[Federal Register Volume 69, Number 243 (Monday, December 20, 2004)]
[Rules and Regulations]
[Pages 76347-76350]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27634]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 9, 22, 28, 44, and 52

[FAC 2001-26; FAR Case 2002-023; Item II]
RIN 9000-AJ78


Federal Acquisition Regulation; Excluded Parties List System 
Enhancement

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) to publish an 
electronic list of parties excluded from doing business with the 
Federal Government online identified as the Excluded Parties List 
System (EPLS). This will obviate the need to publish the hard copy of 
the List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs (List of Parties) produced by the Government 
Printing Office.

DATES: Effective Date:January 19, 2005.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755 
for information pertaining to status or publication schedules. For 
clarification of content, contact Mr. Craig Goral, Procurement Analyst, 
at (202) 501-3856. Please cite FAC 2001-26, FAR case 2002-023.

SUPPLEMENTARY INFORMATION:

A. Background

    This final rule incorporates the Excluded Parties List System into 
the FAR and enables agencies to directly enter data on parties 
suspended, proposed for debarment, debarred, declared ineligible, or 
excluded or disqualified under the nonprocurement common rule by 
agencies or the Government Accountability Office. GSA maintains that 
direct entry by the acting agency will improve the reliability of the 
system, eliminate the need for a hard copy list, provide access to the 
archival data, and enhance the ability to verify entries by permitting 
a search by exact name and social security number where the agencies 
entering the data have the authority to collect, retain, and publish 
the party's social security number.
    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 68 FR 67353, December 1, 2003. The Councils received 
comments in response to the proposed rule from six respondents. Several 
respondents concurred in the rule as written. Other comments are 
categorized as follows:
    1. One respondent recommended that the names of the parties listed 
in the EPLS be linked to the Central Contractor Registry (CCR) 
accessible on the Internet at http://www.ccr.gov/index.cfm. The 
Councils partially concur; however, in light of impending review of the 
CCR and the Business Partner Network (BPN) by their Program Manager, 
within the next six months to ascertain the capabilities of these 
systems, no change was made at the present time.
    2. One respondent pointed out a technological glitch in conducting 
searches using the EPLS search engine for a field for DUNS number that 
is not a required entry. He points out that if the searcher has a DUNS 
number and searches for that given DUNS number but the agency data 
entry person has not entered the number, the research results will 
indicate no such entry or ``No records were found matching this 
criteria.'' Searchers could readily interpret this search engine 
response as an indication that the party to which Dun and Bradstreet 
assigned a DUNS number is not listed in EPLS when what such search 
results could also mean is that there is no data actually entered into 
a non-mandatory field. He suggested adding a cautionary note to FAR 
9.404 or 9.105-1(c)(1). The Councils acknowledge the validity of his 
concern but decline to add a cautionary note to the FAR. The Councils 
acknowledge that while obtaining a DUNS number is a

[[Page 76348]]

