under Executive Order 12549 reasonably be expected to be, a
and Executive Order 12689 or under the With the exceptions stated in
participant or principal in a covered
Federal Acquisition Regulation (48 CFR §§ 180.135, 315, and 420, a person who
transaction;
part 9, subpart 9.4); (b) Respondent (a person against is excluded by any Federal agency may
(b) Disqualification or disqualified, whom a Federal agency has initiated a not:
which refers to prohibitions under debarment or suspension action); (a) Be a participant in a Federal
specific statutes, executive orders (other (c) Federal agency debarring or agency transaction that is a covered
than Executive Order 12549 and suspending official; or transaction; or

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(b) Act as a principal of a person Subpart B—Covered Transactions governments or foreign governmental
participating in one of those covered entities.
transactions. § 180.200 What is a covered transaction? (b) A benefit to an individual as a
A covered transaction is a personal entitlement without regard to
§ 180.135 May a Federal agency grant an nonprocurement or procurement the individual’s present responsibility
exception to let an excluded person transaction that is subject to the (but benefits received in an individual’s
participate in a covered transaction?
prohibitions of this part. It may be a business capacity are not excepted). For
(a) A Federal agency head or designee transaction at— example, if a person receives social
may grant an exception permitting an (a) The primary tier, between a security benefits under the
excluded person to participate in a Federal agency and a person (see Supplemental Security Income
particular covered transaction. If the appendix to this part); or provisions of the Social Security Act, 42
agency head or designee grants an (b) A lower tier, between a participant U.S.C. 1301 et seq., those benefits are
exception, the exception must be in in a covered transaction and another not covered transactions and, therefore,
writing and state the reason(s) for person. are not affected if the person is
deviating from the governmentwide excluded.
policy in Executive Order 12549. § 180.205 Why is it important if a particular
transaction is a covered transaction? (c) Federal employment.
(b) An exception granted by one (d) A transaction that a Federal
Federal agency for an excluded person The importance of whether a
agency needs to respond to a national or
does not extend to the covered transaction is a covered transaction
agency-recognized emergency or
transactions of another Federal agency. depends upon who you are.
(a) As a participant in the transaction, disaster.
§ 180.140 Does an exclusion under the (e) A permit, license, certificate or
you have the responsibilities laid out in
nonprocurement system affect a person’s similar instrument issued as a means to
subpart C of this part. Those include
eligibility for Federal procurement regulate public health, safety or the
responsibilities to the person or Federal
contracts? environment, unless a Federal agency
agency at the next higher tier from
If any Federal agency excludes a whom you received the transaction, if specifically designates it to be a covered
person under Executive Order 12549 or any. They also include responsibilities transaction.
Executive Order 12689, on or after (f) An incidental benefit that results
if you subsequently enter into other
August 25, 1995, the excluded person is from ordinary governmental operations.
covered transactions with persons at the (g) Any other transaction if—
also ineligible for Federal procurement next lower tier.
transactions under the FAR. Therefore, (1) The application of an exclusion to
(b) As a Federal official who enters the transaction is prohibited by law; or
an exclusion under this part has into a primary tier transaction, you have
reciprocal effect in Federal procurement (2) A Federal agency’s regulation
the responsibilities laid out in subpart D exempts it from coverage under this
transactions. of this part. part.
§ 180.145 Does an exclusion under the
(c) As an excluded person, you may
Federal procurement system affect a not be a participant or principal in the § 180.220 Are any procurement contracts
person’s eligibility to participate in transaction unless— included as covered transactions?
nonprocurement transactions? (1) The person who entered into the (a) Covered transactions under this
If any Federal agency excludes a transaction with you allows you to part—
person under the FAR on or after continue your involvement in a (1) Do not include any procurement
August 25, 1995, the excluded person is transaction that predates your contracts awarded directly by a Federal
also ineligible to participate in Federal exclusion, as permitted under § 180.310 agency; but
agencies’ nonprocurement covered or § 180.415; or (2) Do include some procurement
(2) A Federal agency official obtains contracts awarded by non-Federal
transactions. Therefore, an exclusion
an exception from the agency head or participants in nonprocurement covered
under the FAR has reciprocal effect in
designee to allow you to be involved in transactions.
Federal nonprocurement transactions.
the transaction, as permitted under (b) Specifically, a contract for goods
§ 180.150 Against whom may a Federal § 180.135. or services is a covered transaction if
agency take an exclusion action? any of the following applies:
§ 180.210 Which nonprocurement
Given a cause that justifies an (1) The contract is awarded by a
transactions are covered transactions?
exclusion under this part, a Federal participant in a nonprocurement
All nonprocurement transactions, as transaction that is covered under
agency may exclude any person who
defined in § 180.970, are covered § 180.210, and the amount of the
has been, is, or may reasonably be
transactions unless listed in the contract is expected to equal or exceed
expected to be a participant or principal
exemptions under § 180.215.
in a covered transaction. $25,000.
§ 180.215 Which nonprocurement (2) The contract requires the consent
§ 180.155 How do I know if a person is transactions are not covered transactions? of an official of a Federal agency. In that
excluded? case, the contract, regardless of the
The following types of
Check the Governmentwide Excluded nonprocurement transactions are not amount, always is a covered transaction,
Parties List System (EPLS) to determine covered transactions: and it does not matter who awarded it.
whether a person is excluded. The (a) A direct award to— For example, it could be a subcontract
General Services Administration (GSA) (1) A foreign government or foreign awarded by a contractor at a tier below
maintains the EPLS and makes it governmental entity; a nonprocurement transaction, as shown
available, as detailed in Subpart E of (2) A public international in the appendix to this part.
this part. When a Federal agency takes organization; (3) The contract is for Federally-
an action to exclude a person under the (3) An entity owned (in whole or in required audit services.
nonprocurement or procurement part) or controlled by a foreign (c) A subcontract also is a covered
debarment and suspension system, the government; or transaction if,—
agency enters the information about the (4) Any other entity consisting wholly (1) It is awarded by a participant in a
excluded person into the EPLS. or partially of one or more foreign procurement transaction under a

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51870 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations

