Subpart 9.4 - Debarment, Suspension, and

Ineligibility

Parent topic: Part 9 - Contractor Qualifications

9.400 Scope of subpart.

(a) This subpart-

(1) Prescribes policies and procedures governing the debarment and suspension of contractors by

agencies for the causes given in 9.406-2 and 9.407-2;

(2) Provides for the listing of contractors debarred, suspended, proposed for debarment, and

declared ineligible (see the definition of "ineligible" in 2.101); and

(3) Sets forth the consequences of this listing.

(b) Although this subpart does cover the listing of ineligible contractors (9.404) and the effect of this

listing (9.405), it does not prescribe policies and procedures governing declarations of ineligibility

except for contractors that have been declared ineligible pursuant to 10 U.S.C. 983 (see 9.110, and

9.405-1(b)).

(c) For Federal Acquisition Supply Chain Security Act (FASCSA) orders, see subpart 4.23.

9.401 Applicability.

In accordance with Public Law 103-355, Section 2455 (31 U.S.C.6101, note), and Executive Order

12689, any debarment, suspension or other Governmentwide exclusion initiated under the

Nonprocurement Common Rule implementing Executive Order 12549 on or after August 25, 1995,

shall be recognized by and effective for Executive Branch agencies as a debarment or suspension

under this subpart. Similarly, any debarment, suspension, proposed debarment or other

Governmentwide exclusion initiated on or after August 25, 1995, under this subpart shall also be

recognized by and effective for those agencies and participants as an exclusion under the

Nonprocurement Common Rule.

9.402 Policy.

(a) Agencies shall solicit offers from, award contracts to, and consent to subcontracts with

responsible contractors only. Debarment and suspension are discretionary actions that, taken in

accordance with this subpart, are appropriate means to effectuate this policy.

(b) The serious nature of debarment and suspension requires that these sanctions be imposed only in

the public interest for the Government’s protection and not for purposes of punishment. Agencies

shall impose debarment or suspension to protect the Government’s interest and only for the causes

and in accordance with the procedures set forth in this subpart.
(c) Agencies are encouraged to establish methods and procedures for coordinating their debarment

or suspension actions.

(d) When more than one agency has an interest in the debarment or suspension of a contractor, the

Interagency Committee on Debarment and Suspension, established under Executive Order 12549,

and authorized by Section 873 of the National Defense Authorization Act for Fiscal Year 2009 (Pub.

L. 110-417) (31 U.S.C.6101, note), shall resolve the lead agency issue and coordinate such resolution

among all interested agencies prior to the initiation of any suspension, debarment, or related

administrative action by any agency.

(e) Agencies shall establish appropriate procedures to implement the policies and procedures of this

subpart.

9.403 Definitions.

As used in this subpart—

Affiliates.–

(1) Business concerns, organizations, or individuals are affiliates of each other if, directly or

indirectly–

(i) Either one controls or has the power to control the other; or

(ii) A third party controls or has the power to control both.

(2) Indicia of control include, but are not limited to, interlocking management or ownership, identity

of interests among family members, shared facilities and equipment, common use of employees, or a

business entity organized following the debarment, suspension, or proposed debarment of a

contractor which has the same or similar management, ownership, or principal employees as the

contractor that was debarred, suspended, or proposed for debarment.

Agency means any executive department, military department or defense agency, or other agency or

independent establishment of the executive branch.

Civil judgment means a judgment or finding of a civil offense by any court of competent jurisdiction.

Contractor means 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.

Debarring official means–

(1) An agency head; or
(2) A designee authorized by the agency head to impose debarment.

Indictment means indictment for a criminal offense. An information or other filing by competent

authority charging a criminal offense is given the same effect as an indictment.

Legal proceedings means any civil judicial proceeding to which the Government is a party or any

criminal proceeding. The term includes appeals from such proceedings.

Nonprocurement Common Rule means the procedures used by Federal Executive Agencies to

suspend, debar, or exclude individuals or entities from participation in nonprocurement transactions

under Executive Order 12549. Examples of nonprocurement transactions are grants, cooperative

agreements, scholarships, fellowships, contracts of assistance, loans, loan guarantees, subsidies,

insurance, payments for specified use, and donation agreements.

Suspending official means–

(1) An agency head; or

(2) A designee authorized by the agency head to impose debarment.

Unfair trade practices means the commission of any or the following acts by a contractor–

(1) A violation of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) as determined by the

International Trade Commission.

(2) A violation, as determined by the Secretary of Commerce, of any agreement of the group known

as the "Coordination Committee" for purposes of the Export Administration Act of 1979 (50 U.S.C.

