[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Rules and Regulations]
[Pages 39854-39859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16015]
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DEPARTMENT OF ENERGY
10 CFR Parts 1035 and 1036 and 48 CFR Part 909
RIN 1991-AB24
Debarment and Suspension (Procurement) and Governmentwide
Debarment and Suspension (Nonprocurement) and Governmentwide
Requirements for Drug-Free Workplace (Grants) and Department of Energy
Acquisition Regulation
AGENCY: Department of Energy (DOE).
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) today is publishing a final
rule which amends its regulations governing debarment and suspension in
procurement and nonprocurement activities. The rule establishes a
common fact-finding process in procurement and nonprocurement cases
involving a genuine dispute over material facts. The rule removes the
Department's procurement debarment and suspension regulations from part
10 of the Code of Federal Regulations (CFR) and recodifies them in the
Department of Energy Acquisition Regulation (DEAR), chapter 9 of title
48 of the Code of Federal Regulations.
EFFECTIVE DATE: This rule is effective August 30, 1996.
FOR FURTHER INFORMATION CONTACT: Mrs. Cynthia Yee, Office of Clearance
and Support, Procurement and Assistance Management, HR-52, U. S.
Department of Energy, 1000 Independence Avenue, SW, Washington, DC
20585, 202-586-1140.
SUPPLEMENTARY INFORMATION:
I. Background.
II. Public Comments.
III. Procedural Requirements.
A. Regulatory Review.
B. Review under the Regulatory Flexibility Act.
C. Review Under the Paperwork Reduction Act.
D. Review Under the National Environmental Policy Act.
E. Review Under Executive Order 12612.
F. Review Under Executive Order 12988.
G. Review Under the Unfunded Mandates Reform Act.
I. Background
The Department of Energy (DOE) today is publishing a final rule
which removes 10 CFR Part 1035, Debarment and Suspension (Procurement),
and recodifies the regulation at 48 CFR Part 909. In recodifying the
procurement debarment and suspension regulations, DOE makes various
changes to clarify the provisions of procurement debarment and
suspension and to ensure consistency between the Federal Acquisition
Regulation (FAR) and the DEAR. See explanation of the changes in the
preamble to the Notice of Proposed Rulemaking published for this rule
on February 2, 1996 (61 FR 3877). Under the recodified regulations, the
Energy Board of Contract Appeals will conduct fact-finding in
suspensions or proposed debarments in which the debarring/suspending
official determines that material facts are in dispute.
This rule also amends 10 CFR Part 1036, Governmentwide Debarment
and Suspension (Nonprocurement) and Governmentwide Requirements for
Drug-Free Workplace (Grants), which governs debarment and suspension
with regard to DOE nonprocurement and grants programs. The changes made
to 10 CFR Part 1036 are primarily technical or procedural in nature.
They are explained in the preamble of the Notice of Proposed Rulemaking
(61 FR 3877-3878), with the exception of changes to subparagraph (c)(1)
of section 1036.110 and subparagraph (a) of section 1036.215, which
were not in the proposed rule. These subparagraphs are being added
because previous changes to the common rule resulted in them being
inadvertently omitted. This final rule reinstates the subparagraphs and
corrects references in those reinstated subparagraphs. Section 1036.700
provides for fact-finding by the Energy Board of Contract Appeals in
suspensions or proposed debarments in which the debarring/suspending
official determines that material facts are in dispute.
The Department of Energy Consolidated List of Debarred, Suspended,
Ineligible and Voluntarily Excluded Awardees (DOE List) has been
eliminated as unnecessary because the General Services Administration
maintains, pursuant to Executive order 12549, a governmentwide list of
parties excluded from federal procurement and nonprocurement programs.
Due to the extensive revisions to DEAR, the complete text of DEAR
909.4 is published. However, only those portions of Part 1036 that are
affected by the changes are published, rather than
[[Page 39855]]
publishing the complete text of the common rule.
II. Public Comments
On February 2, 1996, DOE published a Notice of Proposed Rulemaking
and invited public comment for a period of 60 days on these amendments
to the Department's debarment and suspension regulations (61 FR 3877).
No comments were received on the proposed rule. Except for the
technical correction of sections 1036.110 and 1036.215, this final rule
makes no changes to the rule as proposed.
