[Federal Register Volume 61, Number 23 (Friday, February 2, 1996)]
[Rules and Regulations]
[Pages 3846-3849]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2044]
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PANAMA CANAL COMMISSION
48 CFR Part 3509
RIN: 3207-AA30
Panama Canal Commission Acquisition Regulation; Debarment,
Suspension and Ineligibility
AGENCY: Panama Canal Commission.
ACTION: Interim final rule with request for comments.
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SUMMARY: The Panama Canal Commission is today amending its regulations
in Subpart 3509.4 of Title 48, Code of Federal Regulations (CFR),
concerning the debarment, suspension and ineligibility of contractors
or potential contractors to conform with changes in the Federal
Acquisition Regulation (FAR) and to improve the agency's notice and
administrative procedures pertaining to debarment, suspension or
ineligibility.
DATES: Effective February 2, 1996. Comments must be received by April
2, 1996.
ADDRESSES: Interested persons are invited to submit written comments
concerning this rule. Comments must be sent to John A. Mills,
Secretary, Panama Canal Commission, 1825 I Street NW., Suite 1050,
Washington, DC 20006-5402 (Telephone: (202) 634-6441; Facsimile: (202)
634-6439), or Theodore G. Lucas, Deputy General Counsel, Office of
General Counsel, Panama Canal Commission, Unit 2300, APO AA 34011-2300
(Telephone in Republic of Panama: 011 (507) 272-7511; Facsimile: 011
(507) 272-3748).
FOR FURTHER INFORMATION CONTACT: Theodore G. Lucas, Deputy General
Counsel, Office of General Counsel, Panama Canal Commission, or Barbara
Fuller, Assistant to the Secretary for Commission Affairs, Office of
the Secretary, Panama Canal Commission, 1825 I Street NW., Suite 1050,
Washington, DC 20006-5402 (Telephone: (202) 634-6441; Facsimile: (202)
634-6439).
SUPPLEMENTARY INFORMATION: Subpart 3509.4 forms part of the Panama
Canal Commission Acquisition Regulation (PAR) located at Part 3509 of
CFR Title 48. The subpart is being revised at this time to conform with
recent changes to this subpart in the FAR and to improve the agency's
notice and administrative procedures that govern actions pertaining to
debarment, suspension and ineligibility determinations.
The changes substitute ``Procurement Executive'' for ``Chairman of
the Debarment Committee'' in section 3509.404(c), remove paragraph (a)
from section 3509.406-1, the substance of which is now incorporated in
new section 3509.403, add paragraph (c) under section 3509.406-1 to
name the Procurement Executive as the agency head's designee with
respect to the action authorized by FAR 9.406-1(c), and improve the
procedures in section 3509.406-3 by providing a more comprehensive and
efficient system including the use of an independent, non-Government
fact-finding official where fact-finding is required and by improving
the internal processes of investigation, review and recommendation.
Several new sections are added to the subpart. Section 3509.403 is
added to identify the Administrator of the Panama Canal Commission as
the agency's Debarring Official and Suspending Official unless there is
a conflict of interest or a previously established recusal statement in
which case it is the Deputy Administrator. The new section also
introduces and defines the term Fact-finding Official. The appointment
and duties of a Fact-finding Official are developed fully at section
3509.406-3. Sections 3509.405, 3509.405-1 and 3509.405-2 are added to
name the Procurement Executive as the agency head's designee with
respect to the requirements of FAR 9.405 (a) and (d) (2) and (3),
9.405-1 (a) and (c) and 9.405-2(a). Section 3509.406-2 is unchanged.
Sections 3509.406-70, ``Settlement,'' and 3509.406-71, ``Voluntary
Exclusion,'' are added to enable the debarring official to, at his
discretion, resolve a potential debarment without engaging in the
complete debarment process. New sections 3509.407-2, 3509.407-70 and
3509.407-71 are added and section 3509.407-3 is revised to establish
that most of the subpart's provisions concerning debarment apply
equally to suspension. New section 3509.470 is substantively identical
to the existing 3509.406-3(b)(7) and new section 3509.471 is
substantively identical to the existing 3509.406-3(b)(6).
The section and paragraph numbers of this PAR subpart continue to
conform with the corresponding section and paragraph numbers of the
FAR.