App. 2401, et seq.) or any similar bilateral or multilateral export control agreement.

(3) A knowingly false statement regarding a material element of a certification concerning the

foreign content of an item of supply, as determined by the Secretary of the Department or the head

of the agency to which such certificate was furnished.

9.404 Exclusions in the System for Award Management.

(a) The General Services Administration (GSA)—

(1) Operates the web-based System for Award Management (SAM), which contains exclusion

records; and

(2) Provides technical assistance to Federal agencies in the use of SAM.

(b) An exclusion record in SAM contains the—

(1) Names and addresses of the entities 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) Unique Entity Identifier;

(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) Identify the individual(s) responsible for entering and updating exclusions data in SAM and

assign the appropriate roles;

(2) Remove the exclusion roles in SAM when the individual leaves the organization or changes

functions;

(3) For each exclusion accomplished by the Agency–

(i) Enter the information required by paragraph (b) of this section within 3 working days after the

action becomes effective;

(ii) Determine whether it is legally permitted to enter the SSN, EIN, or other TIN, under agency

authority to suspend or debar; and

(iii) Update the exclusion record in SAM, generally within 5 working days after modifying or

rescinding an action;

(4) In accordance with internal retention procedures, maintain records relating to each debarment,

suspension, or proposed debarment taken by the agency;

(5) Establish procedures to ensure that the agency does not solicit offers from, award contracts to,

or consent to subcontracts with contractors who have an active exclusion record in SAM, except as

otherwise provided in this subpart;

(6) Direct inquiries concerning listed contractors and other entities to the agency or other authority

that took the action; and

(7) Contact GSA for technical assistance with SAM, via the support e-mail address or on the

technical support phone line.

(d) SAM is available via https://www.sam.gov.

9.405 Effect of listing.

(a) Contractors debarred, suspended, or proposed for debarment are excluded from receiving

contracts, and agencies shall not solicit offers from, award contracts to, or consent to subcontracts

with these contractors, unless the agency head determines that there is a compelling reason for such

action (see 9.405-1(a)(2), 9.405-2, 9.406-1(c), 9.407-1(d), and 23.506(e)). Contractors debarred,

suspended, or proposed for debarment are also excluded from conducting business with the
Government as agents or representatives of other contractors.

(b) Contractors and other entities that have an active exclusion record in SAM because they have

been declared ineligible on the basis of statutory or other regulatory procedures are excluded from

receiving contracts, and if applicable, subcontracts, under the conditions and for the period set forth

in the statute or regulation. Agencies shall not solicit offers from, award contracts to, or consent to

subcontracts with these contractors under those conditions and for that period. 

(c) Agencies shall not enter into, renew, or extend contracts with contractors that have been

declared ineligible pursuant to 22 U.S.C. 2593e.

(d) Contractors debarred, suspended, or proposed for debarment are excluded from acting as

individual sureties (see part 28).

(e)

(1) After the opening of bids or receipt of proposals or quotes, the contracting officer shall review

the exclusion records in SAM.

(2) Bids received from any listed contractor in response to an invitation for bids shall be entered on

the abstract of bids, and rejected unless the agency head determines in writing that there is a

compelling reason to consider the bid.

(3) Proposals, quotations, or offers received from any listed contractor shall not be evaluated for

award or included in the competitive range, nor shall discussions be conducted with a listed offeror

during a period of ineligibility, unless the agency head determines, in writing, that there is a

compelling reason to do so. If the period of ineligibility expires or is terminated prior to award, the

contracting officer may, but is not required to, consider such proposals, quotations, or offers.

(4) Immediately prior to award, the contracting officer shall again review the exclusion records in

SAM to ensure that no award is made to a listed contractor.

9.405-1 Continuation of current contracts.

(a) Contractors debarred, suspended, or proposed for debarment.

(1) Notwithstanding the debarment, suspension, or proposed debarment of a contractor, agencies

may continue contracts or subcontracts in existence at the time the contractor was debarred,

suspended, or proposed for debarment unless the agency head directs otherwise. A decision as to

the type of termination action, if any, to be taken should be made only after review by agency

contracting and technical personnel and by counsel to ensure the propriety of the proposed action.

(2) For contractors debarred, suspended, or proposed for debarment, unless the agency head makes

a written determination of the compelling reasons for doing so, ordering activities shall not—

(i) Place orders exceeding the guaranteed minimum under indefinite quantity contracts;

(ii) Place orders under Federal Supply Schedule contracts, blanket purchase agreements, or basic

ordering agreements; or
(iii) Add new work, exercise options, or otherwise extend the duration of current contracts or orders.