III. Procedural Requirements
A. Regulatory Review
Today's final rule has been determined not to be a ``significant
regulatory action'' under Executive Order 12866, ``Regulatory Planning
and Review,'' (58 FR 51735, October 4, 1993). Nevertheless, a copy of
the rule was submitted informally to the Office of Information and
Regulatory Affairs because it relates to the subject matter of a
Governmentwide common rule.
B. Review Under the Regulatory Flexibility Act
This final rule was reviewed under the Regulatory Flexibility Act
of 1980, Public Law 96-354, which requires preparation of a regulatory
flexibility analysis for any rule which is likely to have significant
economic impact on a substantial number of small entities. Today's rule
revises procedural requirements pertaining to suspension and debarment
of DOE contractors. It contains no recordkeeping or substantive
regulatory requirements. DOE certifies that this rule will not have a
signficant economic impact on a substantial number of small entities,
and therefore, no regulatory flexibility analysis has been prepared.
C. Review Under the Paperwork Reduction Act
No new information collection or recordkeeping requirements are
imposed by this rule. Accordingly, no OMB clearance is required by the
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
D. Review Under NEPA
DOE has determined that issuance of this rule is not a major
federal action significantly affecting the quality of the human
environment within the meaning of the National Environmental Policy Act
of 1969 (NEPA), 42 U.S.C. 4321 et seq., and therefore that neither an
environmental assessment nor an environmental impact statement is
required. Categorical exclusion A2 in DOE's regulations implementing
NEPA, appendix A of subpart D of 10 CFR Part 1021, applies to this
rulemaking. Categorical exclusion A2 encompasses procedural and
administrative matters pertaining to contracts.
E. Review Under Executive Order 12612
Executive Order 12612, 52 FR 41685 (October 30, 1987), requires
that regulations, rules, legislation, and any other policy actions be
reviewed for any substantial direct effects on States, on the
relationship between the national Government and the States, and in the
distribution of power and responsibility among various levels of
Government. If there are sufficient substantial direct effects, then
the Executive Order requires preparation of a federalism assessment to
be used in all decisions involved in promulgating and implementing a
policy action.
Today's rule revises certain procedural requirements pertaining to
suspension and debarment of DOE contractors. DOE has determined that
none of the revisions will have a substantial direct effect on the
institutional interests or traditional functions of the States.
F. Review Under Executive Order 12988
Section 3 of Executive Order 12988 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 3(a)
and 3(b), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation: specifies
clearly any preemptive effect, effect on existing Federal law or
regulation, and retroactive effect; describes any administrative
proceedings to be available prior to judicial review and any provisions
for the exhaustion of such administrative proceedings; and defines key
terms. DOE has completed the required review and determined that, to
the extent permitted by law, the final rule meets the relevant
standards of Executive Order 12988.
G. Review Under the Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (the Act),
enacted as Pub. L. 104-4 on March 22, 1995, requires each Federal
agency, to the extent permitted by law, to prepare a written assessment
of the effects of any Federal mandate in a proposed or final agency
rule that may result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year.
Section 204(a) of the Act, 2 U.S.C. 1534(a), requires the Federal
agency to develop an effective process to permit timely input by
elected officers (or their designees) of State, local, and tribal
governments on a proposed ``significant intergovernmental mandate.''
Section 203 of the Act, which supplements section 204(a), provides that
before establishing any regulatory requirements that might
significantly or uniquely affect small governments, the agency shall
have developed a plan that, among other things, provides for notice to
potentially affected small governments, if any, and for a meaningful
and timely opportunity to provide input in the development of
regulatory proposals. 2 U.S.C. 1533.
The final rule published today does not contain any Federal
mandate. Therefore, the requirements of Title II of the Unfunded
Mandates Reform Act of 1995 do not apply.
List of Subjects
10 CFR Part 1035
Administrative practice and procedure, Government procurement.
10 CFR Part 1036
Administrative practice and procedure, Drug abuse, Grant programs,
Loan programs.
48 CFR Part 909
Government procurement.
Issued in Washington, DC, on June 7, 1996.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set out in the preamble, Title 10 Code of Federal
Regulations Parts 1035 and 1036 and Chapter 9, Title 48 Code of Federal
Regulations are amended as set forth below.