nonprocurement transaction of a terminate and the type of termination transaction requires you to use specific
Federal agency that extends the action, if any, only after a thorough methods.
coverage of paragraph (b)(1) of this review to ensure that the action is (b) Pass the requirement to comply
section to any additional tier of proper and appropriate. with this subpart to each person with
contracts (see the diagram in the (b) You may not renew or extend whom the participant enters into a
appendix to this part showing that covered transactions (other than no-cost covered transaction at the next lower
optional lower tier coverage); and time extensions) with any excluded tier.
(2) The value of the subcontract person, unless the Federal agency Disclosing Information—Primary Tier
exceeds or is expected to exceed responsible for the transaction grants an Participants
$25,000. exception under § 180.135.
§ 180.335 What information must I provide
§ 180.225 How do I know if a transaction § 180.315 May I use the services of an before entering into a covered transaction
in which I may participate is a covered excluded person as a principal under a with a Federal agency?
transaction? covered transaction?
Before you enter into a covered
As a participant in a transaction, you (a) You as a participant may continue transaction at the primary tier, you as
will know that it is a covered to use the services of an excluded the participant must notify the Federal
transaction because the Federal agency person as a principal under a covered agency office that is entering into the
regulations governing the transaction, transaction if you were using the transaction with you, if you know that
the appropriate Federal agency official services of that person in the transaction you or any of the principals for that
or participant at the next higher tier before the person was excluded. covered transaction:
who enters into the transaction with However, you are not required to (a) Are presently excluded or
you, will tell you that you must comply continue using that person’s services as disqualified;
with applicable portions of this part. a principal. You should make a decision (b) Have been convicted within the
about whether to discontinue that preceding three years of any of the
Subpart C—Responsibilities of person’s services only after a thorough offenses listed in § 180.800(a) or had a
Participants Regarding Transactions review to ensure that the action is civil judgment rendered against you for
Doing Business With Other Persons proper and appropriate. one of those offenses within that time
§ 180.300 What must I do before I enter (b) You may not begin to use the period;
into a covered transaction with another services of an excluded person as a (c) Are presently indicted for or
person at the next lower tier? principal under a covered transaction otherwise criminally or civilly charged
When you enter into a covered unless the Federal agency responsible by a governmental entity (Federal, State
transaction with another person at the for the transaction grants an exception or local) with commission of any of the
next lower tier, you must verify that the under § 180.135. offenses listed in § 180.800(a); or
person with whom you intend to do (d) Have had one or more public
§ 180.320 Must I verify that principals of transactions (Federal, State, or local)
business is not excluded or disqualified. my covered transactions are eligible to
You do this by: terminated within the preceding three
participate?
(a) Checking the EPLS; or years for cause or default.
(b) Collecting a certification from that Yes, you as a participant are
responsible for determining whether § 180.340 If I disclose unfavorable
person if allowed by the Federal agency information required under § 180.335, will I
responsible for the transaction; or any of your principals of your covered
transactions is excluded or disqualified be prevented from participating in the
(c) Adding a clause or condition to the transaction?
covered transaction with that person. from participating in the transaction.
You may decide the method and As a primary tier participant, your
§ 180.305 May I enter into a covered frequency by which you do so. You disclosure of unfavorable information
transaction with an excluded or disqualified may, but you are not required to, check about yourself or a principal under
person? the EPLS. § 180.335 will not necessarily cause a
(a) You as a participant may not enter Federal agency to deny your
into a covered transaction with an § 180.325 What happens if I do business participation in the covered transaction.
excluded person, unless the Federal with an excluded person in a covered The agency will consider the
transaction? information when it determines whether
agency responsible for the transaction
grants an exception under § 180.135. If as a participant you knowingly do to enter into the covered transaction.
(b) You may not enter into any business with an excluded person, the The agency will also consider any
transaction with a person who is Federal agency responsible for your additional information or explanation
disqualified from that transaction, transaction may disallow costs, annul or that you elect to submit with the
unless you have obtained an exception terminate the transaction, issue a stop disclosed information.
under the disqualifying statute, work order, debar or suspend you, or
take other remedies as appropriate. § 180.345 What happens if I fail to disclose
Executive order, or regulation. information required under § 180.335?
§ 180.310 What must I do if a Federal § 180.330 What requirements must I pass If a Federal agency later determines
agency excludes a person with whom I am down to persons at lower tiers with whom that you failed to disclose information
already doing business in a covered I intend to do business? under § 180.335 that you knew at the
transaction? Before entering into a covered time you entered into the covered
(a) You as a participant may continue transaction with a participant at the transaction, the agency may—
covered transactions with an excluded next lower tier, you must require that (a) Terminate the transaction for
person if the transactions were in participant to— material failure to comply with the
existence when the agency excluded the (a) Comply with this subpart as a terms and conditions of the transaction;
person. However, you are not required condition of participation in the or
to continue the transactions, and you transaction. You may do so using any (b) Pursue any other available
may consider termination. You should method(s), unless the regulation of the remedies, including suspension and
make a decision about whether to Federal agency responsible for the debarment.

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§ 180.350 What must I do if I learn of disqualified from that transaction, § 180.425 When do I check to see if a
information required under § 180.335 after unless you obtain a waiver or exception person is excluded or disqualified?
entering into a covered transaction with a under the statute, Executive order, or As a Federal agency official, you must
Federal agency? check to see if a person is excluded or
regulation that is the basis for the
At any time after you enter into a person’s disqualification. disqualified before you—
covered transaction, you must give (a) Enter into a primary tier covered
immediate written notice to the Federal § 180.405 May I enter into a covered transaction;
agency office with which you entered transaction with a participant if a principal (b) Approve a principal in a primary
into the transaction if you learn either of the transaction is excluded? tier covered transaction;
that— As a Federal agency official, you may (c) Approve a lower tier participant if
(a) You failed to disclose information not enter into a covered transaction with your agency’s approval of the lower tier
earlier, as required by § 180.335; or a participant if you know that a participant is required; or
(b) Due to changed circumstances, principal of the transaction is excluded, (d) Approve a principal in connection
you or any of the principals for the unless you obtain an exception under with a lower tier transaction if your
transaction now meet any of the criteria § 180.135. agency’s approval of the principal is
in § 180.335. required.
§ 180.410 May I approve a participant’s
Disclosing Information—Lower Tier § 180.430 How do I check to see if a
use of the services of an excluded person?
Participants person is excluded or disqualified?
After entering into a covered You check to see if a person is
§ 180.355 What information must I provide
transaction with a participant, you as a excluded or disqualified in two ways:
to a higher tier participant before entering
into a covered transaction with that Federal agency official may not approve (a) You as a Federal agency official
participant? a participant’s use of an excluded must check the EPLS when you take any
Before you enter into a covered person as a principal under that action listed in § 180.425.
transaction with a person at the next transaction, unless you obtain an (b) You must review information that
higher tier, you as a lower tier exception under § 180.135. a participant gives you, as required by
participant must notify that person if § 180.415 What must I do if a Federal
§ 180.335, about its status or the status
you know that you or any of the agency excludes the participant or a of the principals of a transaction.
principals are presently excluded or principal after I enter into a covered § 180.435 What must I require of a primary
disqualified. transaction? tier participant?
§ 180.360 What happens if I fail to disclose (a) You as a Federal agency official You as a Federal agency official must
information required under § 180.355? may continue covered transactions with require each participant in a primary
If a Federal agency later determines an excluded person, or under which an tier covered transaction to—
that you failed to tell the person at the excluded person is a principal, if the (a) Comply with subpart C of this part
higher tier that you were excluded or transactions were in existence when the as a condition of participation in the
disqualified at the time you entered into person was excluded. You are not transaction; and
the covered transaction with that required to continue the transactions, (b) Communicate the requirement to
person, the agency may pursue any however, and you may consider comply with Subpart C of this part to
available remedies, including termination. You should make a persons at the next lower tier with
suspension and debarment. decision about whether to terminate and whom the primary tier participant
the type of termination action, if any, enters into covered transactions.
§ 180.365 What must I do if I learn of only after a thorough review to ensure
information required under § 180.355 after § 180.440 What action may I take if a
that the action is proper. primary tier participant knowingly does
entering into a covered transaction with a
higher tier participant? (b) You may not renew or extend business with an excluded or disqualified
At any time after you enter into a covered transactions (other than no-cost person?
lower tier covered transaction with a time extensions) with any excluded If a participant knowingly does
person at a higher tier, you must person, or under which an excluded business with an excluded or
provide immediate written notice to that person is a principal, unless you obtain disqualified person, you as a Federal
person if you learn either that— an exception under § 180.135. agency official may refer the matter for
(a) You failed to disclose information suspension and debarment
§ 180.420 May I approve a transaction with consideration. You may also disallow
earlier, as required by § 180.355; or an excluded or disqualified person at a
(b) Due to changed circumstances, lower tier?
costs, annul or terminate the
you or any of the principals for the transaction, issue a stop work order, or
transaction now meet any of the criteria If a transaction at a lower tier is take any other appropriate remedy.
in § 180.355. subject to your approval, you as a
Federal agency official may not § 180.445 What action may I take if a
primary tier participant fails to disclose the
Subpart D—Responsibilities of Federal approve—
information required under § 180.335?
Agency Officials Regarding (a) A covered transaction with a
Transactions If you as a Federal agency official
person who is currently excluded, determine that a participant failed to
§ 180.400 May I enter into a transaction unless you obtain an exception under disclose information, as required by
with an excluded or disqualified person? § 180.135; or § 180.335, at the time it entered into a
(a) You as a Federal agency official (b) A transaction with a person who covered transaction with you, you
may not enter into a covered transaction is disqualified from that transaction, may—
with an excluded person unless you unless you obtain a waiver or exception (a) Terminate the transaction for
obtain an exception under § 180.135. under the statute, Executive order, or material failure to comply with the
(b) You may not enter into any regulation that is the basis for the terms and conditions of the transaction;
transaction with a person who is person’s disqualification. or