(b) Ineligible contractors. A covered agency, as defined in 9.110-1, shall terminate existing contracts

and shall not place new orders or award new contracts with contractors that have been declared

ineligible pursuant to 10 U.S.C. 983 (see 9.110), except for contracts at or below the simplified

acquisition threshold or contracts for the acquisition of commercial products and commercial

services.

9.405-2 Restrictions on subcontracting.

(a) When a contractor debarred, suspended, or proposed for debarment is proposed as a

subcontractor for any subcontract subject to Government consent (see subpart 44.2), contracting

officers shall not consent to subcontracts with such contractors unless the agency head states in

writing the compelling reasons for this approval action. (See 9.405 concerning declarations of

ineligibility affecting sub-contracting.)

(b) The Government suspends or debars contractors to protect the Government’s interests.

Contractors are prohibited from entering into any subcontract in excess of $35,000, other than a

subcontract for a commercially available off-the-shelf item, with a contractor that has been

debarred, suspended, or proposed for debarment, unless there is a compelling reason to do so. If a

contractor intends to enter into a subcontract in excess of $35,000, other than a subcontract for a

commercially available off-the-shelf item, with a party that is debarred, suspended, or proposed for

debarment as evidenced by the party's having an active exclusion record in SAM (see 9.404), a

corporate officer or designee of the contractor is required by operation of the clause at 52.209-6,

Protecting the Government’s Interests when Subcontracting with Contractors Debarred, Suspended,

or Proposed for Debarment, to notify the contracting officer, in writing, before entering into such

subcontract. For contracts for the acquisition of commercial products, the notification requirement

applies only for first-tier subcontracts. For all other contracts, the notification requirement applies

to subcontracts at any tier. The notice must provide the following:

(1) The name of the subcontractor;

(2) The contractor’s knowledge of the reasons for the subcontractor having an active exclusion

record in SAM;

(3) The compelling reason(s) for doing business with the subcontractor notwithstanding its having

an active exclusion record in SAM; and

(4) The systems and procedures the contractor has established to ensure that it is fully protecting

the Government’s interests when dealing with such subcontractor in view of the specific basis for

the party’s debarment, suspension, or proposed debarment.

(c) The contractor’s compliance with the requirements of 52.209-6 will be reviewed during

Contractor Purchasing System Reviews (see subpart 44.3).

9.406 Debarment.
9.406-1 General.

(a) It is the debarring official’s responsibility to determine whether debarment is in the

Government’s interest. The debarring official may, in the public interest, debar a contractor for any

of the causes in 9.406-2, using the procedures in 9.406-3. The existence of a cause for debarment,

however, does not necessarily require that the contractor be debarred; the seriousness of the

contractor’s acts or omissions and any remedial measures or mitigating factors should be considered

in making any debarment decision. Before arriving at any debarment decision, the debarring official

should consider factors such as the following:

(1) Whether the contractor had effective standards of conduct and internal control systems in place

at the time of the activity which constitutes cause for debarment or had adopted such procedures

prior to any Government investigation of the activity cited as a cause for debarment.

(2) Whether the contractor brought the activity cited as a cause for debarment to the attention of the

appropriate Government agency in a timely manner.

(3) Whether the contractor has fully investigated the circumstances surrounding the cause for

debarment and, if so, made the result of the investigation available to the debarring official.

(4) Whether the contractor cooperated fully with Government agencies during the investigation and

any court or administrative action.

(5) Whether the contractor has paid or has agreed to pay all criminal, civil, and administrative

liability for the improper activity, including any investigative or administrative costs incurred by the

Government, and has made or agreed to make full restitution.

(6) Whether the contractor has taken appropriate disciplinary action against the individuals

responsible for the activity which constitutes cause for debarment.

(7) Whether the contractor has implemented or agreed to implement remedial measures, including

any identified by the Government.

(8) Whether the contractor has instituted or agreed to institute new or revised review and control

procedures and ethics training programs.

(9) Whether the contractor has had adequate time to eliminate the circumstances within the

contractor’s organization that led to the cause for debarment.

(10) Whether the contractor’s management recognizes and understands the seriousness of the

misconduct giving rise to the cause for debarment and has implemented programs to prevent

recurrence.

The existence or nonexistence of any mitigating factors or remedial measures such as set forth in

this paragraph (a) is not necessarily determinative of a contractor’s present responsibility.