The Commission has been exempted from Executive Order 12866 and,
accordingly, the provisions of that directive do not apply to this
rule. Even if the Order were applicable, this rule would not have
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act. Only a very small percentage of
contractors or prospective contractors doing business with the
Commission are debarred or suspended.
The agency has additionally determined the Paperwork Reduction Act
does not apply because these changes to the PAR do not impose
recordkeeping or information collection requirements or collections of
information from offerors, contractors or members of the public which
require the approval of the Office of Management and Budget under 44
U.S.C. 3501, et seq.
Further, the agency has determined implementation of the rule will
have no adverse effect on competition, employment, investment,
productivity or innovation or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic or
export markets.
Finally, the Administrator of the Panama Canal Commission certifies
these regulatory changes meet the applicable standards provided in
sections 2(a) and 2(b)(2) of Executive Order No. 12778.
List of Subjects in 48 CFR Part 3509
Government procurement.
For the reasons set forth in the preamble, 48 CFR Part 3509 is
amended as follows:
PART 3509--CONTRACTOR QUALIFICATIONS
1. The authority citation for Part 3509 continues to read as
follows:
Authority: 40 U.S.C. 486(c).
2. Part 3509 is amended by revising Subpart 3509.4 to read as
follows:
Subpart 3509.4--Debarment, Suspension and Ineligibility
Sec. 3509.400 Scope of subpart.
3509.403 Definitions.
3509.404 List of Parties Excluded from Federal Procurement and
Nonprocurement Programs.
3509.405 Effect of listing.
3509.405-1 Continuation of current contracts.
[[Page 3847]]
3509.405-2 Restrictions on subcontracting.
3509.406 Debarment.
3509.406-1 General.
3509.406-2 Causes for debarment.
3509.406-3 Procedures.
3509.406-70 Settlement.
3509.406-71 Voluntary exclusion.
3509.407 Suspension.
3509.407-2 Causes for suspension.
3509.407-3 Procedures.
3509.407-70 Settlement.
3509.407-71 Voluntary exclusion.
3509.470 Special notice.
3509.471 Equal application.
Subpart 3509.4--Debarment, Suspension and Ineligibility
3509.400 Scope of subpart.
This subpart supplements, and shall be applied in conformity with,
FAR subpart 9.4.
3509.403 Definitions.
Debarring official means the Administrator of the Panama Canal
Commission (hereinafter ``Commission''). In the event the Administrator
is ineligible from participating personally in Commission actions with
respect to the particular contractor, named individual or affiliate
subject to the proposed debarment due to a conflict of interest or in
view of a previously established recusal statement, the Commission
Deputy Administrator shall be the debarring official.
Fact-finding official means a person not employed by the Commission
or any agency of the U.S. Government retained at Commission expense to
conduct fact-finding under this subpart. The individual must have no
prior knowledge of the particular subject matter and no conflict of
interest with respect to any of the parties involved in the debarment
or suspension action. He shall have knowledge of the laws and
regulations governing the federal procurement system, and shall have
experience in receiving evidence and formulating findings of fact.
Suspending official means the Commission Administrator. In the
event the Administrator is ineligible from participating personally in
Commission actions with respect to the particular contractor, named
individual or affiliate subject to the proposed suspension due to a
conflict of interest or in view of a previously established recusal
statement, the Commission Deputy Administrator shall be the suspending
official.
3509.404 List of parties excluded from Federal procurement and
nonprocurement programs.
(c) The Commission Procurement Executive (hereinafter ``PE'') shall
perform the actions required by FAR 9.404(c).
3509.405 Effect of listing.
The PE is the designee of the agency head for the purposes of FAR
9.405(a) and (d)(2) and (3) and may, upon the written recommendation of
the pertinent Head of the Contracting Activity (hereinafter ``HCA''),
make the determinations referenced therein.
3509.405-1 Continuation of current contracts.
The PE is the designee of the agency head for the purposes of FAR
9.405-1(a) and (c) and may, upon the written recommendation of the
pertinent HCA, take the actions referenced therein.
3509.405-2 Restrictions on subcontracting.
(a) The PE is the designee of the agency head for the purposes of
FAR 9.405-2(a) and may, upon the written recommendation of the
pertinent HCA, take the action referenced therein.
3509.406 Debarment.
3509.406-1 General.
(c) The PE is the designee of the agency head for the purposes of
FAR 9.406-1(c) and may, upon the written recommendation of the
pertinent HCA, take the action referenced therein.
