CFR Subpart H

CFR Subpart H
in effect

5 C.F.R. § 919.800 What are the causes for debarment?

We may debar a person for— (a) Conviction of or civil judgment for— (1) Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public or private agreement or transaction; (2) Violation of Federal or State antitrust statutes, including those proscribing price fixing between competitors, allocation of customers between competitors, and bid rigging; (3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, receiving stolen property, making false claims, or obstruction of justice; or (4) Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects your present responsibility; (b) Violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program, such as— (1) A willful failure to perform in accordance with the terms of one or more public agreements or transactions; (2) A history of failure to perform or of unsatisfactory performance of one or more public agreements or transactions; or (3) A willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction; (c) Any of the following causes: (1) A nonprocurement debarment by any Federal agency taken before October 1, 1988, or a procurement debarment by any Federal agency taken pursuant to 48 CFR part 9, subpart 9.4, before August 25, 1995; (2) Knowingly doing business with an ineligible person, except as permitted under § 919.120; (3) Failure to pay a single substantial debt, or a number of outstanding debts (including disallowed costs and overpayments, but not including sums owed the Federal Government under the Internal Revenue Code) owed to any Federal agency or instrumentality, provided the debt is uncontested by the debtor or, if contested, provided that the debtor's legal and administrative remedies have been exhausted; (4) Violation of a material provision of a voluntary exclusion agreement entered into under § 919.640 or of any settlement of a debarment or suspension action; or (5) Violation of the provisions of the Drug-Free Workplace Act of 1988 (41 U.S.C. 701); or (d) Any other cause of so serious or compelling a nature that it affects your present responsibility.

5 C.F.R. § 919.805 What notice does the debarring official give me if I am proposed for debarment?

After consideration of the causes in § 919.800 of this subpart, if the debarring official proposes to debar you, the official sends you a Notice of Proposed Debarment, pursuant to § 919.615, advising you— (a) That the debarring official is considering debarring you; (b) Of the reasons for proposing to debar you in terms sufficient to put you on notice of the conduct or transactions upon which the proposed debarment is based; (c) Of the cause(s) under § 919.800 upon which the debarring official relied for proposing your debarment; (d) Of the applicable provisions of this subpart, Subpart F of this part, and any other OPM procedures governing debarment; and (e) Of the governmentwide effect of a debarment from procurement and nonprocurement programs and activities.

5 C.F.R. § 919.810 When does a debarment take effect?

A debarment is not effective until the debarring official issues a decision. The debarring official does not issue a decision until the respondent has had an opportunity to contest the proposed debarment.

5 C.F.R. § 919.815 How may I contest a proposed debarment?

If you as a respondent wish to contest a proposed debarment, you or your representative must provide the debarring official with information in opposition to the proposed debarment. You may do this orally or in writing, but any information provided orally that you consider important must also be submitted in writing for the official record.

5 C.F.R. § 919.820 How much time do I have to contest a proposed debarment?

(a) As a respondent you or your representative must either send, or make arrangements to appear and present, the information and argument to the debarring official within 30 days after you receive the Notice of Proposed Debarment. (b) We consider the Notice of Proposed Debarment to be received by you— (1) When delivered, if we mail the notice to the last known street address, or five days after we send it if the letter is undeliverable; (2) When sent, if we send the notice by facsimile or five days after we send it if the facsimile is undeliverable; or (3) When delivered, if we send the notice by e-mail or five days after we send it if the e-mail is undeliverable.

5 C.F.R. § 919.825 What information must I provide to the debarring official if I contest a proposed debarment?

(a) In addition to any information and argument in opposition, as a respondent your submission to the debarring official must identify— (1) Specific facts that contradict the statements contained in the Notice of Proposed Debarment. Include any information about any of the factors listed in § 919.860. A general denial is insufficient to raise a genuine dispute over facts material to the debarment; (2) All existing, proposed, or prior exclusions under regulations implementing E.O. 12549 and all similar actions taken by Federal, State, or local agencies, including administrative agreements that affect only those agencies; (3) All criminal and civil proceedings not included in the Notice of Proposed Debarment that grew out of facts relevant to the cause(s) stated in the notice; and (4) All of your affiliates. (b) If you fail to disclose this information, or provide false information, the OPM may seek further criminal, civil or administrative action against you, as appropriate.