Accordingly, if a cause for debarment exists, the contractor has the burden of demonstrating, to the

satisfaction of the debarring official, its present responsibility and that debarment is not necessary.

(b) Debarment constitutes debarment of all divisions or other organizational elements of the

contractor, unless the debarment decision is limited by its terms to specific divisions, organizational

elements, or commodities. The debarring official may extend the debarment decision to include any

affiliates of the contractor if they are-
(1) Specifically named; and

(2) Given written notice of the proposed debarment and an opportunity to respond (see 9.406-3(c)).

(c) A contractor’s debarment, or proposed debarment, shall be effective throughout the executive

branch of the Government, unless the agency head or a designee (except see 23.506(e)) states in

writing the compelling reasons justifying continued business dealings between that agency and the

contractor.

(d)

(1) When the debarring official has authority to debar contractors from both acquisition contracts

pursuant to this regulation and contracts for the purchase of Federal personal property pursuant to

the Federal Property Management Regulations (FPMR) 101-45.6, that official shall consider

simultaneously debarring the contractor from the award of acquisition contracts and from the

purchase of Federal personal property.

(2) When debarring a contractor from the award of acquisition contracts and from the purchase of

Federal personal property, the debarment notice shall so indicate and the appropriate FAR and

FPMR citations shall be included.

9.406-2 Causes for debarment.

The debarring official may debar-

(a) A contractor for a conviction of or civil judgment for-

(1) Commission of fraud or a criminal offense in connection with-

(i) Obtaining;

(ii) Attempting to obtain; or

(iii) Performing a public contract or subcontract.

(2) Violation of Federal or State antitrust statutes relating to the submission of offers;

(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records,

making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen

property;

(4) Intentionally affixing a label bearing a "Made in America" inscription (or any inscription having

the same meaning) to a product sold in or shipped to the United States or its outlying areas, when

the product was not made in the United States or its outlying areas (see Section 202 of the Defense

Production Act (Public Law102-558)); or

(5) Commission of any other offense indicating a lack of business integrity or business honesty that

seriously and directly affects the present responsibility of a Government contractor or

subcontractor.
(b)

(1) A contractor, based upon a preponderance of the evidence, for any of the following-

(i) Violation of the terms of a Government contract or subcontract so serious as to justify debarment,

such as-

(A) Willful failure to perform in accordance with the terms of one or more contracts; or

(B) A history of failure to perform, or of unsatisfactory performance of, one or more contracts.

(ii) Violations of 41 U.S.C. chapter 81, Drug-Free Workplace, as indicated by-

(A) Failure to comply with the requirements of the clause at 52.223-6, Drug-Free Workplace; or

(B) Such a number of contractor employees convicted of violations of criminal drug statutes

occurring in the workplace as to indicate that the contractor has failed to make a good faith effort to

provide a drug-free workplace (see 23.504).

(iii) Intentionally affixing a label bearing a "Made in America" inscription (or any inscription having

the same meaning) to a product sold in or shipped to the United States or its outlying areas, when

the product was not made in the United States or its outlying areas (see Section 202 of the Defense

Production Act (Public Law102-558)).

(iv) Commission of an unfair trade practice as defined in 9.403 (see Section 201 of the Defense

Production Act (Pub.L.102-558)).

(v) Delinquent Federal taxes in an amount that exceeds $10;000.

(A) Federal taxes are considered delinquent for purposes of this provision if both of the following

criteria apply:

(1) The tax liability is finally determined. The liability is finally determined if it has been assessed. A

liability is not finally determined if there is a pending administrative or judicial challenge. In the

case of a judicial challenge to the liability, the liability is not finally determined until all judicial

appeal rights have been exhausted.

(2) The taxpayer is delinquent in making payment. A taxpayer is delinquent if the taxpayer has failed

to pay the tax liability when full payment was due and required. A taxpayer is not delinquent in cases

where enforced collection action is precluded.

(B) Examples.

(1) The taxpayer has received a statutory notice of deficiency, under I.R.C. §6212, which entitles the

taxpayer to seek Tax Court review of a proposed tax deficiency. This is not a delinquent tax because

it is not a final tax liability. Should the taxpayer seek Tax Court review, this will not be a final tax

liability until the taxpayer has exercised all judicial appeal rights.

(2) The IRS has filed a notice of Federal tax lien with respect to an assessed tax liability, and the

taxpayer has been issued a notice under I.R.C. §6320 entitling the taxpayer to request a hearing with

the IRS Office of Appeals contesting the lien filing, and to further appeal to the Tax Court if the IRS

determines to sustain the lien filing. In the course of the hearing, the taxpayer is entitled to contest

the underlying tax liability because the taxpayer has had no prior opportunity to contest the liability.
This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek tax court

review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.