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(b) Pursue any other available debarment and suspension system, the disqualified person, including the social
remedies, including suspension and agency enters the information about the security number (SSN) for an
debarment. excluded person into the EPLS. individual, if the number is available
and may be disclosed under law;
§ 180.450 What action may I take if a lower § 180.515 What specific information is in
tier participant fails to disclose the the EPLS? (c) Information about an excluded or
information required under § 180.355 to the (a) At a minimum, the EPLS disqualified person, generally within
next higher tier?
indicates— five working days, after—
If you as a Federal agency official (1) The full name (where available) (1) Taking an exclusion action;
determine that a lower tier participant and address of each excluded and (2) Modifying or rescinding an
failed to disclose information, as disqualified person, in alphabetical exclusion action;
required by § 180.355, at the time it order, with cross references if more than
entered into a covered transaction with (3) Finding that a person is
one name is involved in a single action; disqualified; or
a participant at the next higher tier, you (2) The type of action;
may pursue any remedies available to (3) The cause for the action; (4) Finding that there has been a
you, including the initiation of a (4) The scope of the action; change in the status of a person who is
suspension or debarment action. (5) Any termination date for the listed as disqualified.
action; § 180.525 Whom do I ask if I have
Subpart E—Excluded Parties List (6) The Federal agency and name and questions about a person in the EPLS?
System telephone number of the agency point of
contact for the action; and If you have questions about a listed
§ 180.500 What is the purpose of the person in the EPLS, ask the point of
Excluded Parties List System (EPLS)? (7) The Dun and Bradstreet Number
(DUNS), or other similar code approved contact for the Federal agency that
The EPLS is a widely available source placed the person’s name into the EPLS.
of the most current information about by the GSA, of the excluded or
disqualified person, if available. You may find the agency point of
persons who are excluded or contact from the EPLS.
disqualified from covered transactions. (b)(1) The database for the EPLS
includes a field for the Taxpayer
§ 180.530 Where can I find the EPLS?
§ 180.505 Who uses the EPLS? Identification Number (TIN) (the social
(a) Federal agency officials use the security number (SSN) for an You may access the EPLS through the
EPLS to determine whether to enter into individual) of an excluded or Internet, currently at http://
a transaction with a person, as required disqualified person. epls.arnet.gov or http://www.epls.gov.
under § 180.430. (2) Agencies disclose the SSN of an
(b) Participants also may, but are not individual to verify the identity of an Subpart F—General Principles Relating
required to, use the EPLS to determine individual, only if permitted under the to Suspension and Debarment Actions
if— Privacy Act of 1974 and, if appropriate, § 180.600 How do suspension and
(1) Principals of their transactions are the Computer Matching and Privacy debarment actions start?
excluded or disqualified, as required Protection Act of 1988, as codified in 5
under § 180.320; or U.S.C. 552(a). When Federal agency officials receive
(2) Persons with whom they are information from any source concerning
entering into covered transactions at the § 180.520 Who places the information into a cause for suspension or debarment,
the EPLS? they will promptly report it and the
next lower tier are excluded or
disqualified. Federal agency officials who take agency will investigate. The officials
(c) The EPLS is available to the actions to exclude persons under this refer the question of whether to suspend
general public. part or officials who are responsible for or debar you to their suspending or
identifying disqualified persons must debarring official for consideration, if
§ 180.510 Who maintains the EPLS? enter the following information about appropriate.
The General Services Administration those persons into the EPLS:
(GSA) maintains the EPLS. When a (a) Information required by § 180.605 How does suspension differ
from debarment?
Federal agency takes an action to § 180.515(a);
exclude a person under the (b) The Taxpayer Identification Suspension differs from debarment in
nonprocurement or procurement Number (TIN) of the excluded or that—

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

(a) Imposes suspension as a temporary status of in eligibility for pro- Imposes debarment for a specified period as a final determination that
curement and nonprocurement transactions, pending completion of a person is not presently responsible.
an investigation or legal proceedings.
(b) Must—
(1) Have adequate evidence that there may be a cause for debar-
ment of a person; and
(2) Conclude that immediate action is necessary to protect the Must conclude, based on a preponderance of the evidence, that the
Federal interest person has engaged in conduct that warrants debarment.
(c) Usually imposes the suspension first, and then promptly notifies the Imposes debarment after giving the respondent notice of the action
suspended person, giving the person an opportunity to contest the and an opportunity to contest the proposed debarment.
suspension and have it lifted.

