[Code of Federal Regulations]

[Title 13, Volume 1]

[Revised as of January 1, 2006]

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

[CITE: 13CFR124.305]



[Page 384-385]

 

                TITLE 13--BUSINESS CREDIT AND ASSISTANCE

 

                CHAPTER I--SMALL BUSINESS ADMINISTRATION

 

PART 124_8(a) BUSINESS DEVELOPMENT/SMALL DISADVANTAGED BUSINESS STATUS 

DETERMINATIONS--Table of Contents

 

                   Subpart A_8(a) Business Development

 

Sec. 124.305  What is suspension and how is a Participant suspended 

from the 8(a) BD program?



    (a) At any time after SBA issues a Letter of Intent to Terminate 

pursuant to Sec. 124.304, the AA/8(a)BD may suspend 8(a) contract 

support and all other forms of 8(a) BD program assistance to that 

concern until the issue of the concern's termination from the program is 

finally decided. The AA/8(a)BD may suspend a Participant when he or she 

determines that suspension is needed to protect the interests of the 

Federal Government, such as where information showing a clear lack of 

program eligibility or conduct indicating a lack of business integrity 

exists, including where the concern or one of its principals submitted 

false statements to the Federal Government. SBA will suspend a 

Participant where SBA determines that the Participant submitted false 

information in its 8(a) BD application.

    (b) SBA will issue a Notice of Suspension to the Participant's last 

known address by certified mail, return receipt requested. Suspension is 

effective as of the date of the issuance of the Notice. The Notice will 

provide the following information:

    (1) The basis for the suspension;

    (2) A statement that the suspension will continue pending the 

completion of further investigation, a final program termination 

determination, or some other specified period of time;

    (3) A statement that awards of competitive and non-competitive 8(a) 

contracts, including those which have been ``self-marketed'' by a 

Participant, will not be made during the pendency of the suspension 

unless it is determined by the head of the relevant procuring agency or 

an authorized representative to be in the best interest of the 

Government to do so, and SBA adopts that determination;

    (4) A statement that the concern is obligated to complete previously 

awarded section 8(a) contracts;

    (5) A statement that the suspension is effective nationally 

throughout SBA;

    (6) A statement that a request for a hearing on the suspension will 

be considered by an Administrative Law Judge at OHA, and granted or 

denied as a matter of discretion.

    (7) A statement that the firm's participation in the program is 

suspended effective on the date the Notice is served, and that the 

program term will resume only if the suspension is lifted or the firm is 

not terminated.

    (c) The Participant may appeal a Notice of Suspension by filing a 

petition in accordance with part 134 of this chapter with OHA within 45 

days after the concern receives the Notice of Suspension pursuant to 

paragraph (b) of this section. It is contemplated that in most cases a 

hearing on the issue of the suspension will be afforded if the 

Participant requests one, but authority to grant a hearing is within the 

discretion of the Administrative Law Judge in OHA. A suspension remains 

in effect pending the result of its appeal.

    (d) SBA has the burden of showing that adequate evidence exists that 

protection of the Federal Government's interest requires suspension 

before OHA or the AA/8(a)BD makes a final determination regarding the 

termination action.

    (1) The term ``adequate evidence'' means information contained in 

the record before the AA/8(a)BD at the time of his or her suspension 

decision that is sufficient to support the reasonable belief that the 

Government's interests need to be protected.

    (2) SBA need not demonstrate that an act or omission actually 

occurred in order for OHA to uphold a suspension. SBA's burden in a 

suspension proceeding is limited to demonstrating that it had a 

reasonable belief that a particular act or omission occurred, and that 

that act or omission requires suspension to protect the interests of the 

Government.

    (3) Unless the Administrative Law Judge consolidates the suspension 

and termination proceedings, OHA's review is limited to determining 

whether the



[[Page 385]]



Government's interests need to be protected, and will not consider the 

merits of the termination action.

    (e) If there is a timely appeal, the decision of the Administrative 

Law Judge is the final SBA decision. If there is not a timely appeal, 

the decision of the AA/8(a)BD is the final Agency decision.

    (f) Upon the request of SBA, OHA may consolidate suspension and 

termination proceedings when the issues presented are identical.

    (g) Any program suspension which occurs under this section is 

effective until such time as SBA lifts the suspension or the 

Participant's participation in the program is fully terminated. If the 

concern is ultimately not terminated from the 8(a) BD program, the 

suspension will be lifted and the length of the suspension will be added 

to the concern's program term.

    (h) SBA may suspend a Participant from program benefits where a 

change of ownership or business structure has been requested if 

ownership or control of the participant changed prior to SBA's approval 

pending resolution of the request to change its ownership or control. If 

the change of ownership is approved, the length of the suspension will 

be added to the firm's program term where the change in ownership 

results from the death or incapacity of a disadvantaged individual or 

where the firm requested prior approval and waited 60 days for SBA 

approval before making the change. The suspension will be commenced by 

the issuance of a notice similar to that required for termination-

related suspensions under paragraph (b) of this section, except that a 

change of ownership suspension is not appealable.

    (i) SBA does not recognize the concept of de facto suspension. 

Adding time to the end of a Participant's program term equal to the 

length of a suspension will occur only where a concern's program 

participation has been formally suspended in accordance with the 

procedures set forth in this section.

    (j) A suspension from 8(a) BD participation under this section has 

no effect on a concern's eligibility for non-8(a) Federal Government 

contracts. However, a debarment or suspension under the Federal 

Acquisition Regulation (48 CFR, chapter 1) will disqualify a concern 

from receiving all Federal Government contracts, including 8(a) 

contracts.



[63 FR 35739, June 30, 1998, as amended at 67 FR 47246, July 18, 2002]



                          Business Development