(3) The taxpayer has entered into an installment agreement pursuant to I.R.C. §6159. The taxpayer is

making timely payments and is in full compliance with the agreement terms. The taxpayer is not

delinquent because the taxpayer is not currently required to make full payment.

(4) The taxpayer has filed for bankruptcy protection. The taxpayer is not delinquent because

enforced collection action is stayed under 11 U.S.C. 362 (the Bankruptcy Code).

(vi) Knowing failure by a principal, until 3 years after final payment on any Government contract

awarded to the contractor, to timely disclose to the Government, in connection with the award,

performance, or closeout of the contract or a subcontract thereunder, credible evidence of-

(A) Violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity

violations found in Title 18 of the United States Code;

(B) Violation of the civil False Claims Act (31 U.S.C. 3729-3733); or

(C) Significant overpayment(s) on the contract, other than overpayments resulting from contract

financing payments as defined in 32.001.

(vii) Determination of a false certification under 52.209-13, Violation of Arms Control Treaties or

Agreements-Certification.

(2) A contractor, based on a determination by the Secretary of Homeland Security or the Attorney

General of the United States, that the contractor is not in compliance with Immigration and

Nationality Act employment provisions (see Executive Order12989, as amended by Executive

Order13286). Such determination is not reviewable in the debarment proceedings.

(c) A contractor or subcontractor based on any other cause of so serious or compelling a nature that

it affects the present responsibility of the contractor or subcontractor.

9.406-3 Procedures.

(a) Investigation and referral. Agencies shall establish procedures for the prompt reporting,

investigation, and referral to the debarring official of matters appropriate for that official’s

consideration.

(b) Decisionmaking process.

(1) Agencies shall establish procedures governing the debarment decisionmaking process that are as

informal as is practicable, consistent with principles of fundamental fairness. These procedures 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.

(2) In actions not based upon a conviction or civil judgment, if it is found that the contractor’s

submission in opposition raises a genuine dispute over facts material to the proposed debarment,

agencies shall also-
(i) Afford the contractor an opportunity to appear with counsel, submit documentary evidence,

present witnesses, and confront any person the agency presents; and

(ii) Make a transcribed record of the proceedings and make it available at cost to the contractor

upon request, unless the contractor and the agency, by mutual agreement, waive the requirement

for a transcript.

(c) Notice of proposal to debar. A notice of proposed debarment shall be issued by the debarring

official advising the contractor and any specifically named affiliates, by certified mail, return receipt

requested-

(1) That debarment is being considered;

(2) Of the reasons for the proposed debarment in terms sufficient to put the contractor on notice of

the conduct or transaction(s) upon which it is based;

(3) Of the cause(s) relied upon under 9.406-2 for proposing debarment;

(4) That, within 30 days after receipt of the notice, the contractor may submit, in person, in writing,

or through a representative, information and argument in opposition to the proposed debarment,

including any additional specific information that raises a genuine dispute over the material facts;

(5) Of the agency’s procedures governing debarment decisionmaking;

(6) Of the effect of the issuance of the notice of proposed debarment; and

(7) Of the potential effect of an actual debarment.

(d) Debarring official’s decision.

(1) In actions based upon a conviction or civil judgment, or in which there is no genuine dispute over

material facts, the debarring official shall make a decision on the basis of all the information in the

administrative record, including any submission made by the contractor. If no suspension is in effect,

the decision shall be made within 30 working days after receipt of any information and argument

submitted by the contractor, unless the debarring official extends this period for good cause.

(2)

(i) In actions in which additional proceedings are necessary as to disputed material facts, written

findings of fact shall be prepared. The debarring official shall base the decision on the facts as

found, together with any information and argument submitted by the contractor and any other

information in the administrative record.

(ii) The debarring official may refer matters involving disputed material facts to another official for

findings of fact. The debarring official may reject any such findings, in whole or in part, only after

specifically determining them to be arbitrary and capricious or clearly erroneous.

(iii) The debarring official’s decision shall be made after the conclusion of the proceedings with

respect to disputed facts.

(3) In any action in which the proposed debarment is not based upon a conviction or civil judgment,

the cause for debarment must be established by a preponderance of the evidence.
(e) Notice of debarring official’s decision.