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§ 180.610 What procedures does a Federal § 180.630 May a Federal agency impute the § 180.645 Do other Federal agencies know
agency use in suspension and debarment conduct of one person to another? if an agency agrees to a voluntary
actions? exclusion?
For purposes of actions taken under
In deciding whether to suspend or (a) Yes, the Federal agency agreeing to
this part, a Federal agency may impute the voluntary exclusion enters
debar you, a Federal agency handles the conduct as follows:
actions as informally as practicable, information about it into the EPLS.
consistent with principles of (a) Conduct imputed from an (b) Also, any agency or person may
fundamental fairness. individual to an organization. A Federal contact the Federal agency that agreed
agency may impute the fraudulent, to the voluntary exclusion to find out
(a) For suspension actions, a Federal the details of the voluntary exclusion.
criminal, or other improper conduct of
agency uses the procedures in this
subpart and Subpart G of this part. any officer, director, shareholder,
partner, employee, or other individual Subpart G—Suspension
(b) For debarment actions, a Federal associated with an organization, to that
agency uses the procedures in this § 180.700 When may the suspending
organization when the improper official issue a suspension?
subpart and Subpart H of this part.
conduct occurred in connection with Suspension is a serious action. Using
§ 180.615 How does a Federal agency the individual’s performance of duties the procedures of this subpart and
notify a person of a suspension or for or on behalf of that organization, or Subpart F of this part, the suspending
debarment action? with the organization’s knowledge, official may impose suspension only
(a) The suspending or debarring approval or acquiescence. The when that official determines that—
official sends a written notice to the last organization’s acceptance of the benefits (a) There exists an indictment for, or
known street address, facsimile number, derived from the conduct is evidence of other adequate evidence to suspect, an
or e-mail address of— knowledge, approval or acquiescence. offense listed under § 180.800(a), or
(b) There exists adequate evidence to
(1) You or your identified counsel; or (b) Conduct imputed from an
suspect any other cause for debarment
(2) Your agent for service of process, organization to an individual, or
listed under § 180.800(b) through (d);
or any of your partners, officers, between individuals. A Federal agency and
directors, owners, or joint venturers. may impute the fraudulent, criminal, or (c) Immediate action is necessary to
(b) The notice is effective if sent to other improper conduct of any protect the public interest.
any of these persons. organization to an individual, or from
one individual to another individual, if § 180.705 What does the suspending
§ 180.620 Do Federal agencies coordinate the individual to whom the improper official consider in issuing a suspension?
suspension and debarment actions? conduct is imputed either participated (a) In determining the adequacy of the
Yes, when more than one Federal in, had knowledge of, or reason to know evidence to support the suspension, the
agency has an interest in a suspension of the improper conduct. suspending official considers how much
or debarment, the agencies may information is available, how credible it
(c) Conduct imputed from one
consider designating one agency as the is given the circumstances, whether or
organization to another organization. A not important allegations are
lead agency for making the decision. Federal agency may impute the
Agencies are encouraged to establish corroborated, and what inferences can
fraudulent, criminal, or other improper reasonably be drawn as a result. During
methods and procedures for conduct of one organization to another
coordinating their suspension and this assessment, the suspending official
organization when the improper may examine the basic documents,
debarment actions. conduct occurred in connection with a including grants, cooperative
§ 180.625 What is the scope of a partnership, joint venture, joint agreements, loan authorizations,
suspension or debarment? application, association or similar contracts, and other relevant
If you are suspended or debarred, the arrangement, or when the organization documents.
suspension or debarment is effective as to whom the improper conduct is (b) An indictment, conviction, civil
follows: imputed has the power to direct, judgment, or other official findings by
manage, control or influence the Federal, State, or local bodies that
(a) Your suspension or debarment
activities of the organization responsible determine factual and/or legal matters,
constitutes suspension or debarment of
for the improper conduct. Acceptance of constitutes adequate evidence for
all of your divisions and other
the benefits derived from the conduct is purposes of suspension actions.
organizational elements from all
evidence of knowledge, approval or (c) In deciding whether immediate
covered transactions, unless the
acquiescence. action is needed to protect the public
suspension or debarment decision is
interest, the suspending official has
limited— § 180.635 May a Federal agency settle a wide discretion. For example, the
(1) By its terms to one or more debarment or suspension action? suspending official may infer the
specifically identified individuals, necessity for immediate action to
Yes, a Federal agency may settle a
divisions, or other organizational protect the public interest either from
elements; or debarment or suspension action at any
time if it is in the best interest of the the nature of the circumstances giving
(2) To specific types of transactions. Federal Government. rise to a cause for suspension or from
(b) Any affiliate of a participant may potential business relationships or
be included in a suspension or § 180.640 May a settlement include a involvement with a program of the
debarment action if the suspending or voluntary exclusion? Federal Government.
debarring official— Yes, if a Federal agency enters into a § 180.710 When does a suspension take
(1) Officially names the affiliate in the settlement with you in which you agree effect?
notice; and to be excluded, it is called a voluntary A suspension is effective when the
(2) Gives the affiliate an opportunity exclusion and has governmentwide suspending official signs the decision to
to contest the action. effect. suspend.

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§ 180.715 What notice does the agency sends it if the facsimile is on the same facts as the suspension
suspending official give me if I am undeliverable; or would be prejudiced by conducting fact-
suspended? (3) When delivered, if the agency finding.
After deciding to suspend you, the sends the notice by e-mail or five days (b) You will have an opportunity to
suspending official promptly sends you after the agency sends it if the e-mail is challenge the facts if the suspending
a Notice of Suspension advising you— undeliverable. official determines that—
(a) That you have been suspended; (1) The conditions in paragraph (a) of
(b) That your suspension is based § 180.730 What information must I provide
this section do not exist; and
on— to the suspending official if I contest the
suspension? (2) Your presentation in opposition
(1) An indictment; raises a genuine dispute over facts
(2) A conviction; (a) In addition to any information and material to the suspension.
(3) Other adequate evidence that you argument in opposition, as a respondent (c) If you have an opportunity to
have committed irregularities which your submission to the suspending challenge disputed material facts under
seriously reflect on the propriety of official must identify— this section, the suspending official or
further Federal Government dealings (1) Specific facts that contradict the designee must conduct additional
with you; or statements contained in the Notice of proceedings to resolve those facts.
(4) Conduct of another person that has Suspension. A general denial is
been imputed to you, or your affiliation insufficient to raise a genuine dispute § 180.740 Are suspension proceedings
with a suspended or debarred person; over facts material to the suspension; formal?
(c) Of any other irregularities in terms (2) All existing, proposed, or prior (a) Suspension proceedings are
sufficient to put you on notice without exclusions under regulations conducted in a fair and informal
disclosing the Federal Government’s implementing Executive Order 12549 manner. The suspending official may
evidence; and all similar actions taken by Federal, use flexible procedures to allow you to
(d) Of the cause(s) upon which the State, or local agencies, including present matters in opposition. In so
suspending official relied under administrative agreements that affect doing, the suspending official is not
§ 180.700 for imposing suspension; only those agencies; required to follow formal rules of
(e) That your suspension is for a (3) All criminal and civil proceedings evidence or procedure in creating an
temporary period pending the not included in the Notice of official record upon which the official
completion of an investigation or Suspension that grew out of facts will base a final suspension decision.
resulting legal or debarment relevant to the cause(s) stated in the (b) You as a respondent or your
proceedings; notice; and representative must submit any
(f) Of the applicable provisions of this (4) All of your affiliates. documentary evidence you want the
subpart, Subpart F of this part, and any (b) If you fail to disclose this suspending official to consider.
other agency procedures governing information, or provide false
information, the Federal agency taking § 180.745 How is fact-finding conducted?
suspension decisionmaking; and
(g) Of the governmentwide effect of the action may seek further criminal, (a) If fact-finding is conducted—
your suspension from procurement and civil or administrative action against (1) You may present witnesses and
nonprocurement programs and you, as appropriate. other evidence, and confront any
activities. witness presented; and
§ 180.735 Under what conditions do I get (2) The fact-finder must prepare
§ 180.720 How may I contest a an additional opportunity to challenge the
facts on which the suspension is based?
written findings of fact for the record.
suspension? (b) A transcribed record of fact-
If you as a respondent wish to contest (a) You as a respondent will not have finding proceedings must be made,
a suspension, you or your representative an additional opportunity to challenge unless you as a respondent and the
must provide the suspending official the facts if the suspending official Federal agency agree to waive it in
with information in opposition to the determines that— advance. If you want a copy of the
suspension. You may do this orally or (1) Your suspension is based upon an transcribed record, you may purchase it.
in writing, but any information indictment, conviction, civil judgment,
provided orally that you consider or other finding by a Federal, State, or § 180.750 What does the suspending
important must also be submitted in local body for which an opportunity to official consider in deciding whether to
contest the facts was provided; continue or terminate my suspension?
writing for the official record.
(2) Your presentation in opposition (a) The suspending official bases the
§ 180.725 How much time do I have to contains only general denials to decision on all information contained in
contest a suspension? information contained in the Notice of the official record. The record
(a) As a respondent you or your Suspension; includes—
representative must either send, or make (3) The issues raised in your (1) All information in support of the
arrangements to appear and present, the presentation in opposition to the suspending official’s initial decision to
information and argument to the suspension are not factual in nature, or suspend you;
suspending official within 30 days after are not material to the suspending (2) Any further information and
you receive the Notice of Suspension. official’s initial decision to suspend, or argument presented in support of, or
(b) The Federal agency taking the the official’s decision whether to opposition to, the suspension; and
action considers the notice to be continue the suspension; or (3) Any transcribed record of fact-
received by you— (4) On the basis of advice from the finding proceedings.
(1) When delivered, if the agency Department of Justice, an office of the (b) The suspending official may refer
mails the notice to the last known street United States Attorney, a State attorney disputed material facts to another
address, or five days after the agency general’s office, or a State or local official for findings of fact. The
sends it if the letter is undeliverable; prosecutor’s office, that substantial suspending official may reject any
(2) When sent, if the agency sends the interests of the government in pending resulting findings, in whole or in part,
notice by facsimile or five days after the or contemplated legal proceedings based only after specifically determining them

