Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1043 

Department) and the IRS will publish 

any comments submitted electronically 

or on paper to the public docket. Send 

paper submissions to: CC:PA:01:PR 

(REG–142338–07), Room 5203, Internal 

Revenue Service, P.O. Box 7604, Ben 

Franklin Station, Washington, DC 

20044. 

FOR FURTHER INFORMATION CONTACT: 

Concerning the proposed regulations 

Christopher A. Hyde of the Office of 

Associate Chief Counsel (Employee 

Benefits, Exempt Organizations, and 

Employment Taxes) at (202) 317–5800 

(not a toll-free number). Concerning 

submissions of comments and requests 

for a public hearing, Vivian Hayes at 

publichearings@irs.gov (preferred) or at 

(202) 317–6901 (not a toll-free number). 

SUPPLEMENTARY INFORMATION: A notice 

of proposed rulemaking and request for 

comments that appeared in the Federal 

Register on Tuesday, November 14, 

2023 (88 FR 77922) announced that 

written or electronic comments must be 

received by January 16, 2024. In 

response to requests from multiple 

commenters, the due date to receive 

comments or request a public hearing 

has been extended to Thursday, 

February 15, 2024. 

Oluwafunmilayo A. Taylor, 

Section Chief, Publications and Regulations, 

Associate Chief Counsel (Procedure & 

Administration). 

[FR Doc. 2024–00260 Filed 1–8–24; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 3, 9, 22, 23, 25, 33, and 

52 

[FAR Case 2019–015; Docket No. FAR– 

2019–0015; Sequence No. 1] 

RIN 9000–AN98 

Federal Acquisition Regulation: 

Improving Consistency Between 

Procurement and Nonprocurement 

Procedures on Suspension and 

Debarment 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Proposed rule. 

SUMMARY: DoD, GSA, and NASA are 

proposing to amend the Federal 

Acquisition Regulation (FAR) to 

improve consistency between the 

procurement and nonprocurement 

procedures on suspension and 

debarment, based on the 

recommendations of the Interagency 

Suspension and Debarment Committee. 

DATES: Interested parties should submit 

written comments to the Regulatory 

Secretariat Division at the address 

shown below on or before March 11, 

2024 to be considered in the formation 

of the final rule. 

ADDRESSES: Submit comments in 

response to FAR Case 2019–015 to the 

Federal eRulemaking portal at https://

www.regulations.gov by searching for 

‘‘FAR Case 2019–015’’. Select the link 

‘‘Comment Now’’ that corresponds with 

‘‘FAR Case 2019–015’’. Follow the 

instructions provided on the ‘‘Comment 

Now’’ screen. Please include your name, 

company name (if any), and ‘‘FAR Case 

2019–015’’ on your attached document. 

If your comment cannot be submitted 

using https://www.regulations.gov, call 

or email the point of contact in the FOR

FURTHER INFORMATION CONTACT section of 

this document for alternate instructions. 

Instructions: Please submit comments 

only and cite ‘‘FAR Case 2019–015’’ in 

all correspondence related to this case. 

Comments received generally will be 

posted without change to https://

www.regulations.gov, including any 

personal and/or business confidential 

information provided. Public comments 

may be submitted as an individual, as 

an organization, or anonymously (see 

frequently asked questions at https://

www.regulations.gov/faq). To confirm 

receipt of your comment(s), please 

check https://www.regulations.gov, 

approximately two to three days after 

submission to verify posting. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. 

Zenaida Delgado, Procurement Analyst, 

at 202–969–7207 or by email at 

zenaida.delgado@gsa.gov. For 

information pertaining to status, 

publication schedules, or alternate 

instructions for submitting comments if 

https: www.regulations.gov cannot be 

used, contact the Regulatory Secretariat 

Division at 202–501–4755 or 

GSARegSec@gsa.gov. Please cite FAR 

Case 2019–015. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Government uses suspension and 

debarment procedures to protect its 

business interests. These procedures 

give Federal officials a means to bar 

parties from participation in certain 

transactions, while affording those 

parties due process. Over time, two 

separate suspension and debarment 

regulatory systems have evolved: (1) the 

FAR system within the Federal 

Acquisition Regulation for procurement 

matters; and (2) the Nonprocurement 

system within the Nonprocurement 

Common Rule (NCR), which covers 

grants, cooperative agreements, 

contracts of assistance, loans, and loan 

guarantees. The regulations for the FAR 

system are in subpart 9.4, Debarment, 

Suspension, and Ineligibility, of Title 48 

in the Code of Federal Regulations 

(CFR). The Nonprocurement system is 

in Title 2, Part 180 of the CFR and 

directs Federal agencies to issue their 

own implementing regulations 

consistent with the NCR. Executive 

Order 12689, ‘‘Debarment and 

Suspension’’, published in the Federal 

Register at 54 FR 34131 on August 18, 

1989, directed that suspension or 

debarment under either system has a 

reciprocal effect, thereby excluding 

parties that have been excluded under 

either system from both new 

procurement and nonprocurement 

transactions. 

This proposed rule seeks to change 

the FAR so that the two systems will be 

in closer alignment where appropriate, 

and incorporates existing practices 

within the suspension and debarment 

systems that are not currently in the 

FAR. The intent behind this alignment 

is to enhance transparency and 

consistency within the Government’s 

suspension and debarment procedures. 

Currently, the two suspension and 

debarment systems are similar, but not 

identical. Although the two suspension 

and debarment rules at their core are 

designed toward the same end, follow 

the same general principles, and use 

essentially the same basic action notice 

and decision-making process, there are 

some differences between the rules. 

Some are definitional (e.g., the NCR 

definition of ‘‘civil judgment’’ is more 

comprehensive than the FAR 

definition), and some are procedural 

(e.g., the NCR and FAR procedures 

differ regarding deadlines for 

suspending and debarring officials to 

make exclusion decisions after the 

record closes). One difference which is 

not being changed in this rule is that a 

notice of proposed debarment under the 

FAR has the effect of immediately 

excluding the party but does not have 

this effect in the NCR. This is done in 

part in recognition of the necessity to 

continue to protect the Government’s 

interests and taxpayer’s money by 

minimizing business risk where 

procurements are involved. The FAR 

gives the suspending and debarring 

official two tools with immediate 

exclusion effect upon imposition—a 


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1044 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

proposal for debarment and a 

suspension. Both have been in the FAR 

as recognized tools for decades, with 

different standards for use. The Federal 

Acquisition Regulatory Council (FAR 

Council) notes that contracts are more 

likely than nonprocurement 

transactions, such as Federal financial 

assistance, to require immediate 

exclusion when something goes wrong. 

See 2 CFR 180.810. Participants in 

nonprocurement transactions—while 

subject to the terms and conditions of a 

Federal award—are typically required to 

meet overall program goals and 

objectives, rather than perform to an 

exact contractual requirement. Federal 

financial assistance typically is for 

public purposes of support or economic 

stimulation, rather than for the direct 

benefit of the U.S. Government. See 31 

U.S.C. 6303 to 6305. In this rule the 

FAR Council is continuing to keep both 

tools, so the suspending and debarring 

official will continue to have the 

discretion to choose whichever tool is 

appropriate for the particular situation. 

This rule also recognizes the use of a 

pre-notice letter, for the suspending and 

debarring official to consider using 

instead of an immediate exclusion. 

The importance of protecting the 

Government’s interests is reflected in 

recurring Appropriations Act language 

since 2012 (see, e.g., Pub. L. 112–55, 

Pub. L. 112–74, and Pub. L. 117–328), 

which states that funds may not be used 

to enter into a contract with any 

corporation that was convicted of a 

felony criminal violation under Federal 

law within the preceding 24 months, 

unless a Federal agency has considered 

suspension or debarment of the 

corporation and has made a 

determination that further action is not 

necessary to protect the interests of the 

Government. In instances in which an 

agency has issued a proposed 

debarment under the FAR, a Federal 

agency has considered that further 

action may be necessary concerning that 

particular party, and therefore, the 

exclusion is consistent with statutory 

intent. 

II. Discussion and Analysis 

The following summarizes the 

proposed changes to the FAR: 

The definition of ‘‘suspending and 

debarring official’’ is added at FAR 

2.101, and standardized throughout the 

FAR, to denote the title of the 

Government official who is authorized 

to impose suspension and debarment 

actions for the Federal Government. 