5 C.F.R. § 919.830 Under what conditions do I get an additional opportunity to challenge the facts on which a proposed debarment is based?

(a) You as a respondent will not have an additional opportunity to challenge the facts if the debarring official determines that— (1) Your debarment is based upon a conviction or civil judgment; (2) Your presentation in opposition contains only general denials to information contained in the Notice of Proposed Debarment; or (3) The issues raised in your presentation in opposition to the proposed debarment are not factual in nature, or are not material to the debarring official's decision whether to debar. (b) You will have an additional opportunity to challenge the facts if the debarring official determines that— (1) The conditions in paragraph (a) of this section do not exist; and (2) Your presentation in opposition raises a genuine dispute over facts material to the proposed debarment. (c) If you have an opportunity to challenge disputed material facts under this section, the debarring official or designee must conduct additional proceedings to resolve those facts.

5 C.F.R. § 919.835 Are debarment proceedings formal?

(a) Debarment proceedings are conducted in a fair and informal manner. The debarring official may use flexible procedures to allow you as a respondent to present matters in opposition. In so doing, the debarring official is not required to follow formal rules of evidence or procedure in creating an official record upon which the official will base the decision whether to debar. (b) You or your representative must submit any documentary evidence you want the debarring official to consider.

5 C.F.R. § 919.840 How is fact-finding conducted?

(a) If fact-finding is conducted— (1) You may present witnesses and other evidence, and confront any witness presented; and (2) The fact-finder must prepare written findings of fact for the record. (b) A transcribed record of fact-finding proceedings must be made, unless you as a respondent and the OPM agree to waive it in advance. If you want a copy of the transcribed record, you may purchase it.

5 C.F.R. § 919.845 What does the debarring official consider in deciding whether to debar me?

(a) The debarring official may debar you for any of the causes in § 919.800. However, the official need not debar you even if a cause for debarment exists. The official may consider the seriousness of your acts or omissions and the mitigating or aggravating factors set forth at § 919.860. (b) The debarring official bases the decision on all information contained in the official record. The record includes— (1) All information in support of the debarring official's proposed debarment; (2) Any further information and argument presented in support of, or in opposition to, the proposed debarment; and (3) Any transcribed record of fact-finding proceedings. (c) The debarring official may refer disputed material facts to another official for findings of fact. The debarring official may reject any resultant findings, in whole or in part, only after specifically determining them to be arbitrary, capricious, or clearly erroneous.

5 C.F.R. § 919.850 What is the standard of proof in a debarment action?

(a) In any debarment action, we must establish the cause for debarment by a preponderance of the evidence. (b) If the proposed debarment is based upon a conviction or civil judgment, the standard of proof is met.

5 C.F.R. § 919.855 Who has the burden of proof in a debarment action?

(a) We have the burden to prove that a cause for debarment exists. (b) Once a cause for debarment is established, you as a respondent have the burden of demonstrating to the satisfaction of the debarring official that you are presently responsible and that debarment is not necessary.

