Sidebilder
PDF
ePub

(2) Specifying the reasons for debar- barment action was based. If debar. ment;

ment for an additional period is deter(3) Stating the period of debarment, mined to be necessary, the procedures including effective dates; and

of $$ 24.311 through 24.314 shall be (4) Advising that the debarment is followed to extend the debarment. effective for covered transactions (c) The respondent may request the throughout the executive branch of debarring official to reverse the debar. the Federal Government unless an ment decision or to reduce the period agency head or an authroized designee or scope of debarment. Such a request makes the determination referred to shall be in writing and supported by in $ 24.215.

documentation. The debarring official (h) If the debarring official decides

may grant such a request for reasons not to impose debarment, the respond

including, but not limited to: ent shall be given prompt notice of

(1) Newly discovered material evi. that decision. A decision not to impose dence; debarment shall be without prejudice

(2) Reversal of the conviction or civil to a subsequent imposition of debar

judgment upon which the debarment ment by any other agency.

was based; (53 FR 19184, May 26, 1988)

(3) Bona fide change in ownership or

management; 8 24.315 Settlement and voluntary exclu

(4) Elimination of other causes for sion.

which the debarment was imposed; or (a) When in the best interest of the (5) Other reasons the debarring offiGovernment, HUD may, at any time, cial deems appropriate. settle & debarment or suspension (d) Where respondent's request to action.

reduce the period or scope of debar. (b) If a participant and the agency ment is based on reasons set forth in agree to a voluntary exclusion of the

paragraphs (c)(4) or (5) of this section, participant, such voluntary exclusion

such request may not be submitted shall be entered on the Nonprocure- earlier than six months after the final ment List (see subpart E).

decision to debar. In no event may

more than one such request be submit8 24.320 Period of debarment.

ted within any 12-month period. (a) Debarment shall be for a period

(53 FR 19182 and 19204, May 26, 1988, as commensurate with the seriousness of

amended at 53 FR 19185, May 26, 1988, 54 the cause(s). If a suspension precedes

FR 4950 and 4957, Jan 31, 1989) a debarment, the suspension period shall be considered in determining the

8 24.325 Scope of debarment. debarment period. (1) Debarment for causes other than

(a) Scope in general. (1) Debarment those related to a violation of the re- of a person under these regulations quirements of subpart F of this part constitutes debarment of all its divi. generally should not exceed three sions and other organizational eleyears. Where circumstances warrant, a ments from all covered transactions, longer period of debarment may be im

unless the debarment decision is limitposed.

ed by its terms to one or more specifi(2) In the case of a debarment for a cally identified individuals, divisions or violation of the requirements of sub- other organizational elements or to part F of this part (see $ 24.305(c)(5)), specific types of transactions. the period of debarment shall not (2) The debarment action may inexceed five years.

clude any affiliate of the participant (b) The debarring official may that is specifically named and given extend an existing debarment for an notice of the proposed debarment and additional period, if that official deter- an opportunity to respond (see mines that an extension is necessary $8 24.311 through 24.314). to protect the public interest. Howev- (3) Debarment of a contractor under er, a debarment may not be extended these regulations, or by another Fedsolely on the basis of the facts and cir- eral agency pursuant to 48 CFR subcumstances upon which the initial de- part 9.4, constitutes debarment of all

Office of the Secretary, HUD

its divisions and other organizational Acceptance of the benefits derived elements from all Federal procure- from the conduct shall be evidence of ment, unless the debarment is limited such knowledge, approval, or acquiesby its terms to one or more specifically cence. identified individuals, divisions, or (4) The provisions of paragraphs other organizational elements or to (b)(1) through (3) of this section are specific types of contracts. The debar- also applicable for purposes of imputment may be extended to include any ing conduct to a contractor. affiliates of the contractor, if they are

(53 FR 19182 and 19204, May 26, 1988, as

written specifically named, given

amended at 53 FR 19185, May 26, 1988) notice of the proposed debarment, and provided with an opportunity to respond.