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to be arbitrary, capricious, or clearly directly affects your present any other agency procedures governing
erroneous. responsibility; debarment; and
(b) Violation of the terms of a public (e) Of the governmentwide effect of a
§ 180.755 When will I know whether the agreement or transaction so serious as to debarment from procurement and
suspension is continued or terminated? affect the integrity of an agency nonprocurement programs and
The suspending official must make a program, such as— activities.
written decision whether to continue, (1) A willful failure to perform in
modify, or terminate your suspension accordance with the terms of one or § 180.810 When does a debarment take
within 45 days of closing the official more public agreements or transactions; effect?
record. The official record closes upon (2) A history of failure to perform or Unlike suspension, a debarment is not
the suspending official’s receipt of final of unsatisfactory performance of one or effective until the debarring official
submissions, information and findings more public agreements or transactions; issues a decision. The debarring official
of fact, if any. The suspending official or does not issue a decision until the
may extend that period for good cause. (3) A willful violation of a statutory or respondent has had an opportunity to
regulatory provision or requirement contest the proposed debarment.
§ 180.760 How long may my suspension applicable to a public agreement or
last? § 180.815 How may I contest a proposed
transaction;
(a) If legal or debarment proceedings (c) Any of the following causes: debarment?
are initiated at the time of, or during (1) A nonprocurement debarment by If you as a respondent wish to contest
your suspension, the suspension may any Federal agency taken before October a proposed debarment, you or your
continue until the conclusion of those 1, 1988, or a procurement debarment by representative must provide the
proceedings. However, if proceedings any Federal agency taken pursuant to 48 debarring official with information in
are not initiated, a suspension may not CFR part 9, subpart 9.4, before August opposition to the proposed debarment.
exceed 12 months. 25, 1995; You may do this orally or in writing, but
(b) The suspending official may (2) Knowingly doing business with an any information provided orally that
extend the 12 month limit under ineligible person, except as permitted you consider important must also be
paragraph (a) of this section for an under § 180.135; submitted in writing for the official
additional 6 months if an office of a U.S. (3) Failure to pay a single substantial record.
Assistant Attorney General, U.S. debt, or a number of outstanding debts
Attorney, or other responsible § 180.820 How much time do I have to
(including disallowed costs and
contest a proposed debarment?
prosecuting official requests an overpayments, but not including sums
extension in writing. In no event may a owed the Federal Government under the (a) As a respondent you or your
suspension exceed 18 months without Internal Revenue Code) owed to any representative must either send, or make
initiating proceedings under paragraph Federal agency or instrumentality, arrangements to appear and present, the
(a) of this section. provided the debt is uncontested by the information and argument to the
(c) The suspending official must debtor or, if contested, provided that the debarring official within 30 days after
notify the appropriate officials under debtor’s legal and administrative you receive the Notice of Proposed
paragraph (b) of this section of an remedies have been exhausted; Debarment.
impending termination of a suspension (4) Violation of a material provision of (b) The Federal agency taking the
at least 30 days before the 12 month a voluntary exclusion agreement entered action considers the Notice of Proposed
period expires to allow the officials an into under § 180.640 or of any Debarment to be received by you—
opportunity to request an extension. settlement of a debarment or suspension (1) When delivered, if the agency
action; or mails the notice to the last known street
Subpart H—Debarment (5) Violation of the provisions of the address, or five days after the agency
Drug-Free Workplace Act of 1988 (41 sends it if the letter is undeliverable;
§ 180.800 What are the causes for (2) When sent, if the agency sends the
debarment? U.S.C. 701); or
(d) Any other cause of so serious or notice by facsimile or five days after the
A Federal agency may debar a person agency sends it if the facsimile is
compelling a nature that it affects your
for— undeliverable; or
present responsibility.
(a) Conviction of or civil judgment (3) When delivered, if the agency
for— § 180.805 What notice does the debarring sends the notice by e-mail or five days
(1) Commission of fraud or a criminal official give me if I am proposed for after the agency sends it if the e-mail is
offense in connection with obtaining, debarment? undeliverable.
attempting to obtain, or performing a After consideration of the causes in
public or private agreement or § 180.800, if the debarring official § 180.825 What information must I provide
transaction; proposes to debar you, the official sends to the debarring official if I contest the
(2) Violation of Federal or State you a Notice of Proposed Debarment, proposed debarment?
antitrust statutes, including those pursuant to § 180.615, advising you— (a) In addition to any information and
proscribing price fixing between (a) That the debarring official is argument in opposition, as a respondent
competitors, allocation of customers considering debarring you; your submission to the debarring official
between competitors, and bid rigging; (b) Of the reasons for proposing to must identify—
(3) Commission of embezzlement, debar you in terms sufficient to put you (1) Specific facts that contradict the
theft, forgery, bribery, falsification or on notice of the conduct or transactions statements contained in the Notice of
destruction of records, making false upon which the proposed debarment is Proposed Debarment. Include any
statements, tax evasion, receiving stolen based; information about any of the factors
property, making false claims, or (c) Of the cause(s) under § 180.800 listed in § 180.860. A general denial is
obstruction of justice; or upon which the debarring official relied insufficient to raise a genuine dispute
(4) Commission of any other offense for proposing your debarment; over facts material to the debarment;
indicating a lack of business integrity or (d) Of the applicable provisions of (2) All existing, proposed, or prior
business honesty that seriously and this subpart, Subpart F of this part, and exclusions under regulations