10 CFR PART 1035--DEBARMENT AND SUSPENSION (PROCUREMENT)--[REMOVED]
1. Under the authority of Section 644 of the DOE Organization Act,
42 U.S.C. 7254, Part 1035--Debarment and Suspension (Procurement) is
removed.
[[Page 39856]]
PART 1036--GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
AND GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (GRANTS)
2. The authority citation continues to read as follows:
Authority: E.O. 12689, E.O. 12549; Sec. 5151-5160 of the Drug-
Free Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 42
U.S.C. 701 et seq.); Secs. 644 and 646, Pub. L. 95-91, 91 Stat. 599
(42 U.S.C. 7254 and 7256); Pub. L. 97-258, 98 Stat. 1003-1005 (31
U.S.C.) 6301-6308.
Subpart A--General
Sec. 1036.105 Definitions. [Amended]
3. Section 1036.105 is amended by revising the phrase ``Director,
Procurement and Assistance Management Directorate'' to read ``Deputy
Assistant Secretary for Procurement and Assistance Management or
designee'' in the definitions for ``Debarring Official''(paragraph (3))
and ``Suspending Official''(paragraph (3)); and removing the
definitions for ``Director'' and ``DOE List.''
4. Section 1036.110 is amended by adding paragraphs (c) (1) and (2)
to read as follows:
Sec. 1036.110 Coverage.
* * * * *
(c) * * *
(1) Debarment and suspension of DOE procurement contractors is
covered by 48 CFR (DEAR) 909.4.
(2) Reserved.
Subpart B--Effect of Action
5. Section 1036.215 is amended by adding paragraphs (a) and (b) to
read as follows:
Sec. 1036.215 Exception provision.
* * * * *
(a) The DOE authorized designee is the Deputy Assistant Secretary
for Procurement and Assistance Management or designee.
(b) Reserved.
Subpart C--Debarment
Sec. 1036.312 Notice of proposed debarment. [Amended]
6. Section 1036.312 is amended by removing paragraph (b)(1); by
removing paragraph (d)(1); by removing paragraph (e)(1); in paragraph
(f) by revising ``Director'' to read ``debarring official;'' and in
paragraph (g) by revising ``DOE'' to read ``GSA.''
Sec. 1036.313 Opportunity to contest proposed debarment. [Amended]
7. Section 1036.313 is amended in paragraph (a)(1) by revising
``Director'' to read ``debarring official'' and removing the citation
``(See Sec. 1036.600(c)).''
Sec. 1036.314 Debarring official's decision. [Amended]
8. Section 1036.314 is amended by removing paragraph (d)(1)(vi) and
redesignating paragraphs (d)(1) (vii) and (viii) as (d)(1) (vi) and
(vii).
Sec. 1036.315 Settlement and voluntary exclusion. [Amended]
9. Section 1036.315 is amended by removing paragraph (c).
Subpart D--Suspension
Sec. 1036.411 Notice of Suspension. [Amended]
10. Section 1036.411 is amended by removing paragraph (c)(1); by
removing paragraph (f)(1); in paragraph (h) by revising ``Director'' to
read ``suspending official'' and in paragraph (j) by revising ``DOE''
to read ``GSA.''
Sec. 1036.412 Opportunity to contest suspension. [Amended]
11. Section 1036.412 is amended by removing paragraph (a)(1).
Subpart G--Additional DOE Procedures for Debarment and Suspension
12. Section 1036.700, Decisionmaking, is revised to read as
follows:
Sec. 1036.700 Procedures.
(a) Decisionmaking process for debarments. (1) In actions based
upon a conviction or civil judgment, and other actions in which there
is no genuine dispute over material facts, the debarring official shall
make a decision on the basis of all the information in the
administrative record, including any submissions made by the awardee.
If no suspension is in effect, the decision shall be made within 30
working days after receipt of any information and argument submitted by
the awardee, unless the debarring official extends this period for good
cause. The debarring official shall consider information and argument
in opposition to the proposed debarment including identification of
disputed material facts. If the respondent fails to submit a timely
written response to a notice of proposed debarment, the debarring
official shall notify the respondent in accordance with 10 CFR 1036.312
that the awardee is debarred.