New definitions have been added at 

FAR 9.403 for ‘‘administrative 

agreement’’, ‘‘conviction’’, ‘‘pre-notice 

letter’’, and ‘‘voluntary exclusion’’. The 

current definition of ‘‘civil judgment’’ is 

also updated for the rule. The 

definitions of ‘‘conviction’’, ‘‘voluntary 

exclusion’’, and ‘‘civil judgment’’ are 

equivalent to the NCR definitions at 2 

CFR 180.920, 180.1020, and 180.915, 

respectively. 

The rationale for adding a definition 

of ‘‘administrative agreement’’ to the 

FAR is that over the years suspending 

and debarring officials have come to 

recognize the value of resolving present 

responsibility concerns through 

administrative agreements. Such 

agreements provide an alternative for 

the Government to implement 

protective measures short of exclusion, 

particularly for those contractors who 

are working toward present 

responsibility but need additional time 

to implement appropriate remedial 

measures to mitigate the business risk to 

the Government. Administrative 

agreements often require that the parties 

to the agreement take certain verifiable 

actions to demonstrate present 

responsibility within a prescribed 

timeframe, such as the implementation 

of enhanced internal corporate 

governance practices and procedures 

and/or the use of independent thirdparty monitors. In unique 

circumstances, an administrative 

agreement may include a contractor’s 

agreement not to participate in certain 

procurement and/or nonprocurement 

transactions or in specific activities for 

the term of the administrative agreement 

or pending the implementation of 

appropriate remedial measures. 

Administrative agreements are factspecific, and therefore vary between 

agencies and from one agreement to 

another. Currently, FAR part 9 mentions 

administrative agreements in the 

context of the statutory requirement that 

administrative agreements must be 

entered into the Federal Awardee 

Performance and Integrity Information 

System (FAPIIS) (see FAR 9.406–3(f) 

and 9.407–3(e)). However, the FAR is 

silent as to its definition. Incorporating 

a definition will provide clarity as to 

what constitutes an administrative 

agreement. 

The rationale for a revised definition 

of ‘‘conviction’’ is that fact-finding 

proceedings should not be necessary 

when there is a sufficient evidentiary 

basis that the contractor was responsible 

for the misconduct for purposes of a 

proposed debarment. The definition of 

‘‘conviction’’ in 2 CFR 180.920 is 

adopted and means a judgment or any 

other determination of guilt of a 

criminal offense by any court of 

competent jurisdiction, whether entered 

upon a verdict or plea, including a plea 

of nolo contendere; or any other 

resolution that is the functional 

equivalent of a judgment, including 

probation before judgment and deferred 

prosecution. A disposition without the 

participation of the court is the 

functional equivalent of a judgment 

only if it includes an admission of guilt. 

The new definition is located at FAR 

9.403 rather than FAR 2.101, so it 

applies only to FAR subpart 9.4. 

The new definition of ‘‘pre-notice 

letter’’ clarifies that the letter is not 

mandatory. Suspension and debarment 

procedures under both the FAR and the 

NCR recognize the authority of agencies 

to handle actions as informally as 

practicable consistent with principles of 

fundamental fairness (see FAR 9.406– 

3(b)(1) and 9.407–3(b)(1); 2 CFR 

180.610). Accordingly, suspending and 

debarring officials may choose to engage 

in preliminary discussions with 

potential respondents or their counsel 

under a variety of circumstances. 

Adding a definition of ‘‘pre-notice 

letter’’ reflects existing practice. The 

Interagency Suspension and Debarment 

Committee has tracked the issuance of 

pre-notice letters in its reports since 

fiscal year 2009; the use of the letters 

has significantly increased over the past 

decade. Including a definition 

highlights another option that agencies 

may consider to resolve concerns 

involving contractor present 

responsibility, short of a formal notice 

under the suspension and debarment 

rules. 

A new definition is added for 

‘‘voluntary exclusion’’ which applies 

throughout FAR part 9 to denote the 

procedures the Federal Government 

uses with contractors for these types of 

agreements. Voluntary exclusions are 

briefly described in the NCR at 2 CFR 

180.640 and 180.645. The FAR does not 

currently describe voluntary exclusions. 

A contractor may choose to agree to a 

voluntary exclusion so that it may 

represent itself in a more favorable light 

to various constituencies including but 

not limited to customers, creditors, and 

the public at large, by indicating that it 

chose to voluntarily exclude itself rather 

than be being involuntarily excluded by 

the Government through suspension or 

debarment. A contractor who is 

voluntarily excluded will be placed on 

the excluded parties list in the System 

for Award Management (SAM); the 

exclusion must have Governmentwide 

effect pursuant to the terms of the 

voluntary exclusion agreement. 

FAR 9.406–1(a) contains remedial 

measures and mitigating factors for the 

debarring official to consider. The 

suspension regulations incorporate the 

factors by reference at FAR 9.407– 

1(b)(2). The proposed rule seeks to add 


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seven new aggravating or mitigating 

factors that a suspending and debarring 

official should consider before arriving 

at a decision. The factors are equivalent 

to NCR factors at 2 CFR 180.860(a) 

through (f), (j), (k), (m), and (s). Unlike 

the FAR, the NCR makes it clear that 

aggravating factors may also be 

considered by the suspending and 

debarring official. Incorporating these 

aggravating factors will provide 

consistency between the two rules, as 

well as more guidance and increased 

options for the suspending and 

debarring official to consider when 

making present responsibility 

determinations. 

FAR 9.406–3(b)(1) and 9.407–3(b)(1) 

state that agencies may establish 

informal procedures governing the 

suspension and debarment decisionmaking process. Accordingly, this rule 

proposes changes that would authorize 

suspending and debarring officials to 

allow contractors and their 

representatives to present matters in 

opposition via additional methods of 

communication, such as telephone or 

internet, as such methods of 

communication are becoming more 

widely used and are consistent with 

principles of fundamental fairness. The 

new flexibilities are being added so that 

the Government and contractors will 

have additional means of 

communication when situations such as 

COVID–19 arise and the ability of the 

parties to meet in person is limited. 

FAR 9.406–3(c)(1) and 9.407–3(c) add 

language that will allow the suspending 

and debarring official the flexibility to 

issue a notice of proposed debarment or 

notice of suspension by mail, facsimile, 

email, or certified mail with return 

receipt requested. The new flexibilities 

are being added so that the Government 

will have additional means of 

communication when emergency 

situations such as COVID–19 arise, and 

when delivering notices to contractors 

abroad; the use of the new methods is 

not restricted to those situations. The 

NCR allows notice to be served in 

person, sent by certified mail or its 

equivalent, or sent electronically by 

email or facsimile; see 2 CFR 180.975. 

If a contractor makes a case for 

nonreceipt of notice, FAR 9.406–4 

allows a debarred person to seek 

reinstatement by requesting the 

debarment period or extent of 

debarment be reduced. 

FAR 9.406–3(c)(2) adds language 

which requires the suspending and 

debarring official to send the notice of 

proposed debarment to the contractor, 

the contractor’s identified counsel for 

purposes of the administrative 

proceedings, or the contractor’s agent 

for service of process. This does not go 

quite as far as the NCR, which allows 

notice to be sent instead to a partner, 

officer, director, owner, or joint venture 

partner; see 2 CFR 180.615. For each 

specifically named affiliate, the 

suspending and debarring official must 

send the notice to the affiliate itself, the 

affiliate’s identified counsel for 

purposes of the administrative 

proceedings, or the affiliate’s agent for 

service of process. The language is 

added so that the Government will have 

the widest latitude in assuring that the 

notice is received. These are the 

minimum notice requirements. 

FAR 9.406–3(c)(3)(viii) and (ix), and 

9.407–3(c)(7) and (8) require that the 

contractor respond with specific facts 

and other information, including 

identifying all of its affiliates. The 

language is substantively equivalent to 

the NCR language at 2 CFR 180.825 and 

180.730. 

FAR 9.406–3(d)(1) addresses the time 

a suspending and debarring official has 

to make a debarment decision in 

deciding actions based upon a 

conviction or civil judgment, or in 

which there is no genuine dispute over 

material facts. If no suspension is in 

effect, the time currently is 30 working 

days after receipt of any information 

and argument submitted by the 

contractor, unless the suspending and 

debarring official extends this period for 

good cause. Under this proposed rule, 

the 30 working days time frame would 

change to 45 days, which under the 

definition of ‘‘day’’ at FAR 2.101 means 

calendar days. The NCR language at 2 

CFR 180.870(a) is 45 days after the 

closing of the official record. The FAR 

language is changed to reflect 45 days 

after the closing of the official record. In 

addition to harmonizing the NCR and 

the FAR, the change will avoid conflicts 

with how other countries compute 

working days, in light of national or 

religious holidays. Forty-five calendar 

days is roughly equivalent to thirty 

working days. 