(1) If the debarring official decides to impose debarment, the contractor and any affiliates involved

shall be given prompt notice by certified mail, return receipt requested-

(i) Referring to the notice of proposed debarment;

(ii) Specifying the reasons for debarment;

(iii) Stating the period of debarment, including effective dates; and

(iv) Advising that the debarment is effective throughout the executive branch of the Government

unless the head of an agency or a designee makes the statement called for by 9.406-1(c).

(2) If debarment is not imposed, the debarring official shall promptly notify the contractor and any

affiliates involved, by certified mail, return receipt requested.

(f)

(1) If the contractor enters into an administrative agreement with the Government in order to

resolve a debarment proceeding, the debarring official shall access the website (available at

https://www.cpars.gov, then select FAPIIS) and enter the requested information.

(2) The debarring official is responsible for the timely submission, within 3 working days, and

accuracy of the documentation regarding the administrative agreement.

(3) With regard to information that may be covered by a disclosure exemption under the Freedom of

Information Act, the debarring official shall follow the procedures at 9.105-2(b)(2)(iv).

9.406-4 Period of debarment.

(a)

(1) Debarment shall be for a period commensurate with the seriousness of the cause(s). Generally,

debarment should not exceed 3 years, except that-

(i) Debarment for violation of the provisions of 41 U.S.C. chapter 81, Drug-Free Workplace (see

23.506) may be for a period not to exceed 5 years;

(ii) Debarments under 9.406-2(b)(2) shall be for 1 year unless extended pursuant to paragraph (b) of

this section; and

(iii) Debarments under 9.406-2(b)(1)(vii) shall be for a period of not less than 2 years, inclusive of

any suspension period, if suspension precedes a debarment (see paragraph (a)(2) of this section).

(2) If suspension precedes a debarment, the suspension period shall be considered in determining

the debarment period.

(b) The debarring official may extend the debarment for an additional period, if that official

determines that an extension is necessary to protect the Government’s interest. However, a
debarment may not be extended solely on the basis of the facts and circumstances upon which the

initial debarment action was based. Debarments under 9.406-2(b)(2) may be extended for additional

periods of one year if the Secretary of Homeland Security or the Attorney General determines that

the contractor continues to be in violation of the employment provisions of the Immigration and

Nationality Act. If debarment for an additional period is determined to be necessary, the procedures

of 9.406-3 shall be followed to extend the debarment.

(c) The debarring official may reduce the period or extent of debarment, upon the contractor’s

request, supported by documentation, for reasons such as-

(1) Newly discovered material evidence;

(2) Reversal of the conviction or civil judgment upon which the debarment was based;

(3) Bona fide change in ownership or management;

(4) Elimination of other causes for which the debarment was imposed; or

(5) Other reasons the debarring official deems appropriate.

9.406-5 Scope of debarment.

(a) The fraudulent, criminal, or other seriously improper conduct of any officer, director,

shareholder, partner, employee, or other individual associated with a contractor may be imputed to

the contractor when the conduct occurred in connection with the individual’s performance of duties

for or on behalf of the contractor, or with the contractor’s knowledge, approval, or acquiescence.

The contractor’s acceptance of the benefits derived from the conduct shall be evidence of such

knowledge, approval, or acquiescence.

(b) The fraudulent, criminal, or other seriously improper conduct of a contractor may be imputed to

any officer, director, shareholder, partner, employee, or other individual associated with the

contractor who participated in, knew of, or had reason to know of the contractor’s conduct.

(c) The fraudulent, criminal, or other seriously improper conduct of one contractor participating in a

joint venture or similar arrangement may be imputed to other participating contractors if the

conduct occurred for or on behalf of the joint venture or similar arrangement, or with the

knowledge, approval, or acquiescence of these contractors. Acceptance of the benefits derived from

the conduct shall be evidence of such knowledge, approval, or acquiescence.

9.407 Suspension.

9.407-1 General.

(a) The suspending official may, in the public interest, suspend a contractor for any of the causes in

9.407-2, using the procedures in 9.407-3.

(b)
(1) Suspension is a serious action to be imposed on the basis of adequate evidence, pending the

completion of investigation or legal proceedings, when it has been determined that immediate action

is necessary to protect the Government’s interest. In assessing the adequacy of the evidence,

agencies should consider how much information is available, how credible it is given the

circumstances, whether or not important allegations are corroborated, and what inferences can

reasonably be drawn as a result. This assessment should include an examination of basic documents

such as contracts, inspection reports, and correspondence.