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implementing Executive Order 12549 § 180.840 How is fact-finding conducted? official may consider in determining
and all similar actions taken by Federal, (a) If fact-finding is conducted— whether to debar you and the length of
State, or local agencies, including (1) You may present witnesses and your debarment period. The debarring
administrative agreements that affect other evidence, and confront any official may consider other factors if
only those agencies; witness presented; and appropriate in light of the circumstances
(3) All criminal and civil proceedings (2) The fact-finder must prepare of a particular case. The existence or
not included in the Notice of Proposed written findings of fact for the record. nonexistence of any factor, such as one
Debarment that grew out of facts (b) A transcribed record of fact- of those set forth in this section, is not
relevant to the cause(s) stated in the finding proceedings must be made, necessarily determinative of your
notice; and unless you as a respondent and the present responsibility. In making a
(4) All of your affiliates. Federal agency agree to waive it in debarment decision, the debarring
advance. If you want a copy of the official may consider the following
(b) If you fail to disclose this
transcribed record, you may purchase it. factors:
information, or provide false
information, the Federal agency taking § 180.845 What does the debarring official (a) The actual or potential harm or
the action may seek further criminal, consider in deciding whether to debar me? impact that results or may result from
civil or administrative action against (a) The debarring official may debar the wrongdoing.
you, as appropriate. you for any of the causes in § 180.800. (b) The frequency of incidents and/or
However, the official need not debar duration of the wrongdoing.
§ 180.830 Under what conditions do I get (c) Whether there is a pattern or prior
you even if a cause for debarment exists.
an additional opportunity to challenge the history of wrongdoing. For example, if
facts on which the proposed debarment is The official may consider the
you have been found by another Federal
based? seriousness of your acts or omissions
agency or a State agency to have
and the mitigating or aggravating factors
(a) You as a respondent will not have engaged in wrongdoing similar to that
set forth at § 180.860.
an additional opportunity to challenge (b) The debarring official bases the found in the debarment action, the
the facts if the debarring official decision on all information contained in existence of this fact may be used by the
determines that— the official record. The record debarring official in determining that
(1) Your debarment is based upon a includes— you have a pattern or prior history of
conviction or civil judgment; (1) All information in support of the wrongdoing.
(2) Your presentation in opposition debarring official’s proposed debarment; (d) Whether you are or have been
contains only general denials to (2) Any further information and excluded or disqualified by an agency of
information contained in the Notice of argument presented in support of, or in the Federal Government or have not
Proposed Debarment; or opposition to, the proposed debarment; been allowed to participate in State or
(3) The issues raised in your and local contracts or assistance agreements
presentation in opposition to the (3) Any transcribed record of fact- on a basis of conduct similar to one or
proposed debarment are not factual in finding proceedings. more of the causes for debarment
nature, or are not material to the (c) The debarring official may refer specified in this part.
disputed material facts to another (e) Whether you have entered into an
debarring official’s decision whether to
official for findings of fact. The administrative agreement with a Federal
debar.
debarring official may reject any agency or a State or local government
(b) You will have an additional
resultant findings, in whole or in part, that is not governmentwide but is based
opportunity to challenge the facts if the
only after specifically determining them on conduct similar to one or more of the
debarring official determines that—
to be arbitrary, capricious, or clearly causes for debarment specified in this
(1) The conditions in paragraph (a) of part.
erroneous.
this section do not exist; and (f) Whether and to what extent you
(2) Your presentation in opposition § 180.850 What is the standard of proof in planned, initiated, or carried out the
raises a genuine dispute over facts a debarment action? wrongdoing.
material to the proposed debarment. (a) In any debarment action, the (g) Whether you have accepted
(c) If you have an opportunity to Federal agency must establish the cause responsibility for the wrongdoing and
challenge disputed material facts under for debarment by a preponderance of the recognize the seriousness of the
this section, the debarring official or evidence. misconduct that led to the cause for
designee must conduct additional (b) If the proposed debarment is based debarment.
proceedings to resolve those facts. upon a conviction or civil judgment, the (h) Whether you have paid or agreed
standard of proof is met. to pay all criminal, civil and
§ 180.835 Are debarment proceedings administrative liabilities for the
formal? § 180.855 Who has the burden of proof in
a debarment action? improper activity, including any
(a) Debarment proceedings are investigative or administrative costs
conducted in a fair and informal (a) The Federal agency has the burden
to prove that a cause for debarment incurred by the government, and have
manner. The debarring official may use made or agreed to make full restitution.
flexible procedures to allow you as a exists.
(b) Once a cause for debarment is (i) Whether you have cooperated fully
respondent to present matters in with the government agencies during
established, you as a respondent have
opposition. In so doing, the debarring the investigation and any court or
the burden of demonstrating to the
official is not required to follow formal administrative action. In determining
satisfaction of the debarring official that
rules of evidence or procedure in the extent of cooperation, the debarring
you are presently responsible and that
creating an official record upon which official may consider when the
debarment is not necessary.
the official will base the decision cooperation began and whether you
whether to debar. § 180.860 What factors may influence the disclosed all pertinent information
(b) You or your representative must debarring official’s decision? known to you.
submit any documentary evidence you This section lists the mitigating and (j) Whether the wrongdoing was
want the debarring official to consider. aggravating factors that the debarring pervasive within your organization.

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(k) The kind of positions held by the (1) Not to debar you; or § 180.905 Affiliate.
individuals involved in the wrongdoing. (2) To debar you. In this event, the Persons are affiliates of each other if,
(l) Whether your organization took notice: directly or indirectly, either one
appropriate corrective action or (i) Refers to the Notice of Proposed controls or has the power to control the
remedial measures, such as establishing Debarment; other or a third person controls or has
ethics training and implementing (ii) Specifies the reasons for your the power to control both. The ways a
programs to prevent recurrence. debarment; Federal agency may determine control
(m) Whether your principals tolerated (iii) States the period of your include, but are not limited to—
the offense. debarment, including the effective (a) Interlocking management or
(n) Whether you brought the activity dates; and
ownership;
cited as a basis for the debarment to the (iv) Advises you that your debarment
(b) Identity of interests among family
attention of the appropriate government is effective for covered transactions and
members;
agency in a timely manner. contracts that are subject to the Federal
(c) Shared facilities and equipment;
(o) Whether you have fully Acquisition Regulation (48 CFR chapter
(d) Common use of employees; or
investigated the circumstances 1), throughout the executive branch of
(e) A business entity which has been
surrounding the cause for debarment the Federal Government unless an
agency head or an authorized designee organized following the exclusion of a
and, if so, made the result of the
grants an exception. person which has the same or similar
investigation available to the debarring
management, ownership, or principal
official.
(p) Whether you had effective § 180.875 May I ask the debarring official employees as the excluded person.
to reconsider a decision to debar me?
standards of conduct and internal § 180.910 Agent or representative.
control systems in place at the time the Yes, as a debarred person you may ask
the debarring official to reconsider the Agent or representative means any
questioned conduct occurred. person who acts on behalf of, or who is
(q) Whether you have taken debarment decision or to reduce the
time period or scope of the debarment. authorized to commit a participant in a
appropriate disciplinary action against covered transaction.
the individuals responsible for the However, you must put your request in
activity which constitutes the cause for writing and support it with § 180.915 Civil judgment.
debarment. documentation.
Civil judgment means the disposition
(r) Whether you have had adequate § 180.880 What factors may influence the of a civil action by any court of
time to eliminate the circumstances debarring official during reconsideration? competent jurisdiction, whether by
within your organization that led to the The debarring official may reduce or verdict, decision, settlement,
cause for the debarment. terminate your debarment based on— stipulation, other disposition which
(s) Other factors that are appropriate (a) Newly discovered material creates a civil liability for the
to the circumstances of a particular case. evidence; complained of wrongful acts, or a final
§ 180.865 How long may my debarment (b) A reversal of the conviction or determination of liability under the
last? civil judgment upon which your Program Fraud Civil Remedies Act of
(a) If the debarring official decides to debarment was based; 1988 (31 U.S.C. 3801–3812).
debar you, your period of debarment (c) A bona fide change in ownership
or management; § 180.920 Conviction.
will be based on the seriousness of the
(d) Elimination of other causes for Conviction means—
cause(s) upon which your debarment is
which the debarment was imposed; or (a) A judgment or any other
based. Generally, debarment should not (e) Other reasons the debarring official
exceed three years. However, if determination of guilt of a criminal
finds appropriate. offense by any court of competent
circumstances warrant, the debarring
official may impose a longer period of § 180.885 May the debarring official extend jurisdiction, whether entered upon a
debarment. a debarment? verdict or plea, including a plea of nolo
(b) In determining the period of (a) Yes, the debarring official may contendere; or
debarment, the debarring official may extend a debarment for an additional (b) Any other resolution that is the
consider the factors in § 180.860. If a period, if that official determines that an functional equivalent of a judgment,
suspension has preceded your extension is necessary to protect the including probation before judgment
debarment, the debarring official must public interest. and deferred prosecution. A disposition
consider the time you were suspended. (b) However, the debarring official without the participation of the court is
(c) If the debarment is for a violation may not extend a debarment solely on the functional equivalent of a judgment
of the provisions of the Drug-Free the basis of the facts and circumstances only if it includes an admission of guilt.
Workplace Act of 1988, your period of upon which the initial debarment action § 180.925 Debarment.
debarment may not exceed five years. was based.
(c) If the debarring official decides Debarment means an action taken by
§ 180.870 When do I know if the debarring a debarring official under Subpart H of
official debars me?
that a debarment for an additional
period is necessary, the debarring this part to exclude a person from
(a) The debarring official must make official must follow the applicable participating in covered transactions
a written decision whether to debar procedures in this subpart, and Subpart and transactions covered under the
within 45 days of closing the official F of this part, to extend the debarment. Federal Acquisition Regulation (48 CFR
record. The official record closes upon chapter 1). A person so excluded is
the debarring official’s receipt of final Subpart I—Definitions debarred.
submissions, information and findings
of fact, if any. The debarring official § 180.900 Adequate evidence. § 180.930 Debarring official.
may extend that period for good cause. Adequate evidence means Debarring official means an agency
(b) The debarring official sends you information sufficient to support the official who is authorized to impose
written notice, pursuant to § 180.615 reasonable belief that a particular act or debarment. A debarring official is
that the official decided, either— omission has occurred. either—