FAR 9.406–3(e) and 9.407–3(d)(4) 

adds language that specifies that when 

the suspending and debarring official 

sends the notice of their decision, the 

notice procedures set forth in FAR 

9.406–3(c)(1) and (2) shall be used. The 

new flexibilities are being added so that 

the Government will have additional 

means of communication when 

situations such as COVID–19 arise, and 

when delivering notices to contractors 

abroad; the use of the new methods is 

not restricted to those situations. 

FAR 9.406–3(f) and 9.407–3(e)(1) add 

the requirement for the suspending and 

debarring official to enter an 

administrative agreement into FAPIIS, 

whether the agreement resolves a 

suspension or debarment action or 

whether it was a potential suspension or 

debarment action. This requirement is 

being added to confirm that potential 

suspension or debarment actions are 

covered. 

FAR 9.406–3(g) and 9.407–3(f) add 

the requirement for the suspending and 

debarring official to enter voluntary 

exclusions into the excluded parties 

section of SAM as is currently required 

under the NCR. This requirement is 

being added so that selecting officials 

can review these types of exclusions 

before awards are made. 

FAR 9.406–3(h) and 9.407–3(g) 

confirm that, prior to initiating a 

proposed suspension or debarment, the 

suspending and debarring official may 

issue a pre-notice letter alerting the 

contractor to potential future action. 

The definition of ‘‘pre-notice letter’’ is 

added at FAR 9.403. A suspending and 

debarring official is not required to send 

a pre-notice letter prior to initiating 

suspension or debarment action. 

Language is added to FAR 9.407– 

1(b)(1) explaining that the suspending 

and debarring official has wide 

discretion to impose suspensions when 

immediate action is necessary to protect 

the Government’s interest. New 

language is also added to the section 

indicating that an indictment, or other 

official findings by Federal, State, or 

local bodies that determine factual and/ 

or legal matters, constitutes adequate 

evidence for purposes of suspension 

actions. The new language is equivalent 

to the NCR language at 2 CFR 180.705(b) 

and (c). 

FAR 9.407–3(b)(2), (c)(6), and (d) 

revise the list of parties who can 

contribute advice on pending or 

contemplated legal proceedings, to 

include ‘‘advice from the Department of 

Justice, a U.S. Attorney’s office, State 

attorney general’s office, or a State or 

local prosecutor’s office.’’ The language 

is equivalent to the NCR language at 2 

CFR 180.735(a)(4). The FAR currently 

fails to take into account that 

suspensions can be based on State and 

local legal proceedings. 

FAR 9.407–4(b) adds to the parties 

who may request a six-month extension 

of a suspension, when legal proceedings 

have not been initiated within 12 

months after the date of the suspension 

notice. The parties would change from 

‘‘an Assistant Attorney General’’ to ‘‘an 

office of a U.S. Assistant Attorney 

General, U.S. Attorney, or other 

responsible prosecuting official’’. The 

language is equivalent to the NCR 

language at 2 CFR 180.760(b). 

Coordinating the need for an extension 

with an Assistant Attorney General as 


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directed by the FAR is burdensome and 

lengthy. On the other hand, agencies 

have reported that under the more 

flexible provisions of the NCR they have 

often coordinated extensions in a week. 

Notwithstanding the proposed and/or 

final rule, terms of voluntary exclusion 

and administrative agreements executed 

prior to the final rule will remain in 

effect. 

The proposed rule also makes 

conforming changes in FAR subparts 2, 

3, 22, 23, 25, 33, and 52. 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Products (Including Commercially 

Available Off-the-Shelf (COTS) Items) 

or for Commercial Services 

This proposed rule does not create 

new solicitation provisions or contract 

clauses, nor does it change the 

applicability or burden of any existing 

provisions or clauses included in 

solicitations and contracts valued at or 

below the SAT, or for commercial 

products, including COTS items, or for 

commercial services. 

IV. Expected Impact of the Rule 

This proposed rule seeks to improve 

consistency between the procurement 

and nonprocurement procedures on 

suspension and debarment. These 

changes in the FAR will bring the two 

systems into closer alignment, which 

will enhance transparency and 

consistency within the Government’s 

suspension and debarment procedures. 

This will allow contractors a better 

understanding of how the two systems’ 

procedures relate to each other. 

V. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866, as 

amended by E.O. 14094, and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under Section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. 

VI. Regulatory Flexibility Act 

DoD, GSA, and NASA do not expect 

this proposed rule, if finalized, to have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601–612, 

because the rule imposes minor 

procedural changes that are anticipated 

to have a positive impact on small 

entities. However, an Initial Regulatory 

Flexibility Analysis (IRFA) has been 

performed and is summarized as 

follows: 

DoD, GSA, and NASA are proposing to 

amend the FAR to improve consistency 

between the procurement and 

nonprocurement procedures on suspension 

and debarment, based on recommendations 

of the Interagency Suspension and 

Debarment Committee. 

The objective of this proposed rule is to 

more closely align the two systems of 

procurement and nonprocurement 

suspension and debarment to enhance 

transparency and consistency within the FAR 

system. Promulgation of the FAR is 

authorized by 40 U.S.C. 121(c); 10 U.S.C. 

chapter 4 and 10 U.S.C. chapter 137 legacy 

provisions (see 10 U.S.C. 3016); and 51 

U.S.C. 20113. 

The Exclusions section of SAM does not 

contain data on the size of an excluded party 

as size is only specifically determined 

contract by contract based on the North 

American Industry Classification System 

(NAICS) code. When the entity is recorded in 

SAM as an excluded party, the suspending 

and debarring official identifies the entity as 

either (1) an individual, (2) firm, (3) vessel, 

or (4) special entity designation. Collection of 

unique identification numbers are on ‘‘firms’’ 

and optionally on ‘‘special entity 

designations’’. 

Data was analyzed by obtaining the list of 

entities that were excluded in fiscal years 

2017, 2018, and 2019. Next, the entities on 

that list with unique identification numbers 

were compared against the SAM data to see 

if any were actively registered in those fiscal 

years for all awards. Lastly, the entities that 

would be considered small businesses based 

on their primary NAICS code were identified. 

The following is a breakdown of those 

distinct entities which had an entity 

registration in active status and concurrent 

active exclusion record per fiscal year (FY): 

Suspension and debarment—SAM exclusions 

FY 2017 FY 2018 FY 2019 Median 

SB/total 

exclusions 

SB/total 

exclusions 

SB/total 

exclusions SB % 

Small Business/Total Exclusions ..................................................................... 152/203 189/253 180/245 ........................

Small Business Percentage ............................................................................. 75% 75% 73.4% 75 

The proposed rule does impose minor 

procedural changes in compliance 

requirements on contractors and minor 

process procedures for the Government. 

However, this alignment enhances 

transparency and consistency within the 

Government’s suspension and debarment 

procedures reducing the complexities in 

understanding of the two distinct processes 

and procedural requirements for suspension 

and debarment Governmentwide. 

The proposed rule does not include any 

reporting or recordkeeping requirements. The 

rule does not contain any information 

collection requirements that require the 

approval of the Office of Management and 

Budget under the Paperwork Reduction Act 

(44 U.S.C. chapter 35) or other compliance 

requirements for small entities. 

44 U.S.C. 3518 and 5 CFR 1320.4(a)(2) give 

an exception for the collection of information 

during the conduct of an administrative 

action, investigation, or audit involving an 

agency against specific individuals or 

entities. 

This proposed rule does not duplicate, 

overlap, or conflict with any other Federal 

rules. 

DoD, GSA, and NASA were unable to 

identify any significant alternatives. 

The Regulatory Secretariat Division 

has submitted a copy of the IRFA to the 

Chief Counsel for Advocacy of the Small 

Business Administration. A copy of the 

IRFA may be obtained from the 

Regulatory Secretariat Division. DoD, 

GSA, and NASA invite comments from 

small business concerns and other 

interested parties on the expected 

impact of this rule on small entities. 

DoD, GSA, and NASA will also 

consider comments from small entities 

concerning the existing regulations in 

subparts affected by the rule in 

accordance with 5 U.S.C. 610. Interested 

parties must submit such comments 

separately and should cite ‘‘5 U.S.C. 610 

(FAR Case 2019–015)’’, in 

correspondence. 

VII. Paperwork Reduction Act 

This rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

3501–3521). 