(2) The existence of a cause for suspension does not necessarily require that the contractor be

suspended. The suspending official should consider the seriousness of the contractor’s acts or

omissions and may, but is not required to, consider remedial measures or mitigating factors, such as

those set forth in 9.406-1(a). A contractor has the burden of promptly presenting to the suspending

official evidence of remedial measures or mitigating factors when it has reason to know that a cause

for suspension exists. The existence or nonexistence of any remedial measures or mitigating factors

is not necessarily determinative of a contractor’s present responsibility.

(c) Suspension constitutes suspension of all divisions or other organizational elements of the

contractor, unless the suspension decision is limited by its terms to specific divisions, organizational

elements, or commodities. The suspending official may extend the suspension decision to include

any affiliates of the contractor if they are-

(1) Specifically named; and

(2) Given written notice of the suspension and an opportunity to respond (see 9.407-3(c)).

(d) A contractor’s suspension shall be effective throughout the executive branch of the Government,

unless the agency head or a designee (except see 23.506(e)) states in writing the compelling reasons

justifying continued business dealings between that agency and the contractor.

(e)

(1) When the suspending official has authority to suspend contractors from both acquisition

contracts pursuant to this regulation and contracts for the purchase of Federal personal property

pursuant to FPMR 101-45.6, that official shall consider simultaneously suspending the contractor

from the award of acquisition contracts and from the purchase of Federal personal property.

(2) When suspending a contractor from the award of acquisition contracts and from the purchase of

Federal personal property, the suspension notice shall so indicate and the appropriate FAR and

FPMR citations shall be included.

9.407-2 Causes for suspension.

(a) The suspending official may suspend a contractor suspected, upon adequate evidence, of-

(1) Commission of fraud or a criminal offense in connection with-

(i) Obtaining;

(ii) Attempting to obtain; or

(iii) Performing a public contract or subcontract.
(2) Violation of Federal or State antitrust statutes relating to the submission of offers;

(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records,

making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen

property;

(4) Violations of 41 U.S.C. chapter 81, Drug-Free Workplace, as indicated by-

(i) Failure to comply with the requirements of the clause at 52.223-6, Drug-Free Workplace; or

(ii) Such a number of contractor employees convicted of violations of criminal drug statutes

occurring in the workplace as to indicate that the contractor has failed to make a good faith effort to

provide a drug-free workplace (see 23.504);

(5) Intentionally affixing a label bearing a "Made in America" inscription (or any inscription having

the same meaning) to a product sold in or shipped to the United States or its outlying areas, when

the product was not made in the United States or its outlying areas (see Section 202 of the Defense

Production Act (Public Law102-558));

(6) Commission of an unfair trade practice as defined in 9.403 (see section 201 of the Defense

Production Act (Pub.L.102-558));

(7) Delinquent Federal taxes in an amount that exceeds $10;000. See the criteria at 9.406-2(b)(1)(v)

for determination of when taxes are delinquent;

(8) Knowing failure by a principal, until 3 years after final payment on any Government contract

awarded to the contractor, to timely disclose to the Government, in connection with the award,

performance, or closeout of the contract or a subcontract thereunder, credible evidence of-

(i) Violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity

violations found in Title 18 of the United States Code;

(ii) Violation of the civil False Claims Act (31 U.S.C. 3729-3733); or

(iii) Significant overpayment(s) on the contract, other than overpayments resulting from contract

financing payments as defined in 32.001; or

(9) Determination of a false certification under 52.209-13, Violation of Arms Control Treaties or

Agreements-Certification.

(10) Commission of any other offense indicating a lack of business integrity or business honesty that

seriously and directly affects the present responsibility of a Government contractor or

subcontractor.

(b) Indictment for any of the causes in paragraph (a) of this section constitutes adequate evidence

for suspension.

(c) The suspending official may upon adequate evidence also suspend a contractor for any other

cause of so serious or compelling a nature that it affects the present responsibility of a Government

contractor or subcontractor.
9.407-3 Procedures.

(a) Investigation and referral. Agencies shall establish procedures for the prompt reporting,

investigation, and referral to the suspending official of matters appropriate for that official’s

consideration.

(b) Decisionmaking process.

(1) Agencies shall establish procedures governing the suspension decisionmaking process that are as

informal as is practicable, consistent with principles of fundamental fairness. These procedures 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.