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(a) The agency head; or § 180.965 Legal proceedings. (1) Is in a position to handle Federal
(b) An official designated by the Legal proceedings means any criminal funds;
agency head. proceeding or any civil judicial (2) Is in a position to influence or
proceeding, including a proceeding control the use of those funds; or,
§ 180.935 Disqualified.
under the Program Fraud Civil (3) Occupies a technical or
Disqualified means that a person is Remedies Act (31 U.S.C. 3801–3812), to
prohibited from participating in professional position capable of
which the Federal Government or a substantially influencing the
specified Federal procurement or State or local government or quasi-
nonprocurement transactions as development or outcome of an activity
governmental authority is a party. The required to perform the covered
required under a statute, Executive term also includes appeals from those
order (other than Executive Orders transaction.
proceedings.
12549 and 12689) or other authority. § 180.1000 Respondent.
Examples of disqualifications include § 180.970 Nonprocurement transaction.
Respondent means a person against
persons prohibited under— (a) Nonprocurement transaction
(a) The Davis-Bacon Act (40 U.S.C. whom an agency has initiated a
means any transaction, regardless of
276(a)); debarment or suspension action.
type (except procurement contracts),
(b) The equal employment including, but not limited to the § 180.1005 State.
opportunity acts and Executive orders; following:
or (a) State means—
(1) Grants.
(c) The Clean Air Act (42 U.S.C. (2) Cooperative agreements. (1) Any of the states of the United
7606), Clean Water Act (33 U.S.C. 1368) (3) Scholarships. States;
and Executive Order 11738 (3 CFR, 1973 (4) Fellowships. (2) The District of Columbia;
Comp., p. 799). (5) Contracts of assistance. (3) The Commonwealth of Puerto
(6) Loans. Rico;
§ 180.940 Excluded or exclusion. (7) Loan guarantees.
(8) Subsidies. (4) Any territory or possession of the
Excluded or exclusion means— United States; or
(a) That a person or commodity is (9) Insurances.
prohibited from being a participant in (10) Payments for specified uses. (5) Any agency or instrumentality of
covered transactions, whether the (11) Donation agreements. a state.
(b) A nonprocurement transaction at (b) For purposes of this part, State
person has been suspended; debarred;
any tier does not require the transfer of does not include institutions of higher
proposed for debarment under 48 CFR
Federal funds. education, hospitals, or units of local
part 9, subpart 9.4; voluntarily
excluded; or § 180.975 Notice. government.
(b) The act of excluding a person. Notice means a written § 180.1010 Suspending official.
§ 180.945 Excluded Parties List System communication served in person, sent
(a) Suspending official means an
(EPLS). by certified mail or its equivalent, or
agency official who is authorized to
Excluded Parties List System (EPLS) sent electronically by e-mail or
impose suspension. The suspending
means the list maintained and facsimile. (See § 180. 615.)
official is either:
disseminated by the General Services § 180.980 Participant. (1) The agency head; or
Administration (GSA) containing the Participant means any person who (2) An official designated by the
names and other information about submits a proposal for or who enters agency head.
persons who are ineligible. into a covered transaction, including an
agent or representative of a participant. § 180.1015 Suspension.
§ 180.950 Federal agency.
Suspension is an action taken by a
Federal agency means any United § 180.985 Person.
suspending official under subpart G of
States executive department, military Person means any individual, this part that immediately prohibits a
department, defense agency or any other corporation, partnership, association, person from participating in covered
agency of the executive branch. Other unit of government, or legal entity, transactions and transactions covered
agencies of the Federal government are however organized. under the Federal Acquisition
not considered ‘‘agencies’’ for the
§ 180.990 Preponderance of the evidence. Regulation (48 CFR chapter 1) for a
purposes of this part unless they issue
Preponderance of the evidence means temporary period, pending completion
regulations adopting the
proof by information that, compared of an agency investigation and any
governmentwide Debarment and
with information opposing it, leads to judicial or administrative proceedings
Suspension system under Executive
the conclusion that the fact at issue is that may ensue. A person so excluded
Orders 12549 and 12689.
more probably true than not. is suspended.
§ 180.955 Indictment.
§ 180.1020 Voluntary exclusion or
Indictment means an indictment for a § 180.995 Principal.
voluntarily excluded.
criminal offense. A presentment, Principal means—
information, or other filing by a (a) An officer, director, owner, (a) Voluntary exclusion means a
competent authority charging a criminal partner, principal investigator, or other person’s agreement to be excluded
offense shall be given the same effect as person within a participant with under the terms of a settlement between
an indictment. management or supervisory the person and one or more agencies.
responsibilities related to a covered Voluntary exclusion must have
§ 180.960 Ineligible or ineligibility. transaction; or governmentwide effect.
Ineligible or ineligibility means that a (b) A consultant or other person, (b) Voluntarily excluded means the
person or commodity is prohibited from whether or not employed by the status of a person who has agreed to a
covered transactions because of an participant or paid with Federal funds, voluntary exclusion.
exclusion or disqualification. who— BILLING CODE 3110–01–P

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Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51879