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List of Subjects in 48 CFR Parts 2, 3, 9, 

22, 23, 25, 33, and 52 

Government procurement. 

William F. Clark, 

Director, Office of Government-Wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

Therefore, DoD, GSA, and NASA 

propose amending 48 CFR parts 2, 3, 9, 

22, 23, 25, 33, and 52 as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 2, 3, 9, 22, 23, 25, 33, and 52 

continues to read as follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 4 and 10 U.S.C. chapter 137 legacy 

provisions (see 10 U.S.C. 3016); and 51 

U.S.C. 20113. 

PART 2—DEFINITIONS OF WORDS 

AND TERMS 

■ 2. Amend section 2.101, in paragraph 

(b)(2) by— 

■ a. In the definition of ‘‘Conviction’’, 

removing ‘‘nolo contendere.’’ and 

adding ‘‘nolo contendere. For use in 

subpart 9.4, see the definition at 9.403.’’ 

in its place; 

■ b. In the definition of ‘‘Debarment’’, 

removing ‘‘a debarring’’ and adding ‘‘a 

suspending and debarring’’ in its place; 

■ c. Adding in alphabetical order the 

definition of ‘‘Suspending and debarring 

official’’; and 

■ d. In the definition of ‘‘Suspension’’, 

removing ‘‘suspending official’’ and 

adding ‘‘suspending and debarring 

official’’ in its place. 

The addition reads as follows: 

2.101 Definitions. 

* * * * * 

(b) * * * 

(2) * * * 

Suspending and debarring official 

means— 

(1) An agency head; or 

(2) A designee authorized by the 

agency head to impose a suspension 

and/or a debarment. 

* * * * * 

PART 3—IMPROPER BUSINESS 

PRACTICES AND PERSONAL 

CONFLICTS OF INTEREST 

3.104–7 [Amended] 

■ 3. Amend section 3.104–7 by 

removing from paragraph (d)(3) 

‘‘suspending or’’ and adding 

‘‘suspending and’’ in its place. 

PART 9—CONTRACTOR 

QUALIFICATIONS 

9.104–5 [Amended] 

■ 4. Amend section 9.104–5 by 

removing from paragraph (b)(3) 

‘‘suspending or’’ and adding 

‘‘suspending and’’ in its place. 

■ 5. Amend section 9.104–6 by— 

■ a. Revising paragraph (b)(4); and 

■ b. Removing from paragraph (c) 

‘‘debarred or suspended’’ and adding 

‘‘debarred, or suspended, or has agreed 

to a voluntary exclusion’’ in its place. 

The revision reads as follows: 

9.104–6 Federal Awardee Performance 

and Integrity Information System. 

* * * * * 

(b) * * * 

(4) Since FAPIIS may contain 

information on any of the offeror’s 

previous contracts and information 

covering a 5-year period, some of that 

information may not be relevant to a 

determination of present responsibility, 

e.g., a prior administrative action such 

as debarment, suspension, voluntary 

exclusion, or administrative agreement, 

that has expired or otherwise been 

resolved, or information relating to 

contracts for completely different 

products or services. 

* * * * * 

9.402 [Amended] 

■ 6. Amend section 9.402 by removing 

from paragraph (d) ‘‘Interagency 

Committee on Debarment and 

Suspension’’ and adding ‘‘Interagency 

Suspension and Debarment Committee’’ 

in its place. 

■ 7. Amend section 9.403 by— 

■ a. Adding in alphabetical order the 

definition of ‘‘Administrative 

agreement’’; 

■ b. Revising the definition of ‘‘Civil 

judgment’’; 

■ c. Adding in alphabetical order the 

definition of ‘‘Conviction’’; 

■ d. Removing the definition of 

‘‘Debarring official’’; 

■ e. Adding a sentence to the end of the 

definition of ‘‘Nonprocurement 

Common Rule’’; 

■ f. Adding in alphabetical order the 

definition of ‘‘Pre-notice letter’’; 

■ g. Removing the definition of 

‘‘Suspending official’’; and 

■ h. Adding in alphabetical order the 

definition of ‘‘Voluntary exclusion’’. 

The additions and revisions read as 

follows: 

9.403 Definitions. 

* * * * * 

Administrative agreement means an 

agreement between an agency 

suspending and debarring official and 

the contractor used to resolve a 

suspension or debarment proceeding, or 

a potential suspension or debarment 

proceeding. 

* * * * * 

Civil judgment means the disposition 

of a civil action by any court of 

competent jurisdiction, whether by 

verdict, decision, settlement, 

stipulation, other disposition that 

creates a civil liability for the 

complained of wrongful acts, or a final 

determination of liability under the 

Program Fraud Civil Remedies Act of 

1986 (31 U.S.C. 3801–3812). 

* * * * * 

Conviction means— 

(1) A judgment or any other 

determination of guilt of a criminal 

offense by any court of competent 

jurisdiction, whether entered upon a 

verdict or plea, including a plea of nolo 

contendere; or 

(2) Any other resolution that is the 

functional equivalent of a judgment 

establishing a criminal offense by a 

court of competent jurisdiction, 

including probation before judgment 

and deferred prosecution. A disposition 

without the participation of the court is 

the functional equivalent of a judgment 

only if it includes an admission of guilt. 

* * * * * 

Nonprocurement Common Rule 

* * * See 2 CFR part 180 and agency 

enacting regulations. 

Pre-notice letter means a written 

correspondence issued to a potential 

respondent in a suspension or 

debarment matter, which does not 

immediately result in an exclusion or 

ineligibility. The letter is issued at the 

discretion of the suspending and 

debarring official. The letter is not a 

mandatory step in the suspension or 

debarment process. 

* * * * * 

Voluntary exclusion means a 

contractor’s written agreement to be 

excluded for a period under the terms 

of a settlement between the contractor 

and the suspending and debarring 

official of one or more agencies. A 

voluntary exclusion must have 

Governmentwide effect. 

9.404 [Amended] 

■ 8. Amend section 9.404 by— 

■ a. Removing from paragraph (b)(1) 

‘‘debarment, declared ineligible,’’ and 

adding ‘‘debarment, voluntarily 

excluded, declared ineligible,’’ in its 

place; 

■ b. Removing from paragraph (c)(3) 

introductory text ‘‘exclusion 

accomplished’’ and adding ‘‘exclusion, 

including each voluntary exclusion, 

accomplished’’ in its place; and 

■ c. Removing from paragraph (c)(4) ‘‘or 

proposed debarment taken by’’ and 

adding ‘‘proposed debarment, or 

voluntary exclusion taken or entered 

into by’’ in its place. 

■ 9. Amend section 9.405 by— 

■ a. Revising paragraph (a); and 


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■ b. Removing from paragraph (d) ‘‘or 

proposed for debarment are’’ and adding 

‘‘proposed for debarment, or voluntarily 

excluded, are’’ in its place. 

The revision reads as follows: 

9.405 Effect of listing. 

(a) Contractors debarred, suspended, 

proposed for debarment, or voluntarily 

excluded, 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(d), 9.407–1(d), 

and 23.506(e)). Contractors debarred, 

suspended, proposed for debarment, or 

voluntarily excluded, are also excluded 

from conducting business with the 

Government as agents or representatives 

of other contractors. 

* * * * * 

9.405–1 [Amended] 

■ 10. Amend section 9.405–1 by— 

■ a. Removing from paragraph (a) 

heading ‘‘or proposed for debarment.’’ 

and adding ‘‘proposed for debarment, or 

voluntarily excluded.’’ in its place; 

■ b. Removing from paragraph (a)(1) ‘‘or 

proposed debarment of’’ and ‘‘or 

proposed for debarment unless’’ and 

adding ‘‘proposed debarment, or 

voluntary exclusion, of’’ and ‘‘proposed 

for debarment, or voluntarily excluded, 

unless’’ in their places, respectively; 

and 

■ c. Removing from paragraph (a)(2) ‘‘or 

proposed for debarment, unless’’ and 

adding ‘‘proposed for debarment, or 

voluntarily excluded, unless’’ in its 

place. 

9.405–2 [Amended] 

■ 11. Amend section 9.405–2 by— 

■ a. Removing from paragraph (a) ‘‘or 

proposed for debarment is’’ and adding 

‘‘proposed for debarment, or voluntarily 

excluded, is’’ in its place; and 

■ b. Removing from paragraph (b) 

introductory text ‘‘or proposed for 

debarment, unless’’, ‘‘or proposed for 

debarment as’’, and ‘‘or Proposed for 

Debarment to’’ and adding ‘‘proposed 

for debarment, or voluntarily excluded, 

unless’’, ‘‘proposed for debarment, or 

voluntarily excluded, as’’ and 

‘‘Proposed for Debarment, or 

Voluntarily Excluded, to’’ in their 

places, respectively. 

