[Code of Federal Regulations]

[Title 48, Volume 1]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 48CFR3.104-7]



[Page 48-49]

 

            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM

 

                CHAPTER 1--FEDERAL ACQUISITION REGULATION

 

PART 3_IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST--Table of Contents

 

                         Subpart 3.1_Safeguards

 

Sec. 3.104-7  Violations or possible violations.



    (a) A contracting officer who receives or obtains information of a 

violation or possible violation of subsection 27(a), (b), (c), or (d) of 

the Act (see 3.104-3) must determine if the reported violation or 

possible violation has any impact on the pending award or selection of 

the contractor.

    (1) If the contracting officer concludes that there is no impact on 

the procurement, the contracting officer must forward the information 

concerning the violation or possible violation and documentation 

supporting a determination that there is no impact on the procurement to 

an individual designated in accordance with agency procedures.

    (i) If that individual concurs, the contracting officer may proceed 

with the procurement.

    (ii) If that individual does not concur, the individual must 

promptly forward the information and documentation to the HCA and advise 

the contracting officer to withhold award.

    (2) If the contracting officer concludes that the violation or 

possible violation impacts the procurement, the contracting officer must 

promptly forward the information to the HCA.

    (b) The HCA must review all information available and, in accordance 

with agency procedures, take appropriate action, such as--

    (1) Advise the contracting officer to continue with the procurement;

    (2) Begin an investigation;

    (3) Refer the information disclosed to appropriate criminal 

investigative agencies;

    (4) Conclude that a violation occurred; or

    (5) Recommend that the agency head determine that the contractor, or 

someone acting for the contractor, has engaged in conduct constituting 

an offense punishable under subsection 27(e) of the Act, for the purpose 

of voiding or rescinding the contract.

    (c) Before concluding that an offeror, contractor, or person has 

violated the Act, the HCA may consider that the interests of the 

Government are best served by requesting information from appropriate 

parties regarding the violation or possible violation.



[[Page 49]]



    (d) If the HCA concludes that section 27 of the Act has been 

violated, the HCA may direct the contracting officer to--

    (1) If a contract has not been awarded--

    (i) Cancel the procurement;

    (ii) Disqualify an offeror; or

    (iii) Take any other appropriate actions in the interests of the 

Government.

    (2) If a contract has been awarded--

    (i) Effect appropriate contractual remedies, including profit 

recapture under the clause at 52.203-10, Price or Fee Adjustment for 

Illegal or Improper Activity, or, if the contract has been rescinded 

under paragraph (d)(2)(ii) of this subsection, recovery of the amount 

expended under the contract;

    (ii) Void or rescind the contract with respect to which--

    (A) The contractor or someone acting for the contractor has been 

convicted for an offense where the conduct constitutes a violation of 

subsection 27(a) or (b) of the Act for the purpose of either--

    (1) Exchanging the information covered by the subsections for 

anything of value; or

    (2) Obtaining or giving anyone a competitive advantage in the award 

of a Federal agency procurement contract; or

    (B) The agency head has determined, based upon a preponderance of 

the evidence, that the contractor or someone acting for the contractor 

has engaged in conduct constituting an offense punishable under 

subsection 27(e)(1) of the Act; or

    (iii) Take any other appropriate actions in the best interests of 

the Government.

    (3) Refer the matter to the agency suspending or debarring official.

    (e) The HCA should recommend or direct an administrative or 

contractual remedy commensurate with the severity and effect of the 

violation.

    (f) If the HCA determines that urgent and compelling circumstances 

justify an award, or award is otherwise in the interests of the 

Government, the HCA, in accordance with agency procedures, may authorize 

the contracting officer to award the contract or execute the contract 

modification after notifying the agency head.

    (g) The HCA may delegate his or her authority under this subsection 

to an individual at least one organizational level above the contracting 

officer and of General Officer, Flag, Senior Executive Service, or 

equivalent rank.



[67 FR 13059, Mar. 20, 2002]