(2) In actions not based upon a conviction or civil judgment, if it
is found that the awardee's submission in opposition raises a genuine
dispute over facts material to the proposed debarment, at the request
of the awardee, the debarring official shall refer the matter to the
Energy Board of Contract Appeals for a fact-finding conference, in
accordance with rules consistent with this section promulgated by the
Energy Board of Contract Appeals. The Energy Board of Contract Appeals
shall report to the Debarring Official findings of fact, not
conclusions of law. The findings shall resolve any disputes over
material facts based on a preponderance of evidence.
(b) Decisionmaking process for suspensions. (1) In actions based on
an indictment, the suspending official shall make a decision based upon
the administrative record, which shall include submissions made by the
awardee.
(2) In actions not based on an indictment, if it is found that the
awardee's submission in opposition raises a genuine dispute over facts
material to the suspension and if no determination has been made, on
the basis of Department of Justice advice, that substantial interest of
the Government in pending or contemplated legal proceedings based on
the same facts as the suspension would be prejudiced, the suspending
official shall, at the request of the awardee, refer the matter to the
Energy Board of Contract Appeals for a fact-finding conference, in
accordance with rules promulgated by the Energy Board of Contract
Appeals. The Energy Board of Contract Appeals shall report to the
Suspending Official findings of fact, not conclusions of law. The
findings shall resolve any disputes over material facts based on
adequate evidence.
(c) Meeting. Upon receipt of a timely request therefore from the
respondent, the debarring/suspending official shall schedule a meeting
between the debarring/suspending official and the respondent, to be
held no later than 30 days from the date the request is received. The
debarring/suspending official may postpone the date of the meeting if
the respondent requests a postponement in writing. At the meeting, the
respondent, appearing personally or through an attorney or other
authorized representative, may informally present and explain evidence
that causes for debarment or suspension do not exist, evidence of any
mitigating factors, and arguments concerning the imposition, scope,
duration, or effects of a proposed debarment or suspension.
[[Page 39857]]
(d) Fact-finding conference. The purpose of a fact-finding
conference under this section is to provide the respondent an
opportunity to dispute material facts and to provide the debarring/
suspending official with findings of fact based, as applicable, on
adequate evidence or on a preponderance of the evidence. If the
debarring/suspending official determines that a written response or a
presentation at the meeting under paragraph (c) of this section puts
material facts in dispute, the debarring/suspending official shall
refer the matter to the Energy Board of Contract Appeals for fact-
finding. The fact-finding conference shall be conducted in accordance
with rules promulgated by the Energy Board of Contract Appeals. The
Energy Board of Contract Appeals shall report to the Debarring Official
findings of fact, but not conclusions of law. The findings shall
resolve any disputes over material facts based on a preponderance of
evidence if the case involves a proposal to debar, or on adequate
evidence if the case involves a suspension. Since convictions or civil
judgments generally establish the cause for debarment by a
preponderance of the evidence, there usually is no genuine dispute over
a material fact that warrants a fact-finding conference for those
proposed debarments based on convictions or civil judgments.
13. Section 1036.705 is amended in the introductory paragraph by
revising ``Director'' to read ``debarring/suspending official'' in the
first and second sentences, revising reference to ``1036.700(b)(1) or
(b)(2)'' to read ``1036.700(c)'' and by revising paragraph (b) to read
as follows:
Sec. 1036.705 Coordination with Department of Justice.
* * * * *
(b) Deny additional proceedings and base the decision on all
information in the administrative recording, including any submissions
made by the respondent.
Sec. 1036.710 DOE consolidated list of debarred, suspended,
ineligible, and voluntarily excluded awardees. [Removed]
14. Section 1036.710, DOE consolidated list of debarred, suspended,
ineligible, and voluntarily excluded awardees, is removed.
Sec. 1036.715 Effects of being listed on the GSA list. [Amended]
15. Section 1036.715 is amended by revising the section heading to
read ``Effects of being listed on the GSA list'' and, in the
introductory paragraph, by revising ``Director'' to read ``Deputy
Assistant Secretary for Procurement and Assistance Management or
designee'' and by revising ``DOE List'' to read ``GSA List'' wherever
it appears in paragraphs (a) through (g).
48 CFR PART 909--CONTRACTOR QUALIFICATIONS
16. The authority citation for Part 909 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
17. Subpart 909.4 is revised to read as follows:
Subpart 909.4--Debarment, Suspension, and Ineligibility
Sec.