■ 12. Revise section 9.406–1 to read as 

follows: 

9.406–1 General. 

(a) It is the suspending and debarring 

official’s responsibility to determine 

whether debarment is in the 

Government’s interest. The suspending 

and 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, mitigating factors, or 

aggravating factors should be considered 

in making any debarment decision. 

Before arriving at any debarment 

decision, the suspending and 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 

suspending and 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. 

(11) Whether the contractor has a 

pattern or prior history of wrongdoing, 

the frequency of incidents and/or 

duration of the wrongdoing, and the 

actual or potential harm or impact that 

results, or may result, from the 

wrongdoing. 

(12) Whether and to what extent the 

contractor planned, initiated, or carried 

out the wrongdoing, and the kind of 

positions held by the individuals 

involved in the wrongdoing. 

(13) Whether the wrongdoing was 

pervasive within the contractor’s 

organization. 

(14) Whether the contractor’s 

principals tolerated the offense. 

(15) Whether the contractor is or has 

been excluded or disqualified by an 

agency of the Federal Government or 

has not been allowed to participate in 

State or local contracts or assistance 

agreements on a basis of conduct similar 

to one or more of the causes for 

debarment specified in this part. 

(16) Whether the contractor has 

entered into an administrative 

agreement with a Federal agency or a 

similar agreement with a State or local 

government that is not Governmentwide 

but is based on conduct similar to one 

or more of the causes for debarment 

specified in this part. 

(17) Whether there are any other 

factors appropriate to the circumstances 

of a particular case. 

(b) The existence or nonexistence of 

any aggravating or mitigating factors or 

remedial measures such as set forth in 

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 suspending and 

debarring official, its present 

responsibility and that debarment is not 

necessary. 

(c) 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 suspending and 

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)). 

(d) 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 


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justifying continued business dealings 

between that agency and the contractor. 

(e)(1) When the suspending and 

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 Management Regulations (FMR) 

41 CFR part 102–38 (see section 102– 

38.175, 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 

FMR citations shall be included. 

9.406–2 [Amended] 

■ 13. Amend section 9.406–2 by 

removing from the introductory text 

‘‘The debarring’’ and adding ‘‘The 

suspending and debarring’’ in its place. 

■ 14. Amend section 9.406–3 by— 

■ a. Removing from paragraph (a) ‘‘the 

debarring official’’ and adding ‘‘the 

suspending and debarring official’’ in its 

place; 

■ b. Adding two sentences to the end of 

paragraph (b)(1); 

■ c. Revising paragraph (c); 

■ d. Revising the heading of paragraph 

(d); 

■ e. Revising paragraph (d)(1); 

■ f. Removing from paragraph (d)(2)(i) 

‘‘The debarring official’’ and adding 

‘‘The suspending and debarring official’’ 

in its place; 

■ g. Removing from paragraph (d)(2)(ii) 

‘‘The debarring official’’ (twice) and 

adding ‘‘The suspending and debarring 

official’’ (twice) in their places; 

■ h. Removing from paragraph (d)(2)(iii) 

‘‘The debarring official’s’’ and adding 

‘‘The suspending and debarring 

official’s’’ in its place; 

■ i. Revising paragraphs (e) heading and 

(e)(1) introductory text; 

■ j. Removing from paragraph (e)(1)(iv) 

‘‘9.406–1(c)’’ and adding ‘‘9.406–1(d)’’ 

in its place; 

■ k. Removing from paragraph (e)(2) 

‘‘the debarring official’’ and ‘‘certified 

mail, return receipt requested’’ and 

adding ‘‘the suspending and debarring 

official’’ and ‘‘the procedures set forth 

in 9.406–3(c)(1) and (2)’’ in their places, 

respectively; 

■ l. Revising paragraph (f); and 

■ m. Adding paragraphs (g) and (h). 

The revisions and additions read as 

follows: 

9.406–3 Procedures. 

* * * * * 

(b) * * * 

(1) * * * The suspending and 

debarring official may use flexible 

procedures to allow a contractor to 

present matters in opposition in person 

or remotely through appropriate 

technology. If so, the suspending and 

debarring official should change the 

notice in paragraph (c)(3)(iv) of this 

section to include those flexible 

procedures. 

* * * * * 

(c) Notice of proposal to debar. A 

notice of proposed debarment shall be 

issued by the suspending and debarring 

official to the contractor and any 

specifically named affiliates. 

(1) The written notice shall be sent— 

(i) By mail, to the last known street 

address; 

(ii) To the last known email address; 

or 

(iii) By certified mail to the last 

known street address with return receipt 

requested. 

(2) The notice shall be sent— 

(i) To the contractor, the contractor’s 

identified counsel for purposes of the 

administrative proceedings, or the 

contractor’s agent for service of process; 

and 

(ii) For each specifically named 

affiliate, to the affiliate itself, the 

affiliate’s identified counsel for 

purposes of the administrative 

proceedings, or the affiliate’s agent for 

service of process. 

(3) The notice shall state— 

(i) That debarment is being 

considered; 

(ii) 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; 

(iii) The cause(s) relied upon under 

9.406–2 for proposing debarment; 

(iv) 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; 

(v) The agency’s procedures governing 

debarment decisionmaking; 

(vi) The effect of the issuance of the 

notice of proposed debarment; 

(vii) The potential effect of an actual 

debarment; 

(viii) That in addition to any 

information and argument in opposition 

to a proposed debarment, the contractor 

must identify— 

(A) Specific facts that contradict the 

statements contained in the notice of 

proposed debarment. Include any 

information about any of the factors 

listed in 9.406–1(a). A general denial is 

insufficient to raise a genuine dispute 

over facts material to the proposed 

debarment; 

(B) All existing, proposed, or prior 

exclusions and all similar actions taken 

by Federal, State, or local agencies, 

including administrative agreements 

that affect only those agencies; 

(C) All criminal and civil proceedings 

not included in the notice of proposed 

debarment that grew out of facts 

relevant to the cause(s) stated in the 

notice; and 

(D) All of the contractor’s affiliates. 

(ix) That if the contractor fails to 

disclose the information in 9.406– 

3(c)(3)(viii), or provides false 

information, the agency taking the 

action may seek further criminal, civil 

or administrative action against the 

contractor, as appropriate. 

(d) Suspending and 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 suspending and 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 

45 days from the date that the official 

administrative record is closed, unless 

the suspending and debarring official 

extends this period for good cause. The 

official record closes upon the 

suspending and debarring official’s 

receipt of final submissions, information 

and findings of fact, if any. 

* * * * * 

(e) Notice of suspending and 

debarring official’s decision. (1) If the 

suspending and debarring official 

decides to impose debarment, the 

contractor and any affiliates involved 

shall be given prompt notice by the 

procedures set forth in 9.406–3(c)(1) and 

(2)—* * * 

(f) Administrative agreements. (1) If 

the contractor enters into an 

administrative agreement with the 

Government in order to resolve a 

debarment or potential debarment 

proceeding, the suspending and 

debarring official shall access the 

website (available at https://

www.cpars.gov, then select FAPIIS), 

enter the requested information, and 

upload the administrative agreement. 

(2) The suspending and debarring 

official is responsible for the timely and 

accurate submission of documentation 

reflecting the administrative agreement. 

The submission should be made within 

3 working days. 

(3) With regard to information that 

may be covered by a disclosure 


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exemption under the Freedom of 

Information Act, the suspending and 

debarring official shall follow the 

procedures at 9.105–2(b)(2)(iv). 

(g) Voluntary exclusions. (1) If the 

contractor enters into a voluntary 

exclusion with the Government in order 

to resolve a debarment or potential 

debarment matter, the suspending and 

debarring official shall access the 

website (available at https://

www.sam.gov) and enter the requested 

information into the exclusions section 

of SAM (see 9.404(c)(3)). 

(2) The suspending and debarring 

official is responsible for the timely and 

accurate submission of documentation 

reflecting the voluntary exclusion. The 

submission should be made within 3 

working days. 

(3) Regarding information that may be 

covered by a disclosure exemption 

under the Freedom of Information Act, 

the suspending and debarring official 

shall follow the procedures at 9.105– 

2(b)(2)(iv). 