Subpart D-Suspension (b) Imputing conduct. For purposes

8 24.400 General. of determining the scope of debarment, conduct may be imputed as fol

(a) The suspending official may suslows:

pend a person for any of the causes in (1) Conduct imputed to participant. $ 24.405 using procedures established The fraudulent, criminal or other seri- in $ $ 24.410 through 24.413. ously improper conduct of any officer, (b) Suspension is a serious action to director, shareholder, partner, employ- be imposed only when: ee, or other individual associated with (1) There exists adequate evidence a participant may be imputed to the of one or more of the causes set out in participant when the conduct occurred $ 24.405, and in connection with the individual's (2) Immediate action is necessary to performance of duties for or on behalf protect the public interest. of the participant, or with the partici. (c) In assessing the adequacy of the pant's knowledge, approval, or acquies- evidence, the agency should consider cence. The participant's acceptance of how much information is available, the benefits derived from the conduct how credible it is given the circumshall be evidence of such knowledge, stances, whether or not important alapproval, or acquiescence.

legations are corroborated, and what (2) Conduct imputed to individuals inferences can reasonably be drawn as associated with participant. The a result. This assessment should infraudulent, criminal, or other serious- clude an examination of basic doculy improper conduct of a participant ments such as grants, cooperative may be imputed to any officer, direc- agreements, loan authorizations, and tor, shareholder, partner, employee, or contracts. other individual associated with the (d) All suspensions shall be for a participant who participated in, knew temporary period pending the compleof, or had reason to know of the par- tion of an investigation and such legal ticipant's conduct.

or debarment proceedings as may (3) Conduct of one participant im- ensue. A suspension shall become efputed to other participants in a joint fective immediately upon issuance of venture. The fraudulent, criminal, or the notice specified in $ 24.411. In other seriously improper conduct of cases involving suspected violations of one participant in a joint venture, Federal law where prosecutive action grant pursuant to a joint application, has not been initiated by the Departor similar arrangement may be imput- ment of Justice within 12 months ed to other participants if the conduct from the date of the notice of suspenoccurred for or on behalf of the joint sion, the suspension shall be terminatventure, grant pursuant to a joint ap- ed unless an Assistant Attorney Genplication, or similar arrangement may eral or a United States Attorney rebe imputed to other participants if the quests, in writing, a continuance for an conduct occurred for or on behalf of additional six months. In no event the joint venture, grant pursuant to a shall such a suspension continue joint application, or similar arrange- beyond 18 months unless prosecutive ment or with the knowledge, approval, action has been initiated within that or acquiescence of these participants. period. The time limitations for sus

$

SU th cl CC р ve

[merged small][ocr errors]

tl р

gor: CISÍCE after 1972 ent tende

(b) mate preje

p

of &

[ocr errors]
[ocr errors]

1 1 1

pension contained in this section may (2) That suspension is based on an
be waived by the affected party. indictment or other adequate evidence
(53 FR 19182 and 19204, May 26, 1988, as

that the participant or contractor has
amended at 53 FR 19185, May 26, 1988)

committeed irregularities:

(i) Of a serious nature in business 8 24.405 Causes for suspension.

dealings with the Government; or (a) Suspension may be imposed in

(ii) Seriously reflecting on the proaccordance with the provisions of priety of further Government dealings $$24.400 through 24.413 upon ade

with the participant or contractor. quate evidence:

Any such irregularities shall be de(1) To suspect the commission of an

scribed in terms sufficient to place the offense listed in $ 24.305(a); or

participant or contractor on notice (2) That a cause for debarment

without disclosing the Government's under $ 24.305 may exist.

evidence; (b) Indictment shall constitute ade

(3) of the cause(s) relied upon under quate evidence for purposes of suspen

$24.405 for imposing suspension; sion actions.