(2) In actions not based on an indictment, if it is found that the contractor’s submission in opposition

raises a genuine dispute over facts material to the suspension and if no determination has been

made, on the basis of Department of Justice advice, that substantial interests of the Government in

pending or contemplated legal proceedings based on the same facts as the suspension would be

prejudiced, agencies shall also-

(i) Afford the contractor an opportunity to appear with counsel, submit documentary evidence,

present witnesses, and confront any person the agency presents; and

(ii) Make a transcribed record of the proceedings and make it available at cost to the contractor

upon request, unless the contractor and the agency, by mutual agreement, waive the requirement

for a transcript.

(c) Notice of suspension. When a contractor and any specifically named affiliates are suspended,

they shall be immediately advised by certified mail, return receipt requested-

(1) That they have been suspended and that the suspension is based on an indictment or other

adequate evidence that the contractor has committed irregularities–

(i) Of a serious nature in business dealings with the Government or

(ii) Seriously reflecting on the propriety of further Government dealings with the contractor-any

such irregularities shall be described in terms sufficient to place the contractor on notice without

disclosing the Government’s evidence;

(2) That the suspension is for a temporary period pending the completion of an investigation and

such legal proceedings as may ensue;

(3) Of the cause(s) relied upon under 9.407-2 for imposing suspension;

(4) Of the effect of the suspension;

(5) That, within 30 days after receipt of the notice, the contractor may submit, in person, in writing,

or through a representative, information and argument in opposition to the suspension, including

any additional specific information that raises a genuine dispute over the material facts; and

(6) That additional proceedings to determine disputed material facts will be conducted unless-
(i) The action is based on an indictment; or

(ii) A determination is made, on the basis of Department of Justice advice, that the substantial

interests of the Government in pending or contemplated legal proceedings based on the same facts

as the suspension would be prejudiced.

(d) Suspending official’s decision.

(1) In actions—

(i) Based on an indictment;

(ii) In which the contractor’s submission does not raise a genuine dispute over material facts; or

(iii) In which additional proceedings to determine disputed material facts have been denied on the

basis of Department of Justice advice, the suspending official’s decision shall be based on all the

information in the administrative record, including any submission made by the contractor.

(2)

(i) In actions in which additional proceedings are necessary as to disputed material facts, written

findings of fact shall be prepared. The suspending official shall base the decision on the facts as

found, together with any information and argument submitted by the contractor and any other

information in the administrative record.

(ii) The suspending official may refer matters involving disputed material facts to another official for

findings of fact. The suspending official may reject any such findings, in whole or in part, only after

specifically determining them to be arbitrary and capricious or clearly erroneous.

(iii) The suspending official’s decision shall be made after the conclusion of the proceedings with

respect to disputed facts.

(3) The suspending official may modify or terminate the suspension or leave it in force (for example,

see 9.406-4(c) for the reasons for reducing the period or extent of debarment). However, a decision

to modify or terminate the suspension shall be without prejudice to the subsequent imposition of-

(i) Suspension by any other agency; or

(ii) Debarment by any agency.

(4) Prompt written notice of the suspending official’s decision shall be sent to the contractor and any

affiliates involved, by certified mail, return receipt requested.

(e)

(1) If the contractor enters into an administrative agreement with the Government in order to

resolve a suspension proceeding, the suspending official shall access the website (available at

https://www.cpars.gov, then select FAPIIS) and enter the requested information.

(2) The suspending official is responsible for the timely submission, within 3 working days, and

accuracy of the documentation regarding the administrative agreement.
(3) With regard to information that may be covered by a disclosure exemption under the Freedom of

Information Act, the suspending official shall follow the procedures at 9.105-2(b)(2)(iv).

9.407-4 Period of suspension.

(a) Suspension shall be for a temporary period pending the completion of investigation and any

ensuing legal proceedings, unless sooner terminated by the suspending official or as provided in this

subsection.

(b) If legal proceedings are not initiated within 12 months after the date of the suspension notice,

the suspension shall be terminated unless an Assistant Attorney General requests its extension, in

which case it may be extended for an additional 6 months. In no event may a suspension extend

beyond 18 months, unless legal proceedings have been initiated within that period.

(c) The suspending official shall notify the Department of Justice of the proposed termination of the

suspension, at least 30 days before the 12-month period expires, to give that Department an

opportunity to request an extension.

9.407-5 Scope of suspension.

The scope of suspension shall be the same as that for debarment (see 9.406-5), except that the

procedures of 9.407-3 shall be used in imposing suspension.

9.408 [Reserved]

9.409 Contract clause.

The contracting officer shall insert the clause at 52.209-6, Protecting the Government’s Interests

when Subcontracting with Contractors Debarred, Suspended, or Proposed for Debarment, in

solicitations and contracts where the contract value exceeds $35,000.