3509.406-2 Causes for debarment.
In addition to the causes listed in FAR 9.406-2, the use of a
Panama Canal Commission employee or a member of the Commission's Board
of Directors as an agent or advocate for a Commission contractor, or
prospective contractor, shall be a cause for debarment.
3509.406-3 Procedures.
(a) Investigation and referral.
(1)(i) Any Commission official or employee who suspects or has
knowledge of any conduct, statement, act, or omission of, or
attributable to, a Commission contractor or a potential Commission
contractor which could justify debarment under FAR subpart 9.4 or this
subpart shall immediately report this information to the Commission
General Counsel (hereinafter ``GC'') or to the appropriate contracting
officer.
(ii) Any Commission official or employee who suspects or has
knowledge that a debarred individual or company has reestablished
itself under a new name shall immediately report this information to
the GC or to the appropriate contracting officer.
(2) When the GC receives such information he shall refer the matter
to the appropriate contracting officer for investigation and shall
notify the PE and the pertinent HCA. When the contracting officer
receives such information he shall notify the PE and the pertinent HCA.
(3) The contracting officer shall, in coordination with the
pertinent HCA, promptly investigate the matter, assemble all relevant
information and prepare a written report containing all available
evidentiary material, including copies of indictments and conviction
notices when applicable, and the names of the owners and officers, as
well as any affiliates, of the contractor in question. The written
report shall include a recommendation whether a debarment action should
be commenced and, if so, shall identify the causes for debarment, see
FAR 9.406-2 and 3509.406-2 of this subpart, and identify each company
and individual, including divisions of companies and affiliates, which
the contracting officer recommends should be specifically named in the
action.
(4) The contracting officer shall submit his report to the
pertinent HCA and a copy thereof to the PE and the GC. The HCA shall
study the report and promptly advise the PE, in writing, whether or not
he concurs in the contracting officer's recommendation and shall
explain the reasons for his concurrence or nonconcurrence.
(5) The PE shall study the contracting officer's report and the
recommendation of the HCA. If the HCA and the PE agree that a debarment
action should not be commenced, the PE shall so inform the debarring
official and shall prepare a memorandum for record describing and
closing the matter. If, however, either the HCA or the PE recommend
that a debarment action should be commenced, the PE shall forward the
contracting officer's report to the debarring official, together with
the recommendation of the HCA as well as the PE's own written
recommendation.
(b) Decisionmaking process.
(1) If the debarring official, after reviewing the contracting
officer's report and the recommendations of the HCA and the PE,
considering fully the provisions of FAR 9.402 and 9.406-1(a), and
consulting with the GC, determines there is a reasonable basis to
commence a debarment action, the debarring official shall instruct the
PE to sign and send to each specifically named company, individual or
affiliate to which the action is to apply, via certified mail, return
receipt requested, either:
(i) An informal notice of the Commission's intention to propose
debarment, see 3509.406-3(b)(2) of this subpart; or
[[Page 3848]]
(ii) A formal notice of the Commission's proposal to debar under
FAR 9.406-3(c).
(2) An informal notice of the Commission's intention to propose
debarment shall advise the addressee, in writing, of the following:
(i) The issuance under FAR 9.406-3(c) of a formal notice of
proposal to debar the addressee is seriously being considered by the
Commission;
(ii) The basic factual reasons for the contemplated debarment;
(iii) The causes relied upon under FAR 9.406-2 and 3509.406-2 of
this subpart;
(iv) The Commission's procedures governing the debarment process;
(v) The addressee's right to reply to the PE in writing within 21
calendar days of receipt of the informal notice, and show cause why the
Commission should not issue, to the addressee, a formal notice of
proposal to debar under FAR 9.406-3(c) for the reasons and causes cited
by the Commission;
(vi) That, if the PE does not receive a reply from the addressee to
the informal notice within 21 calendar days of the addressee's receipt
of the informal notice, the Commission will issue to the addressee a
formal notice of proposal to debar;
(vii) The effect of the issuance of a formal notice of proposal to
debar;
(viii) The potential effect of an actual debarment; and
(ix) That, while the Commission will carefully consider the content
of a timely reply to the informal notice, the Commission reserves the
right to issue a formal notice of proposal to debar without additional
discussion or correspondence.
(3) The PE shall study the timely reply of an addressee to an
informal notice and shall forward the reply to the GC and the debarring
official with the PE's evaluation and recommendation.