requirement in many areas within which one ``conducts business with the 
government,'' it is not yet a universal requirement. For instance, OMB 
has issued guidance for its use by grantees but the requirement does 
not extend to sub-recipients. The Councils also noted that his concern 
may be equally applicable to any field where entry is optional or not 
required. GSA has been requested to modify the automated response when 
a searcher searches on data possibly entered into an optional/not 
required field, so that the search engine response states words to the 
effect of ``No records were found matching this criteria; however, you 
have searched for data contained in a non-mandatory field. A negative 
response may only indicate that no data matching your search criterion 
has been entered in the field DUNS number field or SSN/TIN field. A 
search on other required fields is recommended.''
    3. One respondent made five suggestions addressing broad policy 
changes in the suspension and debarment system. The respondent stated 
that the EPLS has not been adequately applied or uniformly enforced 
against large and small contractors and recommends five changes to 
improve the suspension and debarment system:
    a. Create a centralized information database that should be 
consulted before awarding a contract or making a suspension and 
debarment system.
    b. Require a contractor to disclose current suspensions or 
debarment, Federal or state litigation initiated against them in the 
past 3 years, and any Administrative Agreements the contractor is 
currently implementing.
    c. Require an agency debarment official to use suspension and 
debarment actions equally against large and small contractors or to 
justify in writing a determination to do business with a nonresponsible 
contractor.
    d. Amend the FAR to require mandatory suspension or debarment for a 
contractor that either had been criminally convicted or had a civil 
judgment entered against them for more than once in a three-year 
period.
    e. Empower the Interagency Suspension and Debarment Committee 
(ISDC) to coordinate with the Federal agency taking a leadership role 
in a suspension or debarment case (especially with a repeat offender) 
and require the Interagency Committee to submit semi-annual reports to 
Congress regarding suspension and debarment decisions.
    Because these comments lay outside the scope of the rule and 
addressed basic principles and policies leading to decisions to exclude 
parties rather than with the procedural changes in the operation of the 
electronic system, no change to the final rule is required. However, we 
will bring these comments to the attention of the ISDC.
    4. One respondent had a list of comments regarding errors in 
citation and conflicts between definitions used in the FAR and the 
Nonprocurement Common Rule (NCR) published November 26, 2003 (68 FR 
66553). The Councils acknowledge the definitions used in the NCR, but 
do not concur with the recommended changes to the proposed rule in the 
FAR. The FAR terminology, although not identical to the NCR 
terminology, is not entirely inconsistent. The FAR uses the specific 
terms ``suspension,'' ``debarment,'' or ``proposed for debarment'' 
which are also used in the NCR, but for which the NCR has provided an 
overall term of ``excluded,'' which the FAR does not use. The FAR uses 
the term ``ineligible'' (defined in FAR 2.101) rather than the 
comparable term ``disqualified'' used in the NCR, but the NCR also uses 
the term ``ineligible'' to cover both ``excluded'' and ``ineligible.'' 
Therefore, the actions described as ``ineligible'' in the FAR are also 
``ineligible'' under the NCR, although the NCR uses the term more 
broadly. The term ``ineligible'' has been used for many years in the 
FAR, and is imbedded in the ``Procurement Cause and Treatment Codes'' 
and in agency supplements such as the Defense Federal Acquisition 
Regulation Supplement. The Councils consider that it would be 
unnecessarily disruptive to remove this term from the FAR. As stated in 
paragraph (b) of FAR 9.400, although FAR Subpart 9.4 covers the listing 
of ineligible contractors and the effect of this listing, it does not 
prescribe policies and procedures governing declarations of 
ineligibility. The main thing a contracting officer needs to know is 
the effect of being listed in the ``Excluded Parties List System,'' not 
the underlying basis for the listing, and whether the party is 
considered ``ineligible'' or ``disqualified.'' The contracting officer 
also needs to know the effect of being listed and may glean this from 
consultation with the cause and treatment codes. Accordingly, the final 
rule retains the current definition of ``ineligible'' in the FAR and 
deletes the NCR definitions of ``disqualified'' and ``excluded or 
exclusion'' which appeared in the proposed rule. However, the final 
rule adds ``or disqualified under the Nonprocurement Common Rule'' to 
paragraph (b)(1) of FAR 9.404. The respondent also noted that the 
proposed rule also used the definition ``covered transactions'' but no 
definition was provided and that the statutory citations to the listing 
of violating facilities in the Clean Water Act and Clean Air Act were 
erroneous in the definition of ``excluded or exclusion.'' Because the 
final rule deletes this definition, no change has been made, although 
the respondent was correct in noting the citations were wrong. Lastly, 
the respondent recommended that the word ``generally'' be added to 
paragraph (c)(5) of FAR 9.404 to occasions where 5 working days may be 
insufficient. The final rule includes the adverb but notes that posting 
the data beyond the five days provided should occur rarely.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Department of Defense, the General Services Administration, and 
the National Aeronautics and Space Administration certify that this 
final rule will not have a significant economic impact on a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act, 5 U.S.C. 601, et seq., because the rule only makes 
changes in the way GSA manages and maintains the list of excluded 
parties. It does not change the criteria for inclusion on the list or 
the effect of the list on award or administration of contracts.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

List of Subjects in 48 CFR Parts 2, 9, 28, 44, and 52

    Government procurement.

    Dated: December 9, 2004.
Laura Auletta,
Director, Contract Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 9, 22, 28, 44, and 
52 as set forth below:
0
1. The authority citation for 48 CFR parts 2, 9, 22, 28, 44, and 52 is 
revised to read as follows:

    Authority: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; 
and 42 U.S.C. 2473(c).

[[Page 76349]]

PART 2--DEFINITIONS OF WORDS AND TERMS

0
2. Amend section 2.101 in paragraph (b)(2) by adding, in alphabetical 
order, the definition ``Excluded Parties List System''; and removing 
the definition ``List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs.'' The added definition reads as follows:


2.101   Definitions.

* * * * *
    (b) * * *
    Excluded Parties List System means an electronic database 
maintained and posted by the General Services Administration containing 
the list of all parties suspended, proposed for debarment, debarred, 
declared ineligible, or excluded or disqualified under the 
nonprocurement common rule by agencies, Government corporations, or by 
the Government Accountability Office.
* * * * *

PART 9--CONTRACTOR QUALIFICATIONS

0
3. Amend section 9.105-1 by revising paragraph (c)(1) to read as 
follows:


9.105-1  Obtaining information.

