[Federal Register Volume 76, Number 190 (Friday, September 30, 2011)]
[Notices]
[Pages 60838-60840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25228]
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GOVERNMENT ACCOUNTABILITY OFFICE
Debarment, Suspension, and Ineligibility of Contractors
AGENCY: Government Accountability Office.
ACTION: Proposed policy statement with request for comments.
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SUMMARY: The Government Accountability Office (GAO) is providing notice
of its intent to adopt the policies and procedures contained in the
Federal Acquisition Regulation (FAR) regarding the debarment,
suspension, and ineligibility of government contractors. As a
legislative branch agency, GAO is not subject to the requirements of
the FAR. However, it is GAO's general policy to follow the FAR, as
appropriate and applicable. Mandatory application of the FAR is not to
be inferred from GAO's adoption of this policy.
GAO's procurement rules are not contained in the Code of Federal
Regulations, but instead are contained in an internal GAO document
referred to as ``Government Accountability Office Procurement
Guidelines'' (hereinafter, GAO's Procurement Order). As such, the
proposed policy regarding debarment and suspension will be added as a
chapter to GAO's Procurement Order. However, persons or entities
seeking government contracts could potentially be adversely affected
if, pursuant to the proposed policy, they were debarred, suspended, or
proposed for debarment by GAO. As such, GAO is providing interested
persons an opportunity for notice and comment on this proposed policy.
DATE: Comments must be received on or before November 14, 2011.
GAO will publish the effective date of the proposed policy when
responding to comments in a future Federal Register.
ADDRESSES: Address all comments concerning this proposed policy to
Government Accountability Office, Office of the General Counsel, Attn:
Legal Services, Room 7838, 441 G Street, NW., Washington, DC 20548; or
e-mail, [email protected].
FOR FURTHER INFORMATION CONTACT: John A. Bielec, Assistant General
Counsel, 202-512-2846.
SUPPLEMENTARY INFORMATION: GAO is not subject to the Administrative
Procedure Act and accordingly, is not required by law to seek comments
before issuing a policy that has general applicability and legal
effect. However, GAO has decided to invite interested persons to
comment on this proposed
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policy by submitting written comments. Application of the
Administrative Procedure Act to GAO is not to be inferred from this
invitation for comments.
GAO will consider all comments received on or before the closing
date for comments. GAO may change the proposed policy based on the
comments received.
Under GAO's proposed policy, GAO will follow FAR Subpart 9.4. GAO's
Procurement Order, GAO Order 0625.1, states that it is GAO's policy to
follow the FAR and GAO has long-maintained procedures, consistent with
FAR Subpart 9.4, that ensure that it contracts only with those entities
and individuals (hereinafter, contractors) who are responsible.
However, GAO's Procurement Order has not explicitly referenced the
debarment and suspension procedures contained in FAR Subpart 9.4. To
make clear that FAR Subpart 9.4 applies, GAO is amending its
Procurement Order to formally and explicitly adopt FAR Subpart 9.4.
Except as provided in FAR Subpart 9.4, GAO will not solicit offers
from, award contracts to, or consent to subcontracts with, contractors
who are listed on the Excluded Parties List System (EPLS), which is
maintained by the General Services Administration. Further, if GAO
debars, proposes for debarment, or suspends a contractor, GAO will,
consistent with FAR Subpart 9.4, list that contractor in the EPLS.
Given that GAO is a legislative branch agency, the listing of a
contractor in the EPLS by GAO will have mandatory effect only as to
GAO. Consistent with FAR 9.405-1, GAO may continue an existing contract
with a contractor despite the fact that the contractor has subsequently
been debarred, proposed for debarment, or suspended.
Consistent with the definitions of ``debarring official'' and
``suspending official'' contained at FAR 9.403, the Comptroller
General, as the head of GAO, will serve as the debarring official and
suspending official (hereinafter, debarment/suspension official). The
Comptroller General may designate another GAO official to serve as the
debarment/suspension official. The Comptroller General will also be
responsible for deciding whether to solicit offers from, award
contracts to, or consent to subcontracts with contractors who have been
debarred, suspended, or proposed for debarment, and whether to
terminate a current contract or subcontract in existence at the time
the contractor was debarred, suspended, or proposed for debarment.