(4) If, after reviewing a timely reply to an informal notice, as
well as the views of the PE and the GC, the debarring official
determines, considering fully the provisions of FAR 9.402 and 9.406-
1(a), that a formal debarment action should commence, the debarring
official shall instruct the PE to sign and send a formal notice of
proposal to debar to the addressee.
(c) Notice of proposal to debar. In addition to the matters listed
at FAR 9.406-3(c), a formal notice of proposal to debar shall advise
the contractor and any specifically named individual or affiliate of
the specific, fundamental allegations of material fact supporting the
proposed debarment.
(d) Debarring official's decision.
(1) A submission in opposition to the Commission's formal notice of
proposal to debar presented by a contractor, or any named individual or
affiliate, shall include information and argument in opposition to the
proposed debarment, including any additional specific information or
documents that raise a genuine dispute over material facts. The
submission shall be addressed to the PE.
(2) If a timely submission in opposition to a formal notice of
proposal to debar is not presented by a named contractor, individual or
affiliate to whom a formal notice was sent, the PE shall, with respect
only to each such contractor, individual or affiliate that failed to
present a timely submission, study all the information in the
administrative record and shall forward the entire record to the
debarring official with an evaluation and recommendation whether to
debar the nonresponding contractor, individual or affiliate and, if so,
for what period of time.
(3) If a timely submission in opposition to a formal notice of
proposal to debar is submitted in actions based upon a conviction or
civil judgment, the PE shall evaluate all the information in the
administrative record, including the submission in opposition, and
shall forward these materials to the debarring official with a
recommendation whether to debar and, if so, for what period of time.
(4)(i) If a timely submission in opposition to a formal notice of
proposal to debar is presented in actions not based upon a conviction
or civil judgment, the PE shall evaluate the formal notice of proposal
to debar and the submission in opposition and shall determine, with the
advice of the GC, if the submission raises a genuine dispute over any
facts material to the proposed debarment. If it does not, the PE shall
forward the entire administrative record, including the submission in
opposition, to the debarring official with an evaluation and a
recommendation whether to debar and, if so, for what period of time.
(ii) If, however, the PE determines, in consultation with the GC,
that a timely submission in opposition to a formal notice of proposal
to debar in actions not based upon a conviction or civil judgment
raises a genuine dispute over any fact material to the proposed
debarment, the PE shall so advise the contractor, named individual or
affiliate, and shall inquire whether a fact-finding hearing is desired.
If a fact-finding hearing is not requested by the contractor, named
individual or affiliate, the PE shall forward the entire administrative
record, including the submission in opposition, to the debarring
official with an evaluation and a recommendation whether to debar and,
if so, for what period of time.
(iii) If a fact-finding hearing is requested, the PE shall appoint
a fact-finding official to whom all matters involving disputed material
facts shall be referred. The PE will provide the fact-finding official
with a copy of the entire administrative record including the
submission in opposition. The fact-finding official shall study the
Commission's notice(s) of proposal to debar and the submission(s) in
opposition, and shall identify specifically the material facts in
genuine dispute and so advise the pertinent contractor, named
individual or affiliate, as well as the Commission's designated
advocate in the Office of General Counsel. A fact-finding hearing shall
be scheduled and conducted by the fact-finding official, and shall take
place in a Commission facility in Panama unless the fact-finding
official determines that fundamental fairness compels the use of
another location. The rules governing the fact-finding hearing shall be
established by the fact-finding official but shall conform fully with
FAR 9.406-3(b)(2) and (d)(2) and (3).
(5) The fact-finding official shall present written findings of
fact and the transcribed record of the hearing, if made, to the
debarring official within 21 calendar days from his receipt of the
transcript or from the final day of the hearing if no transcript is
ordered. The findings shall resolve each material fact previously
determined to be in genuine dispute based on a preponderance of the
evidence presented.
(6) Upon receiving the complete administrative record and the
evaluation and recommendation of the PE or, if there was a fact-finding
hearing, upon receiving the hearing record and the findings of fact of
the fact-finding official and the evaluation and recommendation of the
PE, the debarring official shall, considering fully the provisions of
FAR 9.402 and 9.406-1(a), make a final decision whether to impose
debarment. If debarment is chosen, the debarring official shall also
determine the period of debarment.