(h) Pre-notice letters. Prior to 

initiating a proposed debarment, a prenotice letter may be issued at the 

discretion of the agency suspending and 

debarring official. A pre-notice letter is 

not required to initiate debarment under 

this subpart. (See 9.403.) 

9.406–4 [Amended] 

■ 15. Amend section 9.406–4 by— 

■ a. Removing from paragraphs (b) and 

(c) introductory text ‘‘The debarring 

official’’ and adding ‘‘The suspending 

and debarring official’’ in their places; 

and 

■ b. Removing from paragraph (c)(5) 

‘‘the debarring official’’ and adding ‘‘the 

suspending and debarring official’’ in its 

place. 

■ 16. Amend section 9.407–1 by— 

■ a. Removing from paragraph (a) 

‘‘suspending official’’ and adding 

‘‘suspending and debarring official’’ in 

its place; 

■ b. Revising paragraphs (b)(1) and (2); 

■ c. Removing from paragraph (c) 

introductory text ‘‘suspending official’’ 

and adding ‘‘suspending and debarring 

official’’ in its place; 

■ d. Revising paragraph (e)(1); and 

■ e. Removing from paragraph ((e)(2) 

‘‘FAR and FPMR’’ and adding ‘‘FAR and 

FMR’’ in its place. 

The revisions read as follows: 

9.407–1 General. 

* * * * * 

(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 deciding 

whether immediate action is necessary 

to protect the Government’s interest, the 

suspending and debarring official has 

wide discretion. The suspending and 

debarring official may infer the 

necessity for immediate action to 

protect the Government’s interest either 

from the nature of the circumstances 

giving rise to a cause for suspension or 

from potential business relationships or 

involvement with a program of the 

Federal Government. 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. An 

indictment or other official findings by 

Federal, State, or local bodies that 

determine factual and/or legal matters, 

constitutes adequate evidence for 

purposes of suspension actions. 

(2) The existence of a cause for 

suspension does not necessarily require 

that the contractor be suspended. The 

suspending and debarring official 

should consider the seriousness of the 

contractor’s acts or omissions and may, 

but is not required to, consider remedial 

measures, mitigating factors, or 

aggravating factors, such as those set 

forth in 9.406–1(a). A contractor has the 

burden of promptly presenting to the 

suspending and debarring 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 aggravating or 

mitigating factors is not necessarily 

determinative of a contractor’s present 

responsibility. 

* * * * * 

(e)(1) When the suspending and 

debarring 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 Federal Management 

Regulations (FMR) 41 CFR part 102–38 

(see section 102–38.175), that official 

shall consider simultaneously 

suspending the contractor from the 

award of acquisition contracts and from 

the purchase of Federal personal 

property. 

* * * * * 

9.407–2 [Amended] 

■ 17. Amend section 9.407–2 by 

removing from paragraphs (a) 

introductory text and (c) ‘‘The 

suspending official’’ and adding ‘‘The 

suspending and debarring official’’ in 

their places. 

■ 18. Amend section 9.407–3 by— 

■ a. Removing from paragraph (a) 

‘‘suspending official’’ and adding 

‘‘suspending and debarring official’’ in 

its place; 

■ b. Adding two sentences to the end of 

paragraph (b)(1); 

■ c. Removing from paragraph (b)(2) 

introductory text ‘‘of Department of 

Justice advice, that’’ and adding ‘‘of 

advice from the Department of Justice, 

a U.S. Attorney’s office, State attorney 

general’s office, or a State or local 

prosecutor’s office, that’’ in its place; 

■ d. Removing from paragraph (c) 

introductory text ‘‘certified mail, return 

receipt requested—’’ and adding ‘‘the 

procedures set forth in 9.406–3(c)(1) and 

(2)—’’ in its place; 

■ e. Removing from paragraph (c)(1) 

introductory text ‘‘irregularities’’ and 

adding ‘‘irregularities—’’ in its place; 

■ f. Removing from paragraph (c)(1)(i) 

‘‘of a’’ and ‘‘Government or’’ and adding 

‘‘Of a’’ and ‘‘Government; or’’ in their 

places, respectively; 

■ g. Removing from paragraph (c)(1)(ii) 

‘‘seriously’’ and adding ‘‘Seriously’’ in 

its place; 

■ h. Removing from paragraph (c)(5) 

‘‘facts; and’’ and adding ‘‘facts;’’ in its 

place; 

■ i. Revise paragraph (c)(6); 

■ j. Adding paragraphs (c)(7) and (8); 

■ k. Revising paragraphs (d) 

introductory text and (d)(1); 

■ l. Removing from paragraph (d)(2)(i) 

‘‘suspending official’’ and adding 

‘‘suspending and debarring official’’ in 

its place; 

■ m. Removing from paragraph (d)(2)(ii) 

‘‘suspending official’’ (twice) and 

adding ‘‘suspending and debarring 

official’’ (twice) in their places; 

■ n. Removing from paragraph (d)(2)(iii) 

‘‘suspending official’s’’ and adding 

‘‘suspending and debarring official’s’’ in 

its place; 

■ o. Removing from paragraph (d)(3) 

introductory text ‘‘suspending official’’ 

and ‘‘imposition of’’ and adding 

‘‘suspending and debarring official’’ and 

‘‘imposition of—’’ in their places, 

respectively; 

■ p. Removing from paragraph (d)(3)(i) 

‘‘suspension’’ and ‘‘agency or’’ and 

adding ‘‘Suspension’’ and ‘‘agency; or’’ 

in their places, respectively; 

■ q. Removing from paragraph (d)(3)(ii) 

‘‘debarment’’ and adding ‘‘Debarment’’ 

in its place; 

■ r. Revising paragraph (d)(4); 

■ s. Revising paragraph (e)(1) and (2); 

■ t. Removing from paragraph (e)(3) 

‘‘suspending official’’ and adding 


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Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1051 

‘‘suspending and debarring official’’ in 

its place; and 

■ u. Adding paragraphs (f) and (g). 

The revisions and additions read as 

follows: 

9.407–3 Procedures. 

* * * * * 

(b) * * * 

(1) * * * The suspending and 

debarring official may use the flexible 

procedures in 9.406–3(b)(1). If so, the 

suspending and debarring official 

should change the notice in paragraph 

(c)(5) of this section to include those 

flexible procedures. 

* * * * * 

(c) * * * 

(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 advice by the Department of 

Justice, a U.S. Attorney’s office, State 

attorney general’s office, or a State or 

local prosecutor’s office, that the 

substantial interests of the Government 

in pending or contemplated legal 

proceedings based on the same facts as 

the suspension would be prejudiced; 

(7) That, in addition to any 

information and argument in opposition 

to a suspension, the contractor must 

identify— 

(i) Specific facts that contradict the 

statements contained in the notice of 

suspension. Include any information 

about any of the factors listed in 9.406– 

1(a). A general denial is insufficient to 

raise a genuine dispute over facts 

material to the suspension; 

(ii) All existing, proposed, or prior 

exclusions and all similar actions taken 

by Federal, State, or local agencies, 

including administrative agreements 

that affect only those agencies; 

(iii) All criminal and civil 

proceedings not included in the notice 

of suspension that grew out of facts 

relevant to the cause(s) stated in the 

notice; and 

(iv) All of the contractor’s affiliates; 

and 

(8) That if the contractor fails to 

disclose the information in 9.407– 

3(c)(7), or provides false information, 

the agency taking the action may seek 

further criminal, civil or administrative 

action against the contractor, as 

appropriate. 

(d) Suspending and debarring 

official’s decision. (1) The suspending 

and debarring official’s decision shall be 

based on all the information in the 

administrative record, including any 

submission made by the contractor, for 

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 advice 

from the Department of Justice, a U.S. 

Attorney’s office, State attorney 

general’s office, or a State or local 

prosecutor’s office. 

* * * * * 

(4) Prompt written notice of the 

suspending and debarring official’s 

decision shall be sent to the contractor 

and any affiliates involved, by the 

procedures set forth in 9.406–3(c)(1) and 

(2). 

(e)(1) If the contractor enters into an 

administrative agreement with the 

Government in order to resolve a 

suspension or potential suspension 

proceeding, the suspending and 

debarring official shall access the 

website (available at https://

www.cpars.gov, then select FAPIIS), 

enter the requested information, and 

upload the administrative agreement. 

(2) The suspending and debarring 

official is responsible for the timely and 

accurate submission of documentation 

reflecting the administrative agreement. 

The submission should be made within 

3 working days. 