909.400 Scope of subpart.
909.401 Applicability.
909.403 Definitions.
909.405 Effect of listing.
909.406 Debarment.
909.406-2 Causes for debarment.
909.406-3 Procedures.
909.406-6 Requests for reconsideration of debarment.
909.407-2 Causes for suspension.
909.407-3 Procedures.
Subpart 909.4--Debarment, Suspension, and Ineligibility
Sec. 909.400 Scope of subpart.
This subpart--
(a) Prescribes policies and procedures governing the debarment and
suspension of organizations and individuals from participating in
Department of Energy (DOE) contracts, procurement sales contracts, and
real property purchase agreements, and from participating in DOE
approved subcontracts and subagreements.
(b) Sets forth the causes, procedures, and requirements for
determining the scope, duration, and effect of DOE debarment and
suspension actions; and
(c) Implements and supplements FAR subpart 9.4 with respect to the
exclusion of organizations and individuals from procurement contracting
and Government approved subcontracting.
Sec. 909.401 Applicability.
The provisions of this subpart apply to all procurement debarment
and suspension actions initiated by DOE on or after the effective date
of this subpart. Nonprocurement debarment and suspension rules are
codified in 10 CFR part 1036.
Sec. 909.403 Definitions.
In addition to the definitions set forth at FAR 9.403, the
following definitions apply to this subpart:
Debarring Official. The DOE Debarring Official is the Deputy
Assistant Secretary for Procurement and Assistance Management, or
designee.
DOE means the Department of Energy, including the Federal Energy
Regulatory Commission.
Suspending Official. The DOE Suspending Official is the Deputy
Assistant Secretary for Procurement and Assistance Management, or
designee.
Sec. 909.405 Effect of listing. (DOE coverage--paragraph (e), (b),
(g) and (h))
(e) The Department of Energy may not solicit offers from, award
contracts to or consent to subcontract with contractors debarred,
suspended or proposed for debarment unless the Deputy Assistant
Secretary for Procurement and Assistance Management makes a written
determination justifying that there is a compelling reason for such
action in accordance with FAR 9.405(a).
(f) DOE may disapprove or not consent to the selection (by a
contractor) of an individual to serve as a principal investigator, as a
project manager, in a position of responsibility for the administration
of Federal funds, or in another key personnel position, if the
individual is on the GSA List.
(g) DOE shall not conduct business with an agent or representative
of a contractor if the agent's or representative's name appears on the
GSA List.
(h) DOE shall review the GSA List before conducting a preaward
survey or soliciting proposals, awarding contracts, renewing or
otherwise extending the duration of existing contracts, or approving or
consenting to the award, extension, or renewal of subcontracts.
Sec. 909.406 Debarment.
Sec. 909.406-2 Causes for debarment. (DOE coverage--paragraphs (c)
and (d))
(c) The Debarring Official may debar a contractor for any other
cause of so serious or compelling a nature that it affects the present
responsibility of a DOE contractor. Such cause may include but is not
limited to:
(1) Commission of fraud or a criminal offense in connection with
obtaining, attempting to obtain, or performing a private contract or
subcontract; and
(2) Inexcusable, prolonged, or repeated failure to pay a debt
(including disallowed costs and overpayments) owed to DOE, provided the
contractor has been notified of the determination of indebtedness, and
further provided that the time for initiating any administrative or
legal action to oppose or appeal the determination of indebtedness has
expired or that such action, if initiated, has been concluded.
(d) The Debarring Official may debar a contractor:
(1) On the basis that an individual or organization is an affiliate
of a debarred
[[Page 39858]]
contractor, subject to the requirements of FAR 9.406-1(b) and 9.406-
3(c);
(2) For failure to observe the material provisions of a voluntary
exclusion (see 10 CFR 1036.315 for discussion of voluntary exclusion).
Sec. 909.406-3 Procedures. (DOE coverage--paragraphs (a), (b) and
(d))
(a) Investigation and referral. (1) Offices responsible for the
award and administration of contracts are responsible for reporting to
both the Deputy Assistant Secretary for Procurement and Assistance
Management and the DOE Inspector General information about possible
fraud, waste, abuse, or other wrongdoing which may constitute or
contribute to a cause(s) for debarment under this subpart.