(d) That the suspension is for a tem.

porary period pending the completion 8 24.410 Procedures.

of an investigation and such legal, de(a) Investigation and referral. Infor. barment or Program Fraud Civil Remmation concerning the existence of a

edies Act proceedings as may ensue;
cause for suspension from any source (e) Of the right to request within 30
shall be promptly reported, investigat- days, in writing, a hearing (either oral
ed, and referred, when appropriate, to

or on the basis of any written submis-
the suspending official for consider- sions by the respondent) under
ation. After consideration, the sus- $ $ 24.412 and 24.413;
pending official may issue a notice of (1) Of the potential effect(s) of sus-
suspension

pension as set forth in § 24.200.
(b) Decisionmaking process. HUD (8) Of HUD's appeal procedures gov-
shall process suspension actions as in- erning suspensions.
formally as practicable, consistent

(53 FR 19186, May 26, 1988)
with principles of fundamental fair-
ness, using the procedures in g 24.411 8 24.412 Appeal procedures.
through $ 24.413.
(c) Suspension is a serious action to

Within 30 days of receipt of a notice
be imposed when it has been deter-

of suspension, a participant or conmined that immediate action is neces

tractor, including any affiliate, desirsary to protect the Government's in- ing a hearing shall file a written reterest. In assessing the adequacy of

quest for a hearing with the Debarthe evidence, the Suspending Official

ment Docket Clerk, Department of shall consider how much information

Housing and Urban Development, 451 is available, the credibility of the evi

Seventh Street SW., Room 10266,
dence given the circumstances, wheth-

Washington, DC 20410.
er or not important allegations are (53 FR 19185, MAY 26, 1988)
corroborated, and what inferences can
reasonably be drawn as a result of all 8 24.413 Hearing procedures.
available evidence.

If a hearing is requested, it shall be
(53 FR 19182 and 19204, May 26, 1988, as held in accordance with $8 24.313 and
amended at 53 FR 19185, May 26, 1988) 24.314, except:

(a) Where an Assistant Attorney 8 24.411 Notice of suspension.

General has advised in writing that (a) Suspension shall be made effec- substantial interests of the Governtive by advising the participant or con- ment would be prejudiced by an adtractor, and any specifically named af- ministrative hearing, and the suspendflllates, by certified mail, return re- ing official determines that a suspenceipt requested

sion is based on the same facts as (1) That suspension is being im- pending or contemplated legal proposed;

ceedings referenced by the Assistant

[merged small][merged small][ocr errors][ocr errors][ocr errors][ocr errors][ocr errors][merged small]

Office of the Secretary, HUD

8 24.420 Scope of suspension.

The scope of a suspension is the same as the scope of a debarment (see $ 24.325), except that the procedures of $ $ 24.410 through 24.413 shall be used in imposing a suspension.

Subpart E–Responsibilities of GSA,

Agency and Participants

Attorney General, there shall be no right to a hearing under this part. The participant or contractor may submit documentary evidence and written briefs for consideration by the suspending official. The suspending official shall make a decision on the basis of all the information in the administrative record, including any submission made by the respondent. The decision shall be made within 45 days after receipt of any information and argument submitted by the respondent, unless the Suspending Official extends this period for good cause.

(b) A decision to modify or terminate the suspension shall be without prejudice to the subsequent imposition of a suspension for the same cause by any other agency or a debarment by any agency. (53 FR 19186, May 26, 1988)

8 24.415 Period of suspension.

(a) Suspension shall be for a temporary period pending the completion of an investigation or ensuing legal, debarment, or Program Fraud Civil Remedies Act proceedings, unless terminated sooner by the suspending official or as provided in paragraph (b) of this section.

(b) If legal or administrative proceedings are not initiated within 12 months after the date of the suspension notice, the suspension shall be terminated unless an Assistant Attorney General or United States Attorney requests its extension in writing, in which case it may be extended for an additional six months. In no event may a suspension extend beyond 18 months, unless such proceedings have been initiated within that period.

(c) The suspending official shall notify the Department of Justice of an impending termination of a suspension, at least 30 days before the 12month period expires, to give that Department an opportunity to request an extension.

(d) The time limitations for suspension contained in this section may be waived by the affected party. (53 FR 19182 and 19204. May 26, 1988, as amended at 53 FR 19186, May 26, 1988)

8 24.500 GSA responsibilities.

(a) In accordance with the OMB guidelines, GSA shall compile, maintain, and distribute a list of all persons who have been debarred, suspended, or voluntarily excluded by agencies under Executive Order 12549 and these regulations, and those who have been determined to be ineligible.

(b) At a minimum, this list shall indicate:

(1) The names and addresses of all debarred, suspended, ineligible, and voluntarily excluded persons, in alphabetical order, with cross-references when more than one name is involved in a single action;

(2) The type of action;
(3) The cause for the action;
(4) The scope of the action;

(5) Any termination date for each listing; and

(6) The agency and name and telephone number of the agency point of contact for the action.