5 C.F.R. § 919.860 What factors may influence the debarring official's decision?

This section lists the mitigating and aggravating factors that the debarring official may consider in determining whether to debar you and the length of your debarment period. The debarring official may consider other factors if appropriate in light of the circumstances of a particular case. The existence or nonexistence of any factor, such as one of those set forth in this section, is not necessarily determinative of your present responsibility. In making a debarment decision, the debarring official may consider the following factors: (a) The actual or potential harm or impact that results or may result from the wrongdoing. (b) The frequency of incidents and/or duration of the wrongdoing. (c) Whether there is a pattern or prior history of wrongdoing. For example, if you have been found by another Federal agency or a State agency to have engaged in wrongdoing similar to that found in the debarment action, the existence of this fact may be used by the debarring official in determining that you have a pattern or prior history of wrongdoing. (d) Whether you are or have been excluded or disqualified by an agency of the Federal Government or have not been allowed to participate in State or local contracts or assistance agreements on a basis of conduct similar to one or more of the causes for debarment specified in this part. (e) Whether you have entered into an administrative agreement with a Federal agency or a State or local government that is not governmentwide but is based on conduct similar to one or more of the causes for debarment specified in this part. (f) Whether and to what extent you planned, initiated, or carried out the wrongdoing. (g) Whether you have accepted responsibility for the wrongdoing and recognize the seriousness of the misconduct that led to the cause for debarment. (h) Whether you have paid or agreed to pay all criminal, civil and administrative liabilities for the improper activity, including any investigative or administrative costs incurred by the government, and have made or agreed to make full restitution. (i) Whether you have cooperated fully with the government agencies during the investigation and any court or administrative action. In determining the extent of cooperation, the debarring official may consider when the cooperation began and whether you disclosed all pertinent information known to you. (j) Whether the wrongdoing was pervasive within your organization. (k) The kind of positions held by the individuals involved in the wrongdoing. (l) Whether your organization took appropriate corrective action or remedial measures, such as establishing ethics training and implementing programs to prevent recurrence. (m) Whether your principals tolerated the offense. (n) Whether you brought the activity cited as a basis for the debarment to the attention of the appropriate government agency in a timely manner. (o) Whether you have fully investigated the circumstances surrounding the cause for debarment and, if so, made the result of the investigation available to the debarring official. (p) Whether you had effective standards of conduct and internal control systems in place at the time the questioned conduct occurred. (q) Whether you have taken appropriate disciplinary action against the individuals responsible for the activity which constitutes the cause for debarment. (r) Whether you have had adequate time to eliminate the circumstances within your organization that led to the cause for the debarment. (s) Other factors that are appropriate to the circumstances of a particular case.

5 C.F.R. § 919.865 How long may my debarment last?

(a) If the debarring official decides to debar you, your period of debarment will be based on the seriousness of the cause(s) upon which your debarment is based. Generally, debarment should not exceed three years. However, if circumstances warrant, the debarring official may impose a longer period of debarment. (b) In determining the period of debarment, the debarring official may consider the factors in § 919.860. If a suspension has preceded your debarment, the debarring official must consider the time you were suspended. (c) If the debarment is for a violation of the provisions of the Drug-Free Workplace Act of 1988, your period of debarment may not exceed five years.

5 C.F.R. § 919.870 When do I know if the debarring official debars me?

(a) The debarring official must make a written decision whether to debar within 45 days of closing the official record. The official record closes upon the debarring official's receipt of final submissions, information and findings of fact, if any. The debarring official may extend that period for good cause. (b) The debarring official sends you written notice, pursuant to § 919.615 that the official decided, either— (1) Not to debar you; or (2) To debar you. In this event, the notice: (i) Refers to the Notice of Proposed Debarment; (ii) Specifies the reasons for your debarment; (iii) States the period of your debarment, including the effective dates; and (iv) Advises you that your debarment is effective for covered transactions and contracts that are subject to the Federal Acquisition Regulation (48 CFR chapter 1), throughout the executive branch of the Federal Government unless an agency head or an authorized designee grants an exception.

5 C.F.R. § 919.875 May I ask the debarring official to reconsider a decision to debar me?

Yes, as a debarred person you may ask the debarring official to reconsider the debarment decision or to reduce the time period or scope of the debarment. However, you must put your request in writing and support it with documentation.

5 C.F.R. § 919.880 What factors may influence the debarring official during reconsideration?

The debarring official may reduce or terminate your debarment based on— (a) Newly discovered material evidence; (b) A reversal of the conviction or civil judgment upon which your debarment was based; (c) A bona fide change in ownership or management; (d) Elimination of other causes for which the debarment was imposed; or (e) Other reasons the debarring official finds appropriate.

5 C.F.R. § 919.885 May the debarring official extend a debarment?

(a) Yes, the debarring official may extend a debarment for an additional period, if that official determines that an extension is necessary to protect the public interest. (b) However, the debarring official may not extend a debarment solely on the basis of the facts and circumstances upon which the initial debarment action was based. (c) If the debarring official decides that a debarment for an additional period is necessary, the debarring official must follow the applicable procedures in this subpart, and subpart F of this part, to extend the debarment.

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