(e) Notice of debarring official's decision. The debarring official
shall promptly notify the contractor and any named individual or
affiliate of the final decision in writing by certified mail, return
receipt requested.
3509.406-70 Settlement.
(a) At any time prior to the debarring official's issuance of a
final decision whether to debar, the debarring official may, in the
best interests of the U.S.
[[Page 3849]]
Government, forgo or withdraw a proposed debarment by entering into a
written agreement with the contractor, named individual or affiliate,
in which the contractor, individual or affiliate agrees to perform,
accomplish or implement such remedial measures or mitigating factors as
are listed at FAR 9.406-1(a). The contractor, individual or affiliate
shall also agree that its failure to observe any term or condition of
the agreement shall constitute sufficient cause for the immediate
imposition of debarment by the debarring official without entitlement
to a fact-finding hearing.
(b) The debarring official shall not enter into a settlement
agreement if the proposed debarment is based on a conviction of or
civil judgment for any of the causes in FAR 9.406-2(a).
3509.406-71 Voluntary exclusion.
(a)(1) At any time prior to the debarring official's issuance of a
final decision whether to debar, the debarring official may, in the
best interests of the U.S. Government, forgo or withdraw a proposed
debarment by entering into a written agreement with the contractor,
named individual or affiliate, in which the contractor, individual or
affiliate agrees to voluntarily refrain, for a specified period of
time, from attempting to obtain, and from entering into, any contract,
purchase agreement or other form of contractual relationship,
regardless of dollar amount, with, as the debarring official may
determine, either: (i) the Commission; or (ii) the Commission and one
or more, or all, other agencies, departments or entities of the U.S.
Government.
(2) A voluntary exclusion will not be reported to the GSA nor
appear in the ``List of Parties Excluded from Federal Procurement and
Nonprocurement Programs,'' and if the contractor, individual or
affiliate is currently listed due to a Commission notice of proposal to
debar the PE will advise the GSA of the voluntary exclusion and request
the immediate cessation of the listing. The contractor, individual or
affiliate shall agree that its failure to observe any term or condition
of the voluntary exclusion shall constitute sufficient cause for the
immediate imposition of debarment by the debarring official without
entitlement to a fact-finding hearing.
(b) The debarring official shall not enter into a voluntary
exclusion agreement if the proposed debarment is based on a conviction
of or civil judgment for any of the causes in FAR 9.406-2(a).
3509.407 Suspension.
3509.407-2 Causes for suspension.
In addition to the causes listed in FAR 9.407-2, the cause for
debarment identified in 48 CFR (PAR) 3509.406-2 also applies to
suspension actions.
3509.407-3 Procedures.
(a) The procedures set forth in 48 CFR (PAR) 3509.406-3 for
debarment also apply, insofar as they are compatible with the
procedures set forth in FAR 9.407-3, to suspension actions except those
procedures identified in paragraph (b) of this subsection.
(b) The following procedures in 48 CFR (PAR) 3509.406-3 do not
apply to suspension actions: 3509.406-3(b)(1)(i), 3509.406-3(b) (2)
through (4) and 3509.406-3(c).
(c) Notice of suspension. In addition to the matters listed at FAR
9.407-3(c), in actions not based on an indictment, a notice of
suspension shall advise the contractor and any specifically named
individual or affiliate of the specific, fundamental allegations of
material fact supporting the suspension.
3509.407-70 Settlement.
Where a suspension is being considered, the suspending official may
enter into a settlement agreement in the same manner and under the same
terms as are provided in 48 CFR (PAR) 3509.406-70.
3509.407-71 Voluntary exclusion.
Where a suspension is being considered, the suspending official may
enter into a voluntary exclusion agreement in the same manner and under
the same terms as are provided in 48 CFR (PAR) 3509.406-71.
3509.470 Special notice.
The Commander in Chief, United States Southern Command, shall be
notified by the Procurement Executive of the issuance of any Commission
notice of proposal to debar and of any debarment or suspension decision
made by the debarring or suspending official.
3509.471 Equal application.
These procedures for debarment and suspension apply equally to all
firms, individuals and affiliates doing business with the Panama Canal
Commission regardless of their nationality, residence or location.
Dated: January 24, 1996.
Gilberto Guardia F.,
Administrator, Panama Canal Commission.
[FR Doc. 96-2044 Filed 2-1-96; 8:45 am]
BILLING CODE 3640-04-P