(c) In accordance with 48 CFR 9.404, GSA shall compile and distribute a list of contractors who are debarred, suspended or ineligible. (53 FR 19182 and 19204, May 26, 1988, as amended at 53 FR 19186, May 26, 1988)

8 24.505 HUD responsibilities.

(a) The agency shall provide GSA with current information concerning debarments, suspension, determinations of ineligibility, and voluntary exclusions it has taken. Until February 18, 1989, the agency shall also provide GSA and OMB with information concerning all transactions in which HUD has granted exceptions under $ 24.215 permitting participation by debarred, suspended, or voluntarily excluded persons.

(b) Unless an alternative schedule is agreed to by GSA, the agency shall

[ocr errors][ocr errors]

advise GSA of the information set the certification will not necessarily forth in $ 24.500(b) and of the excep- result in denial of participation. Howtions granted under $ 24.215 within ever, the certification, and any addifive working days after taking such ac- tional information pertaining to the tions.

certification submitted by the partici(c) The agency shall direct inquiries pant, shall be considered in the adminconcerning listed persons to the istration of covered transactions. agency that took the action.

(b) Certification by participants in (d) Agency officials shall check the

lower tier covered transactions. (1) Nonprocurement List before entering

Each participant shall require particicovered transactions to determine

pants in lower tier covered transacwhether a participant in a primary

tions to include the certification in aptransaction is debarred, suspended, in

pendix B to this part for it and its eligible, or voluntarily excluded (Tel.

principals in any proposal submitted #).

in connection with such lower tier cov(e) Agency officials shall check the

ered transactions. Nonprocurement List before approv.

(2) A participant may rely upon the ing principals or lower tier partici

certification of a prospective participants where agency approval of the principal or lower tier participant is

pant in a lower tier covered transac

tion that it and its principals are not required under the terms of the trans

debarred, suspended, ineligible, or volaction, to determine whether such principals or participants are de

untarily excluded from the covered

transaction by any Federal agency, barred, suspended, ineligible, or volun

unless it knows that the certification tarily excluded. (f) The agency shall notify GSA

is erroneous. Participants may decide within 5 working days after modifying

the method and frequency by which or rescinding an action;

they determine the eligiblity of their (g) The agency shall, in accordance

principals. In addition, a participant with internal retention procedures,

may, but is not required to, check the maintain records relating to each sus

Nonprocurement List for its principals pension or debarment action taken by

and for participants (Tel. #). the agency;

(c) Changed circumstances regarding (h) Contracting Officers shall check certification. A participant shall prothe Procurement List before entering vide immediate written notice to HUD into any contract or before approving

if at any time the participant learns any subcontract to determine whether

that its certification was erroneous a contractor is debarred, suspended,

when submitted or has become erroneineligible or voluntarily excluded. ous by reason of changed circum

stances. Participants in lower tier cov(53 FR 19182 and 19204, May 26, 1988, as

ered transactions shall provide the amended at 53 FR 19186, May 26, 1988)

same updated notice to the participant 8 24.510 Participants' responsibilities.

to which it submitted its proposals. (a) Certification by participants in primary covered transactions. Each

Subpart -Drug-Free Workplace participant shall submit the certifica

Requirements (Grants) tion in appendix A to this part for it and its principals at the time the par

SOURCE: 55 FR 21688, 21695, May 25, 1990, ticipant submits its proposal in con

unless otherwise noted. nection with a primary covered trans

8 24.600 Purpose. action, except that States need only complete such certification as to their (a) The purpose of this subpart is to principals. Participants may decide carry out the Drug-Free Workplace the method and frequency by which Act of 1988 by requiring that, they determine the eligibility of their (1) A grantee, other than an individprincipals. In addition, each partici- ual, shall certify to the agency that it pant may, but is not required to, check will provide a drug-free workplace; the Nonprocurement List for its prin- (2) A grantee who is an individual cipals (Tel. #). Adverse information on shall certify to the agency that, as a

[ocr errors]
« ForrigeFortsett »