Circumstances that involve possible criminal or fraudulent activities
must be reported to the Office of the Inspector General in accordance
with 10 CFR Part 1010, Conduct of Employees, Sec. 1010.217(b),
Cooperation with the Inspector General.
(2) At a minimum, referrals for consideration of debarment action
should be in writing and should include the following information:
(i) The recommendation and rationale for the referral;
(ii) A statement of facts;
(iii) Copies of documentary evidence and a list of all witnesses,
including addresses and telephone numbers, together with a statement
concerning their availability to appear at a fact-finding proceeding
and the subject matter of their testimony;
(iv) A list of parties including the contractor, principals, and
affiliates (including last known home and business addresses, zip codes
and DUNS Number);
(v) DOE's acquisition history with the contractor, including recent
experience under contracts and copies of pertinent contracts;
(vi) A list of any known active or potential criminal
investigations, criminal or civil proceedings, or administrative claims
before the Board of Contract Appeals; and
(vii) A statement regarding the impact of the debarment action on
DOE programs. This statement is not required for referrals by the
Inspector General.
(3) Referrals may be returned to the originator for further
information or development.
(b) Decisionmaking process. Contractors proposed for debarment
shall be afforded an opportunity to submit information and argument in
opposition to the proposed debarment.
(1) In actions based upon a conviction or civil judgment, or in
which there is no genuine dispute over material facts, the Debarring
Official shall make a decision on the basis of all the information in
the administrative record, including any submissions made by the
contractor. If the respondent fails to submit a timely written response
to a notice of proposed debarment, the Debarring Official shall notify
the respondent in accordance with FAR 9.406-3(e) that the contractor is
debarred.
(2) In actions not based upon a conviction or civil judgment, the
contractor may request a fact-finding hearing to resolve a genuine
dispute of material fact. In its request, the contractor must identify
the material facts in dispute and the basis for disputing the facts. If
the Debarring Official determines that there is a genuine dispute of
material fact, the Debarring Official shall refer the matter to the
Energy Board of Contract Appeals for a fact-finding conference.
(3) Meeting. Upon receipt of a timely request therefor from a
contractor proposed for debarment, the Debarring Official shall
schedule a meeting between the Debarring Official and the respondent,
to be held no later than 30 days from the date the request is received.
The Debarring Official may postpone the date of the meeting if the
respondent requests a postponement in writing. At the meeting, the
respondent, appearing personally or through an attorney or other
authorized representative, may present and explain evidence that causes
for debarment do not exist, evidence of any mitigating factors, and
arguments concerning the imposition, scope, or duration of a proposed
debarment or debarment.
(4) Fact-finding conference. The purpose of a fact-finding
conference under this section is to provide the respondent an
opportunity to dispute material facts through the submission of oral
and written evidence; resolve facts in dispute; and provide the
Debarring Official with findings of fact based, as applicable, on
adequate evidence or on a preponderance of the evidence. The fact-
finding conference shall be conducted in accordance with rules
consistent with FAR 9.406-3(b) promulgated by the Energy Board of
Contract Appeals. The Energy Board of Contract Appeals will notify the
affected parties of the schedule for the hearing. The Energy Board of
Contract Appeals shall deliver written findings of fact to the
Debarring Official (together with a transcription of the proceeding, if
made) within a certain time period after the hearing record closes, as
specified in the Energy Board of Contract Appeals Rules. The findings
shall resolve any disputes over material facts based upon a
preponderance of the evidence, if the case involves a proposal to
debar, or on adequate evidence, if the case involves a suspension.
Since convictions or civil judgments generally establish the cause for
debarment by a preponderance of the evidence, there usually is no
genuine dispute over a material fact that would warrant a fact-finding
conference for those proposed debarments based on convictions or civil
judgments.
(d) Debarring Official's decision. (4) The Debarring Official's
final decision shall be based on the administrative record. In those
actions where additional proceedings are necessary as to disputed
material facts, written findings of fact shall be prepared and included
in the final decision. In those cases where the contractor has
requested and received a fact-finding conference, the written findings
of fact shall be those findings prepared by the Energy Board of
Contract Appeals. Findings of fact shall be final and conclusive unless
within 15 days of receipt of the findings, the Department or the
respondent requests reconsideration, as provided in the Board's Rules,
or unless set aside by a court of competent jurisdiction. The Energy
Board of Contract Appeals shall be provided a copy of the Debarring
Official's final decision.