* * * * *
    (c) * * *
    (1) The Excluded Parties List System maintained in accordance with 
Subpart 9.4.
* * * * *
0
4. Amend section 9.207 by revising paragraph (a)(9) to read as follows:


9.207   Changes in status regarding qualification requirements.

    (a) * * *
    (9) The source is on the Excluded Parties List System (see Subpart 
9.4); or
* * * * *
0
5. Revise section 9.404 to read as follows:


9.404   Excluded Parties List System.

    (a) The General Services Administration (GSA)--
    (1) Operates the web-based Excluded Parties List System (EPLS);
    (2) Provides technical assistance to Federal agencies in the use of 
the EPLS; and
    (3) Includes in the list the name and telephone number of the 
official responsible for its maintenance and distribution.
    (b) The EPLS includes the--
    (1) Names and addresses of all contractors debarred, suspended, 
proposed for debarment, declared ineligible, or excluded or 
disqualified under the nonprocurement common rule, with cross-
references when more than one name is involved in a single action;
    (2) Name of the agency or other authority taking the action;
    (3) Cause for the action (see 9.406-2 and 9.407-2 for causes 
authorized under this subpart) or other statutory or regulatory 
authority;
    (4) Effect of the action;
    (5) Termination date for each listing;
    (6) DUNS No.;
    (7) Social Security Number (SSN), Employer Identification Number 
(EIN), or other Taxpayer Identification Number (TIN), if available; and
    (8) Name and telephone number of the agency point of contact for 
the action.
    (c) Each agency must--
    (1) Obtain password(s) from GSA to access the EPLS for data entry;
    (2) Notify GSA in the event a password needs to be rescinded (e.g., 
when an agency employee leaves or changes function);
    (3) Enter the information required by paragraph (b) of this section 
within 5 working days after the action becomes effective;
    (4) Determine whether it is legally permitted to enter the SSN, 
EIN, or other TIN, under agency authority to suspend or debar;
    (5) Update EPLS, generally within 5 working days after modifying or 
rescinding an action;
    (6) In accordance with internal retention procedures, maintain 
records relating to each debarment, suspension, or proposed debarment 
taken by the agency;
    (7) Establish procedures to ensure that the agency does not solicit 
offers from, award contracts to, or consent to subcontracts with 
contractors whose names are in the EPLS, except as otherwise provided 
in this subpart;
    (8) Direct inquiries concerning listed contractors to the agency or 
other authority that took the action; and
    (9) Contact GSA for technical assistance with the EPLS, via the 
support e-mail address or on the technical support phone line available 
at the EPLS web site provided in paragraph (d) of this section.
    (d) The EPLS is available at http://epls.gov.


9.405   [Amended]

0
6. Amend section 9.405 by--
    a. Removing from paragraph (b) ``on the List of Parties Excluded 
from Federal Procurement and Nonprocurement Programs'' and adding ``in 
the EPLS'' in its place; and
    b. Removing from paragraphs (d)(1) and (d)(4) ``List of Parties 
Excluded from Federal Procurement and Nonprocurement Programs'' and 
adding ``EPLS'' in their place.


9.405-2   [Amended]

0
7. Amend section 9.405-2 by removing from paragraphs (b) introductory 
text, (b)(2), and (b)(3) ``on the List of Parties Excluded from Federal 
Procurement and Nonprocurement Programs'' and adding ``in the EPLS'' in 
their place.

PART 22--APPLICATIONS OF LABOR LAWS TO GOVERNMENT ACQUISITIONS


22.1025   [Amended]

0
8. Amend the first sentence of section 22.1025 by removing ``List of 
Parties Excluded from Federal Procurement and Nonprocurement Programs'' 
and adding ``Excluded Parties List System'' in its place.

PART 28--BONDS AND INSURANCE


28.203-7   [Amended]

0
9. Amend section 28.203-7 in paragraphs (c) and (d) by removing ``on 
the List of Parties Excluded from Federal Procurement and 
Nonprocurement Programs'' and adding ``in the Excluded Parties List 
System'' in their place.

PART 44--SUBCONTRACTING POLICIES AND PROCEDURES


44.202-2   [Amended]

0
10. Amend section 44.202-2 in paragraph (a)(13) by removing ``on the 
List of Parties Excluded from Federal Procurement and Nonprocurement 
Programs'' and adding ``in the Excluded Parties List System'' in its 
place.


44.303   [Amended]

0
11. Amend section 44.303 in paragraph (c) by removing ``List of Parties 
Excluded from Federal Procurement and Nonprocurement Programs'' and 
adding ``Excluded Parties List System'' in its place.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


52.209-6   [Amended]

0
12. Amend section 52.209-6 by revising the date of the clause to read 
``(JAN 2005)'' removing from the introductory text of paragraph (c) 
``List of Parties Excluded from Federal Procurement and Nonprocurement 
Programs'' and adding ``Excluded Parties List System'' in its place; 
and removing from paragraphs (c)(2) and (c)(3) ``on the List of Parties 
Excluded from Federal Procurement and Nonprocurement Programs'' and 
adding ``in the Excluded Parties List System'' in their place.

[[Page 76350]]

52.213-4   [Amended]

0
13. Amend section 52.213-4 by revising the date of the clause to read 
``(JAN 2005)''; and by removing from paragraph (b)(2)(i) of the clause 
``(July 1995)'' and adding ``(JAN 2005)'' in its place.
[FR Doc. 04-27634 Filed 12-17-04; 8:45 am]
BILLING CODE 6820-EP-S