* * * * * 

(f)(1) If the contractor enters into a 

voluntary exclusion with the 

Government in order to resolve a 

suspension or potential suspension 

proceeding, the suspending and 

debarring official shall access the 

website (available at https://

www.sam.gov) and enter the requested 

information into the exclusions section 

of SAM (see 9.404(c)(3)). 

(2) The suspending and debarring 

official is responsible for the timely and 

accurate submission of documentation 

reflecting the voluntary exclusion. The 

submission should be made within 3 

working days. 

(3) Regarding information that may be 

covered by a disclosure exemption 

under the Freedom of Information Act, 

the suspending and debarring official 

shall follow the procedures at 9.105– 

2(b)(2)(iv). 

(g) Pre-notice letter. Prior to initiating 

a suspension, a pre-notice letter may be 

issued at the discretion of the agency 

suspending and debarring official. A 

pre-notice letter is not required to 

initiate suspension under this subpart. 

(See 9.403.) 

■ 19. Amend section 9.407–4 by— 

■ a. Removing from paragraph (a) 

‘‘suspending official’’ and adding 

‘‘suspending and debarring official’’ in 

its place; 

■ b. Removing from paragraph (b) 

‘‘Assistant Attorney General requests’’ 

and adding ‘‘office of a U.S. Assistant 

Attorney General, U.S. Attorney, or 

other responsible prosecuting official 

requests’’ in its place; and 

■ c. Revising paragraph (c) to read as 

follows: 

9.407–4 Period of suspension. 

* * * * * 

(c) The suspending and debarring 

official shall notify the Department of 

Justice or other responsible prosecuting 

official of the proposed termination of 

the suspension, at least 30 days before 

the 12-month period expires, to give 

that official an opportunity to request an 

extension on the Government’s behalf. 

9.409 [Amended] 

■ 20. Amend section 9.409 by removing 

from the text ‘‘or Proposed for 

Debarment, in’’ and adding ‘‘Proposed 

for Debarment, or Voluntarily Excluded, 

in’’ in its place. 

PART 22—APPLICATION OF LABOR 

LAWS TO GOVERNMENT 

ACQUISITIONS 

22.1504 [Amended] 

■ 21. Amend section 22.1504 by— 

■ a. Removing from paragraph (b)(2) 

‘‘The suspending official’’ and adding 

‘‘The suspending and debarring official’’ 

in its place; and 

■ b. Removing from paragraph (b)(3) 

‘‘The debarring official’’ and adding 

‘‘The suspending and debarring official’’ 

in its place. 

22.1704 [Amended] 

■ 22. Amend 22.1704 by removing from 

paragraph (c)(2)(i) introductory text 

‘‘suspending or debarring’’ and adding 

‘‘suspending and debarring’’ in its place. 

■ 23. Amend section 22.1802 by 

revising paragraph (e) to read as follows: 

22.1802 Policy. 

* * * * * 

(e) DHS and the Social Security 

Administration (SSA) may terminate a 

contractor’s MOU and deny access to 

the E-Verify system in accordance with 

the terms of the MOU. If DHS or SSA 

terminates a contractor’s MOU, the 

terminating agency must refer the 

contractor to a suspending and 

debarring official for possible 

suspension or debarment action. During 

the period between termination of the 

MOU and a decision by the suspending 

and debarring official whether to 

suspend or debar, the contractor is 

excused from its obligations under 

paragraph (b) of the clause at 52.222–54. 

If the contractor is suspended or 

debarred as a result of the MOU 


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1052 Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 

termination, the contractor is not 

eligible to participate in E-Verify during 

the period of its suspension, debarment, 

or voluntary exclusion. If the 

suspending and debarring official 

determines not to suspend, or debar, or 

voluntarily exclude the contractor, then 

the contractor must reenroll in E-Verify. 

PART 23—ENVIRONMENT, ENERGY 

AND WATER EFFICIENCY, 

RENEWABLE ENERGY 

TECHNOLOGIES, OCCUPATIONAL 

SAFETY, AND DRUG-FREE 

WORKPLACE 

23.506 [Amended] 

■ 24. Amend section 23.506 by 

removing from paragraph (c) 

‘‘suspension and debarment’’ and 

adding ‘‘suspending and debarring’’ in 

its place. 

PART 25—FOREIGN ACQUISITION 

25.206 [Amended] 

■ 25. Amend section 25.206 by 

removing from paragraph (c)(4) 

‘‘suspending or debarring’’ and 

‘‘Subpart 9.4’’ and adding ‘‘suspending 

and debarring’’ and ‘‘subpart 9.4’’ in 

their places, respectively. 

25.607 [Amended] 

■ 26. Amend section 25.607 by 

removing from paragraph (c)(4) 

‘‘suspending or debarring’’ and adding 

‘‘suspending and debarring’’ in its place. 

25.702–3 [Amended] 

■ 27. Amend section 25.702–3 by— 

■ a. Removing from paragraph (b) 

‘‘suspending official’’ and ‘‘Subpart’’ 

and adding ‘‘suspending and debarring 

official’’ and ‘‘subpart’’ in their places, 

respectively; and 

■ b. Removing from paragraph (c) ‘‘The 

debarring’’ and ‘‘Subpart’’ and adding 

‘‘The suspending and debarring’’ and 

‘‘subpart’’ in their places, respectively. 

25.703–2 [Amended] 

■ 28. Amend section 25.703–2 by— 

■ a. Removing from paragraph (b)(2) 

‘‘suspending official’’ and adding 

‘‘suspending and debarring official’’ in 

its place; and 

■ b. Removing from paragraph (b)(3) 

‘‘The debarring official’’ and adding 

‘‘The suspending and debarring official’’ 

in its place. 

PART 33—PROTESTS, DISPUTES, 

AND APPEALS 

33.102 [Amended] 

■ 29. Amend section 33.102 by 

removing from paragraph (b)(3)(iii) 

‘‘debarment official’’ and ‘‘Subpart’’ and 

adding ‘‘suspending and debarring 

official’’ and ‘‘subpart’’ in their places, 

respectively. 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 30. Amend section 52.209–6 by— 

■ a. Revising the section heading and 

clause title; 

■ b. Revising the date of the clause; 

■ c. Removing from paragraph (c) 

‘‘suspended, or proposed for debarment 

by’’ and adding ‘‘suspended, proposed 

for debarment, or voluntarily excluded, 

by’’ in its place; 

■ d. Removing from paragraph (d) 

introductory text ‘‘or proposed for 

debarment’’ and adding ‘‘proposed for 

debarment, or voluntarily excluded’’ in 

its place; and 

■ e. Removing from paragraph (d)(4) 

‘‘suspension, or proposed debarment’’ 

and adding ‘‘suspension, proposed 

debarment, or voluntary exclusion’’ in 

its place. 

The revision reads as follows: 

52.209–6 Protecting the Government’s 

Interest When Subcontracting with 

Contractors Debarred, Suspended, 

Proposed for Debarment, or Voluntarily 

Excluded. 

* * * * * 

Protecting the Government’s Interest 

When Subcontracting With Contractors 

Debarred, Suspended, Proposed for 

Debarment, or Voluntarily Excluded 

(Date) 

* * * * * 

■ 31. Amend section 52.212–5 by— 

■ a. Revising the date of the clause; 

■ b. Revising paragraph (b)(12); 

■ c. Revising the date of paragraphs 

(b)(32) and (40); 

■ d. Revising the date of paragraph 

(e)(1)(xix); and 

■ e. Amend Alternate II by revising the 

date of Alternate II and paragraph (R). 

The revisions read as follows: 

52.212–5 Contract Terms and Conditions 

Required To Implement Statutes or 

Executive Orders-Commercial Products and 

Commercial Services. 

* * * * * 

Contract Terms and Conditions 

Required To Implement Statutes or 

Executive Orders-Commercial Products 

and Commercial Services (Date) 

* * * * * 

(b) * * * 

ll(12) 52.209–6, Protecting the 

Government’s Interest When 

Subcontracting with Contractors 

Debarred, Suspended, Proposed for 

Debarment, or Voluntarily Excluded. 

(Date)(31 U.S.C. 6101 note). 

* * * * * 

ll(32) 52.222–19, Child LaborCooperation with Authorities and 

Remedies (Date) (E.O. 13126). 

* * * * * 

ll(40) 52.222–54, Employment 

Eligibility Verification (Date). (Executive 

Order 12989). (Not applicable to the 

acquisition of commercially available 

off-the-shelf items or certain other types 

of commercial products or commercial 

services as prescribed in FAR 22.1803.) 