GAO's Acquisition Management office (AM), which is responsible for
the majority of GAO's contracting activities, will be designated as the
GAO unit with primary responsibility for investigating and referring
potential debarment and suspension actions to the debarment/suspension
official for his or her consideration. GAO's procurement activities are
largely centralized in AM, which is staffed by contracting officers and
other acquisition professionals. As such, AM staff has the required
technical knowledge to handle debarment and suspension referrals and is
in the best position to learn of matters that may warrant debarment
and/or suspension. Moreover, AM is the first point of contact for
Contracting Officer's Representatives, who have direct knowledge of any
problems with contractor performance. Thus, individuals--including GAO
employees and members of the public--who believe that there may be
grounds to debar or suspend a contractor should contact AM and provide
them with all relevant information. Whenever AM learns of information
that indicates there may be grounds for debarring or suspending a
contractor, AM will gather appropriate information and refer the matter
to the debarment/suspension official. All such referrals will include a
recommendation by the Director of AM as to a proposed course of action.
Likewise, AM will have responsibility for recommending to the
Comptroller General whether or not to continue current contracts with,
solicit offers from, award contracts to, or consent to subcontracts
with a contractor who is debarred, suspended, or proposed for
debarment.
Given its central role in GAO's procurement process, AM, in
consultation with GAO's Office of General Counsel, will also be
responsible for establishing written procedures that address the key
aspects of GAO's debarment/suspension program.
Accordingly, the Government Accountability Office proposes to adopt
the following policy and incorporate it into GAO's Procurement Order:
GAO will follow the policies and procedures contained at FAR
Subpart 9.4--Debarment, Suspension, and Ineligibility. GAO will not
solicit offers from, award contracts to, or consent to subcontracts
with contractors who are listed on the Excluded Parties List System
(EPLS), except as otherwise provided for in FAR Subpart 9.4. GAO will
report to the EPLS any contractor GAO debars, suspends, or proposes for
debarment. Such action will have mandatory application only to GAO.
Notwithstanding the debarment, suspension, or proposed debarment of a
contractor, GAO may continue contracts or subcontracts in existence at
the time the contractor was debarred, suspended, or proposed for
debarment, unless the Comptroller General (CG) directs otherwise.
The CG or a designee will serve as the debarring official and
suspending official (debarment/suspension official). The CG will also
decide whether to solicit offers from, award contracts to, or consent
to subcontracts with contractors who have been debarred, suspended, or
proposed for debarment and whether to terminate a current contract or
subcontract in existence at the time the contractor was debarred,
suspended, or proposed for debarment.
Acquisition Management (AM) will have primary responsibility for
investigating and referring potential debarment/suspension actions to
the debarment/suspension official for consideration. As such, any
person who believes that there may be grounds to debar or suspend a
person or entity from contracting with GAO should contact AM and
provide them with all relevant information.
AM will also have responsibility for recommending to the CG whether
or not to continue current contracts with, solicit offers from, award
contracts to, or consent to subcontracts with a contractor who is
debarred, suspended, or proposed for debarment. In consultation with
the Office of General Counsel, AM will establish and maintain written
procedures for:
(1) The prompt reporting, investigation, and referral to the
debarment/suspension official of matters appropriate for that
official's consideration. All debarment/suspension referrals shall
include a recommendation by the Director of AM as to a proposed course
of action;
(2) The debarment decisionmaking process, which shall afford the
contractor (and any specifically named affiliates) an opportunity to
submit, in person, in writing, or through a representative, information
and argument in opposition to the proposed debarment;
(3) The suspension decisionmaking process, which shall afford the
contractor (and any specifically named affiliates) an opportunity,
following the imposition of suspension, to submit, in person, in
writing, or through a representative, information and argument in
opposition to the suspension;
(4) Recommending to the CG whether or not to solicit offers from,
award contracts to, or consent to subcontracts
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with a contractor who is debarred, suspended, or proposed for
debarment; and
(5) Recommending to the CG whether or not to continue current
contracts with a contractor or subcontractor who is debarred,
suspended, or proposed for debarment.
OGC will review for legal sufficiency:
(1) Referrals by AM to the debarment/suspension official;
(2) Recommendations by AM to the CG that GAO solicit offers from,
award contracts to, or consent to subcontracts with a contractor who is
listed in the EPLS debarred, suspended, or proposed for debarment;
(3) Recommendations by AM to the CG to terminate a current contract
because a contractor or subcontractor was subsequently debarred,
suspended, or proposed for debarment; and
(4) Notices of proposed debarment, notices of suspension, or any
other communication to a contractor regarding that contractor's
potential or actual suspension or debarment.
Lynn H. Gibson,
General Counsel, U.S. Government Accountability Office.
[FR Doc. 2011-25228 Filed 9-29-11; 8:45 am]
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