DATE: August 29, 2012
ADMINISTRATIVE EDIT: August 30, 2017
SUBJECT: Procurement and Non-Procurement Suspension and Debarment
- PURPOSE. This Directive establishes policy and assigns responsibilities for procurement and non-procurement suspensions and debarments.
- SCOPE. This Directive applies to all bureaus, offices and organizations in the Department of the Treasury, including the Inspectors Generals for the Department. The authority of the Inspectors General is set forth in Section 3 of the Inspector General Act and the Internal Revenue Service Restructuring and Reform Act, and defined in Treasury Order 114-01 (OIG) and Treasury Order 115-01 (TIGTA), or the Emergency Economic Stabilization Act of 2008 (SIGTARP). The provisions of this directive shall not interfere with the authorities or independence of these Inspectors General.
- POLICY. This Directive establishes the Senior Procurement Executive (SPE) as the Suspension and Debarment Official (SDO) for procurement and non-procurement suspensions and debarments within the Department of the Treasury. It sets forth the roles and responsibilities of all relevant parties regarding suspensions and debarments within the Department. Suspension and debarment shall be considered when a contractor or person involved in a covered transaction engages in activity that potentially is cause for suspension and/or debarment. Grounds for suspension may be found in Federal Acquisition Regulation (FAR) 9.407-2 (procurement) and 31 C.F.R. 19.700 (non-procurement) and for debarment at FAR 9.406-2 (procurement) and 31 C.F.R. 19.800 (non-procurement). The primary intent of administrative remedies such as suspension and debarment is to ensure a competitive environment and to protect the Government and the taxpayer from fraud, waste, abuse, and other unlawful activity. Exclusion is a serious action that a Federal agency may take only to protect the public interest. A contractor or person may not be excluded for the purpose of punishment.
- Bureaus, offices, program managers, contracting officers, contracting officer representatives and staff shall:
- 1) Review the Excluded Parties List System (EPLS) prior to awarding a contract or covered non-procurement transaction to ensure the potential awardee is not excluded;
- 2) Oversee and monitor administered procurement and non-procurement transactions for indicia of fraud or behavior that would indicate grounds for suspension and debarment;
- Notify the appropriate Inspector General and the office of the SDO when, during the execution of the contract or covered transaction or awareness thereof, indicia of fraud or lack of responsibility exist. Referral should not be delayed to gather additional information. Assemble available information and refer it for consideration of debarment. Referrals should be in writing and may include, as appropriate:
- 1) The recommendation and rationale for the referral;
- 2) A statement of facts;
- 3) Copies of any documentary evidence;
- 4) list of parties, including the contractor, principals, and affiliates (including known identifying information such as addressee(s), zip codes, and DUNS Number or other identifying number for an individual);
- 5) Treasury’s acquisition or engagement history with the parties, including recent experience under contracts or other agreements and copies of pertinent documents;
- 6) A list of any known investigations, proceedings, or claims;
- 7) Comments and recommendations of the referring official and any higher level review authority regarding whether to suspend or debar, the period of any recommended debarment, and whether to continue any current engagements; and
- 8) Any other appropriate exhibits or documents.
- The Inspectors General shall coordinate with the Office of the Procurement Executive, to the extent allowed by law, when the Inspectors General deem suspension and debarment action is appropriate.
- Office of the Procurement Executive shall:
- 1) Prepare an analysis and recommendation for the SDO regarding reports submitted by the appropriate Inspector General or from any bureau or office within the Department within 30 days of receipt;
- 2) Draft correspondence relating to the suspension and/or proposed debarment, obtain Office of General Law, Ethics and Regulation (GLER) review, and submit the proposed suspension/debarment letter to the respondent;
- 3) Conduct research to determine if any person affiliated with the proposed respondent should also be proposed for suspension or debarment;
- 4) Recommend that an Administrative Compliance Agreement (ACA) be reached with the prospective respondent when appropriate. Factors to consider when contemplating an ACA include the contractor’s—(a) otherwise satisfactory performance; (b) response to the wrongdoing; and (c) willingness to cooperate, willingness to make restitution, and willingness to implement or strengthen an existing ethics program. If an ACA is deemed appropriate, OPE shall—(a) draft an agreement in coordination with the bureau or office administering the procurement or covered non-procurement transaction; (b) obtain GLER review; (c) send the agreement to the respondent; and (d) upon agreement with the respondent, generate the final ACA for signature. Under the ACA, the respondent remains eligible to enter into contracts and other covered transactions with the Government, but must adhere to the terms and conditions of the ACA; and
- 5) Submit information regarding any ACA into Federal Awardee Performance and Integrity Information System (FAPIIS) within three days of execution.
- The Suspension and Debarment Official shall:
- 1) Make final determinations regarding whether a person will be suspended or debarred;
- 2) Determine whether fact-finding proceedings shall be conducted pursuant to a request by a respondent; and
- 3) Conduct fact-finding proceedings related to suspensions and proposed debarments, and make the final determination regarding whether the suspension or debarment shall remain in effect.
- The Office of General Law, Ethics and Regulation (GLER) shall:
- 1) Review and provide concurrence or non-concurrence on suspensions and proposed debarments, as well as proposed ACAs. The GLER will—(a) ensure suspensions and proposed debarments satisfy all legal and regulatory requirements; and (b) provide advice to the SDO on proposed ACAs.