BILLING CODE 3110–01–C § 215.13 Debarment and suspension. ■ 5. Paragraph 8 of Appendix A to part
Federal awarding agencies and 215 is revised to read as follows:
PART 215—[AMENDED]
recipients shall comply with Federal Appendix A to Part 215—Contract
■ 3. The authority citation for part 215 agency regulations implementing E.O.s Provisions
continues to read as follows: 12549 and 12689, ‘‘Debarment and * * * * *
Suspension.’’ Under those regulations, 8. Debarment and Suspension (E.O.s 12549
Authority: 31 U.S.C. 503; 31 U.S.C. 1111;
certain parties who are debarred, and 12689)—A contract award with an
41 U.S.C. 405; Reorganization Plan No. 2 of
1970; E.O. 11541, 35 FR 10737, 3 CFR, 1966–
suspended or otherwise excluded may amount expected to equal or exceed $25,000
not be participants or principals in and certain other contract awards (see 2 CFR
1970, p. 939.
Federal assistance awards and 180.220) shall not be made to parties listed
■ 4. Section 215.13 is revised to read as subawards, and in certain contracts on the government-wide Excluded Parties
follows: List System, in accordance with the OMB
under those awards and subawards.
ER31AU05.000</GPH>

guidelines at 2 CFR part 180 that implement

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51880 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations

E.O.s 12549 (3 CFR, 1986 Comp., p. 189) and (direct) or (202) 395–3993 (main office) § 215.72 provides correction for a long-
12689 (3 CFR, 1989 Comp., p. 235), and e-mail Hai_M._Tran@omb.eop.gov. standing typo.
‘‘Debarment and Suspension.’’ The Excluded
Parties List System contains the names of SUPPLEMENTARY INFORMATION: On May List of Subjects
parties debarred, suspended, or otherwise 10, 2004 [69 FR 25970], we revised the
excluded by agencies, as well as parties three OMB circulars containing Federal 2 CFR Part 215
declared ineligible under statutory or cost principles. The purpose of those Accounting, Colleges and universities,
regulatory authority other than E.O. 12549. revisions was to simplify the cost Cooperative agreements, Grant
[FR Doc. 05–16647 Filed 8–30–05; 8:45 am] principles by making the descriptions of programs, Grants administration,
BILLING CODE 3110–01–P
similar cost items consistent across the Hospitals, Nonprofit organizations,
circulars where possible, thereby Reporting and recordkeeping
reducing the possibility of requirements.
OFFICE OF MANAGEMENT AND misinterpretation. Those revisions
resulted from OMB and Federal agency 2 CFR Part 220
BUDGET
efforts to implement Public Law 106– Accounting, Colleges and universities,
2 CFR Parts 215 and 220 107, and were effective on June 9, 2004. Grant programs, Grant administrations,
In this document and the two Reporting and recordkeeping
Cost Principles for Educational documents immediately following this requirements.
Institutions (OMB Circular A–21) one, we relocate those three OMB Dated: August 8, 2005.
AGENCY: Office of Management and circulars to the CFR, in Title 2 which Joshua B. Bolten,
Budget. was established on May 11, 2004 [69 FR Director.
ACTION:Relocation of policy guidance to 26276] as a central location for OMB
2 CFR chapter II. and Federal agency policies on grants Authority and Issuance
and agreements. When we established 2 ■ For the reasons set forth above, the
SUMMARY: The Office of Management CFR and relocated OMB Circular A–110 Office of Management and Budget
and Budget (OMB) is relocating OMB in that new title, we stated that we amends 2 CFR, subtitle A, chapter II, as
Circular A–21, ‘‘Cost Principles for would relocate in the near future the follows:
Educational Institutions,’’ to Title 2 in other OMB circulars related to grants
the Code of Federal Regulations (2 CFR), and agreements. Today’s documents are PART 215—[AMENDED]
subtitle A, chapter II, part 220. This a significant step toward that end.
relocation is part of our broader Our relocation of OMB Circular A–21 ■ 1. The authority citation for part 215
initiative to create 2 CFR as a single does not change the substance of the continues to read as follows:
location where the public can find both circular. Other than adjustments needed Authority: 31 U.S.C. 503; 31 U.S.C. 1111;
OMB guidance for grants and to conform to the formatting 41 U.S.C. 405; Reorganization Plan No. 2 of
agreements and the associated Federal requirements of the CFR, this notice 1970; E.O. 11541, 35 FR 10737, 3 CFR, 1966–
agency implementing regulations. The relocates in 2 CFR the version of OMB 1970, p. 939.
broader initiative provides a good Circular A–21 as revised by the May 10, § 215.5 [Amended]
foundation for streamlining and 2004 notice.
simplifying the policy framework for Conforming changes to 2 CFR part ■ 2. Section 215.5 is amended by adding
grants and agreements, one objective of 215. There is a need for conforming ‘‘20 CFR part 437,’’ following ‘‘15 CFR
OMB and Federal agency efforts to changes to 2 CFR part 215, which part 24,’’.
implement the Federal Financial contains administrative requirements ■ 3. Section 215.25 is amended by
Assistance Management Improvement for grants and other financial assistance revising paragraphs (c)(6) and (e) to read
Act of 1999 (Pub. L. 106–107). agreements with educational as follows:
Furthermore, this document makes institutions and other nonprofit § 215.25 Revision of budget and program
changes to 2 CFR part 215, Uniform organizations. The amendments to plans.
Administrative Requirements for Grants § 215.25(c)(6) and (e), § 215.27, and
and Agreements With Institutions of * * * * *
§ 215.29(b) add the new references to 2 (c) * * *
Higher Education, Hospitals, and Other CFR parts 220, 225, and 230 for the cost (6) The inclusion, unless waived by
Non-Profit Organizations (OMB Circular principles in OMB Circulars A–21, A– the Federal awarding agency, of costs
A–110). The changes will add to part 87, and A–122, respectively. that require prior approval in
215 new references to 2 CFR parts 220, Update and corrections to 2 CFR part accordance with any of the following, as
225, and 230 for the cost principles in 215. Additional changes to 2 CFR part applicable:
OMB Circulars A–21, A–87, and A–122, 215 are needed to update § 215.5 and to (i) 2 CFR part 220, ‘‘Cost Principles
respectively; will update part 215 to correct § 215.36 and § 215.72. The for Educational Institutions (OMB
include a citation for the Social Security update to § 215.5 adds the CFR citation Circular A–21);’’
Administration’s grant regulation; and for the Social Security Administration’s (ii) 2 CFR part 230, ‘‘Cost Principles
will correct part 215 to add the (SSA) implementation of the grants for Non-Profit Organizations (OMB
amendatory language of A–110 management common rule, ‘‘Uniform Circular A–122);’’
published on October 8, 1999, and to Administrative Requirements for Grants (iii) 45 CFR part 74, Appendix E,
correct a typographic error. and Cooperative Agreements to State ‘‘Principles for Determining Costs
DATES: This document is effective and Local Governments.’’ The changes Applicable to Research and
August 31, 2005. This document to § 215.36 provide the corrections Development under Grants and
republishes the existing OMB Circular needed to include the amendments to Contracts with Hospitals;’’ and
A–21, which already is in effect. OMB Circular A–110 that were (iv) 48 CFR part 31, ‘‘Contract Cost
FOR FURTHER INFORMATION CONTACT: Gil published as final on October 8, 1999 Principles and Procedures.’’
Tran, Office of Federal Financial [64 FR 54926] and were inadvertently * * * * *
Management, Office of Management and omitted from our publication of part 215 (e) Except for requirements listed in
Budget, telephone (202) 395–3052 last year [69 FR 26281]. The change to paragraphs (c)(1) and (c)(4) of this

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