909.406-6 Requests for reconsideration of debarment.
(a) At any time during a period of debarment, a respondent may
submit to the Debarring or Suspending Official a written request for
reconsideration of the scope, duration, or effects of the suspension/
debarment action because of new information or changed circumstances,
as discussed at FAR 9.406-4(c).
(b) In reviewing a request for reconsideration, the Debarring or
Suspending Official may, in his or her discretion, utilize any of the
procedures (meeting and fact-finding) set forth in 48 CFR (DEAR)
909.406-3 and 909.407-3. The Debarring or Suspending Official's final
disposition of the reconsideration request shall be in writing and
shall set forth the reasons why the request has been granted or denied.
A notice transmitting a copy of the disposition of the request for
reconsideration shall be sent to the respondent and, if a fact-finding
conference under 48 CFR (DEAR) 909.406-3(b)(4) is pending (as in the
case of a request for reconsideration of a suspension, where the
proposed debarment is the subject of a fact-finding conference), a copy
of the disposition shall be transmitted to the Energy Board of Contract
Appeals.
[[Page 39859]]
909.407-2 Causes for suspension. (DOE coverage--paragraph (d))
(d) The Suspending Official may suspend an organization or
individual:
(1) Indicted for or suspected, upon adequate evidence, of the
causes described in 48 CFR (DEAR) 909.406-2(c)(1).
(2) On the basis of the causes set forth in 48 CFR (DEAR) 909.406-
2(d)(2).
(3) On the basis that an organization or individual is an affiliate
of a suspended or debarred contractor.
909.407-3 Procedures. (DOE coverage--paragraphs (b) and (c))
(b) Decisionmaking process.
(1) In actions based on an indictment, the Suspending Official
shall make a decision based upon the administrative record, which shall
include submissions made by the contractor in accordance with 48 CFR
(DEAR) 909.406-3(b)(1) and 909.406-3(b)(3).
(2) For actions not based on an indictment, the procedures in 48
CFR (DEAR) 909.406-3(b)(2) and FAR 9.407-3(b)(2) apply.
(3) Coordination with Department of Justice. Whenever a meeting or
fact-finding conference is requested, the Suspending Official's legal
representative shall obtain the advice of appropriate Department of
Justice officials concerning the impact disclosure of evidence at the
meeting or fact-finding conference could have on any pending civil or
criminal investigation or legal proceeding. If such Department of
Justice official requests in writing that evidence needed to establish
the existence of a cause for suspension not be disclosed to the
respondent, the Suspending Official shall:
(i) Decline to rely on such evidence and withdraw (without
prejudice) the suspension or proposed debarment until such time as
disclosure of the evidence is authorized; or
(ii) Deny the request for a meeting or fact-finding and base the
suspension decision solely upon the information in the administrative
record, including any submission made by the respondent.
(e) Notice of suspending official's decision. In actions in which
additional proceedings have been held, following such proceedings, the
Suspending Official shall notify respondent, as applicable, in
accordance with paragraphs (e)(1) or (e)(2) of this section.
(1) Upon deciding to sustain a suspension, the Suspending Official
shall promptly send each affected respondent a notice containing the
following information:
(i) A reference to the notice of suspension, the meeting and the
fact-finding conference;
(ii) The Suspending Official's findings of fact and conclusions of
law;
(iii) The reasons for sustaining a suspension;
(iv) A reference to the Suspending Official's waiver authority
under 48 CFR (DEAR) 909.405;
(v) A statement that the suspension is effective throughout the
Executive Branch as provided in FAR 9.407-1(d);
(vi) Modifications, if any, of the initial terms of the suspension;
(vii) A statement that a copy of the suspension notice was sent to
GSA and that the respondent's name and address will be added to the GSA
List; and
(viii) If less than an entire organization is suspended,
specification of the organizational element(s) or individual(s)
included within the scope of the suspension.
(2) If the Suspending Official decides to terminate a suspension,
the Suspending Official shall promptly send, by certified mail, return
receipt requested, each affected respondent a copy of the final
decision required under this section.
[FR Doc. 96-16015 Filed 7-30-96; 8:45 am]
BILLING CODE 6450-01-P