* * * * * 

(e)(1) * * * 

(xix) 52.222–54, Employment 

Eligibility Verification (Date) (E.O. 

12989). 

* * * * * 

Alternate II. (Date) * * * 

(e)(1) * * * 

(ii) * * * 

(R) 52.222–54, Employment Eligibility 

Verification (Date) (Executive Order 

12989). 

* * * * * 

■ 32. Amend section 52.213–4 by— 

■ a. Revising the date of the clause; 

■ b. Revising the date of paragraph 

(b)(1)(iii) and removing ‘‘in 2.101’’ and 

adding ‘‘in FAR 2.101’’ in its place; and 

■ c. Removing from paragraph (b)(2)(ii) 

‘‘or Proposed for Debarment (NOV 

2021)’’ and adding ‘‘Proposed for 

Debarment, or Voluntarily Excluded 

(Date)’’ in its place. 

The revisions read as follows: 

52.213–4 Terms and Conditions— 

Simplified Acquisitions (Other Than 

Commercial Products and Commercial 

Services). 

* * * * * 

Terms and Conditions—Simplified 

Acquisitions (Other Than Commercial 

Products and Commercial Services) 

([Date) 

* * * * * 

(b) * * * 

(1) * * * 

(iii) 52.222–19, Child Labor— 

Cooperation with Authorities and 

Remedies (Date) * * * 

* * * * * 

■ 33. Amend section 52.222–19 by— 

■ a. Revising the date of the clause; 

■ b. Removing from paragraph (d)(2) 

‘‘suspending official’’ and ‘‘Subpart’’ 

and adding ‘‘suspending and debarring 

official’’ and ‘‘subpart’’ in their places, 

respectively; and 

■ c. Removing from paragraph (d)(3) 

‘‘The debarring’’ and ‘‘Subpart’’ and 

adding ‘‘The suspending and debarring’’ 

and ‘‘subpart’’ in their places, 

respectively. 

The revision reads as follows: 

52.222–19 Child Labor—Cooperation with 

Authorities and Remedies. 

* * * * * 


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Federal Register / Vol. 89, No. 6 / Tuesday, January 9, 2024 / Proposed Rules 1053 

Child Labor—Cooperation With 

Authorities and Remedies (Date) 

* * * * * 

■ 34. Amend section 52.222–54 by— 

■ a. Revising the date of the clause; 

■ b. Removing from paragraph (b)(5)(i) 

‘‘suspension or debarment’’ and adding 

‘‘suspending and debarring’’ in its place; 

and 

■ c. Revising paragraph (b)(5)(ii). 

The revisions read as follows: 

52.222–54 Employment Eligibility 

Verification. 

* * * * * 

Employment Eligibility Verification 

(Date) 

* * * * * 

(b) * * * 

(5) * * * 

(ii) During the period between 

termination of the MOU and a decision 

by the suspending and debarring official 

whether to suspend or debar, the 

Contractor is excused from its 

obligations under paragraph (b) of this 

clause. If the suspending and debarring 

official determines not to suspend, 

debar, or voluntarily exclude the 

Contractor, then the Contractor must 

reenroll in E-Verify. 

* * * * * 

[FR Doc. 2024–00172 Filed 1–8–24; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Part 367 

[Docket No. FMCSA–2023–0268 RIN 2126– 

AC67] 

Fees for the Unified Carrier 

Registration Plan and Agreement 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), Department 

of Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: FMCSA proposes 

amendments to its regulations governing 

the annual registration fees that 

participating States collect from motor 

carriers, motor private carriers of 

property, brokers, freight forwarders, 

and leasing companies for the Unified 

Carrier Registration (UCR) Plan and 

Agreement for the 2025 registration year 

and subsequent registration years. The 

fees for the 2025 registration year would 

be increased above the fees for the 2024 

registration year by an average of 25.0 

percent overall, with varying increases 

between $9 and $9,000 per entity, 

depending on the applicable fee bracket. 

The proposal is based upon a 

recommendation from the UCR Plan. 

DATES: Comments must be received on 

or before February 8, 2024. 

ADDRESSES: You may submit comments 

identified by Docket Number FMCSA– 

2023–0268 using any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

https://www.regulations.gov/docket/ 

FMCSA-2023-0268/document. Follow 

the online instructions for submitting 

comments. 

• Mail: Dockets Operations, U.S. 

Department of Transportation, 1200 

New Jersey Avenue SE, West Building, 

Ground Floor, Washington, DC 20590– 

0001. 

• Hand Delivery or Courier: Dockets 

Operations, U.S. Department of 

Transportation, 1200 New Jersey 

Avenue SE, West Building, Ground 

Floor, Washington, DC 20590–0001, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

To be sure someone is there to help you, 

please call (202) 366–9317 or (202) 366– 

9826 before visiting Dockets Operations. 

• Fax: (202) 493–2251. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Kenneth Riddle, Director, Office of 

Registration and Safety Information, 

FMCSA, 1200 New Jersey Avenue SE, 

Washington, DC 20590–0001, 

FMCSAMCRS@dot.gov. If you have 

questions on viewing or submitting 

material to the docket, call Dockets 

Operations at (202) 366–9826. 

SUPPLEMENTARY INFORMATION: FMCSA 

organizes this NPRM as follows: 

I. Public Participation and Request for 

Comments 

A. Submitting Comments 

B. Viewing Comments And Documents 

C. Privacy 

II. Executive Summary 

A. Purpose and Summary of the Regulatory 

Action 

B. Costs and Benefits 

III. Abbreviations 

IV. Legal Basis 

V. Background 

VI. Discussion of Proposed Rulemaking 

VII. Severability 

VIII. Section-by-Section Analysis 

IX. Regulatory Analyses 

A. Executive Order (E.O.) 12866 

(Regulatory Planning and Review), E.O. 

13563 (Improving Regulation and 

Regulatory Review), E.O. 14094 

(Modernizing Regulatory Review), and 

DOT Regulatory Policies and Procedures 

B. Congressional Review Act 

C. Regulatory Flexibility Act 

D. Assistance for Small Entities 

E. Unfunded Mandates Reform Act of 1995 

F. Paperwork Reduction Act 

G. E.O. 13132 (Federalism) 

H. Privacy 

I. E.O. 13175 (Indian Tribal Governments) 

J. National Environmental Policy Act of 

1969 

K. Rulemaking Summary 

I. Public Participation and Request for 

Comments 

A. Submitting Comments 

If you submit a comment, please 

include the docket number for this 

NPRM (FMCSA–2023–0268), indicate 

the specific section of this document to 

which your comment applies, and 

provide a reason for each suggestion or 

recommendation. You may submit your 

comments and material online or by fax, 

mail, or hand delivery, but please use 

only one of these means. FMCSA 

recommends that you include your 

name and a mailing address, an email 

address, or a phone number in the body 

of your document so FMCSA can 

contact you if there are questions 

regarding your submission. 

To submit your comment online, go to 

https://www.regulations.gov/docket/ 

FMCSA-2023-0268/document, click on 

this NPRM, click ‘‘Comment,’’ and type 

your comment into the text box on the 

following screen. 

If you submit your comments by mail 

or hand delivery, submit them in an 

unbound format, no larger than 81⁄2 by 

11 inches, suitable for copying and 

electronic filing. 

FMCSA will consider all comments 

and material received during the 

comment period. 

Confidential Business Information (CBI) 

CBI is commercial or financial 

information that is both customarily and 

actually treated as private by its owner. 

Under the Freedom of Information Act 

(5 U.S.C. 552), CBI is exempt from 

public disclosure. If your comments 

responsive to the NPRM contain 

commercial or financial information 

that is customarily treated as private, 

that you actually treat as private, and 

that is relevant or responsive to the 

NPRM, it is important that you clearly 

designate the submitted comments as 

CBI. Please mark each page of your 

submission that constitutes CBI as 

‘‘PROPIN’’ to indicate it contains 

proprietary information. FMCSA will 

treat such marked submissions as 

confidential under the Freedom of 

Information Act, and they will not be 

placed in the public docket of the 

NPRM. Submissions containing CBI 

should be sent to Mr. Brian Dahlin, 

Chief, Regulatory Evaluation Division, 

Office of Policy, FMCSA, 1200 New 

Jersey Avenue SE, Washington, DC 

20590–0001 or via email at 

brian.g.dahlin@dot.gov. At this time, 


khammond on DSKJM1Z7X2PROD with PROPOSALS