- 2) Provide advice and counsel to the SDO regarding suspension and debarment proceedings, including providing a legal representative to attend the proceedings, at the request of the SDO.
- Bureaus, offices, program managers, contracting officers, contracting officer representatives and staff shall:
- Affiliates — Business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly, by—(1) either one controls or has the power to control the other; or (2) a third party controls or has the power to control both. Indicia of control include, but are not limited to—(1) interlocking management or ownership; (2) identity of interests among family members; (3) shared facilities and equipment; (4) common use of employees, or a business entity organized following the debarment; (5) suspension, or proposed debarment of a contractor which has the same or similar management, ownership, or principal employees as the contractor that was debarred; and (6) suspended, or proposed for debarment.
- Contractor — Defined in the Federal Acquisition Regulation (FAR) 9.403, as any individual or other legal entity that: (1) directly or indirectly (e.g., through an affiliate) submits offers for, or is awarded, or reasonably may be expected to submit offers for or be awarded a Government contract including a contract for carriage under Government or commercial bills of lading, or a subcontract under a Government contract; or (2) conducts business, or reasonably may be expected to conduct business, with the Government as an agent or representative of another contractor.
- Covered transaction — Procurement contract covered under 48 C.F.R. Part 9.4 or a non-procurement transaction under 31 C.F.R. Part 19 to include grants, cooperative agreements, scholarships, fellowships, contracts of assistance, loans, loan guarantees, subsidies, insurances, payments for specified uses, or donation agreements.
- Debarment—Action taken by the Suspending and Debarring Official (SDO) under FAR 9.406 or under Subpart H of the Department of the Treasury’s Government-wide Debarment and Suspension (Non-procurement) rules at 31 C.F.R. Part 19 to exclude a contractor or person from Government contracting and Government-approved subcontracting or other covered transactions for a reasonable specified period.
- Excluded—Person prohibited from being a participant in covered transactions, whether the person has been suspended, debarred, proposed for debarment under 48 C.F.R. part 9, subpart 9.4 and 31 C.F.R. 19.985, or has been voluntarily excluded.
- Excluded Parties List System (EPLS)—List maintained and disseminated by the General Services Administration containing the names and other information concerning persons who are ineligible to receive Government contracts or non-procurement covered transactions. The link for EPLS may be found at https://www.sam.gov/portal/SAM/##11
- Federal Awardee Performance and Integrity System (FAPIIS)— A centrally maintained database for information relevant principally to determinations of contractor responsibility. FAPIIS collects information from other databases like EPLS and PPIRS and also serves as a collection point for other information related to contractor past performance, such as determinations of non-responsibility or final terminations for default or cause. The SDO must submit information regarding administrative compliance agreements directly to FAPIIS within three (3) working days after the agreement is executed. The link for FAPIIS may be found at https://www.ppirs.gov/fapiis.htm
- Interagency Committee on Debarment and Suspension— Pursuant to FAR 9.402 (d) Entity established under Executive Order 12549, and authorized by section 873 of the National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-417) (codified at 31 U.S.C. § 6101 note), that (among other things) resolves the lead agency issue when more than one agency has an interest in the debarment or suspension of a contractor.
- Non-procurement transaction—Defined in 31 C.F.R. 19.970 and FAR 9.403 as any transaction, regardless of type (except procurement contracts), including, but not limited to the following: (1) grants; (2) cooperative agreements; (3) scholarships; (4) fellowships; (5) contracts of assistance; (6) loans; (7) loan guarantees; (8) subsidies; (9) insurances; (10) payments for specified uses; and (11) donation agreements.
- Person—Defined at 31 C.F.R. 19.985 as any individual, corporation, partnership, association, unit of government, or legal entity, however organized.
- Present Responsibility— FAR subpart 9.1 prohibits the award of a purchase order or contract unless the contracting officer makes an affirmative determination of responsibility of the offeror. Present responsibility includes an adequate performance record, a record of integrity and business ethics, and qualification and eligibility under applicable laws and regulations.
- Respondent—Person against whom an agency has initiated a debarment or suspension action.
- Suspension and Debarment Official (SDO)— Individual designated authority to impose procurement and non-procurement suspensions and debarments pursuant to 48 CFR Part 9 and/or 31 CFR 19. The SDO is responsible for management of the Suspension and Debarment program.
- Suspension—Action taken by the SDO under FAR 9.407 or under Subpart G of the Department’s Government-wide Debarment and Suspension (Non-procurement) regulations to disqualify a respondent temporarily from Government contracting and Government-approved subcontracting or covered transactions, pending completion of an agency investigation and/or judicial or administrative proceedings, when it has been determined that immediate action is necessary to protect the Government’s interests.
- 48 C.F.R. 9.400 – 9.409.
- 31 C.F.R. Part 19.
- Executive Order (EO) 12549, Debarment and Suspension, February 18, 1986.
- Executive Order 12689, Debarment and Suspension, August 16, 1989.
- Office of Management and Budget Memorandum, Suspension and Debarment of Federal Contractors and Grantees, November 15, 2011.
- Treasury Directive 12-11, Authorities of the Senior Procurement Executive
- OFFICE OF PRIMARY INTEREST. Office of the Procurement Executive
Nani A. Coloretti
Acting Assistant Secretary for