Federal Register / Vol. 90, No. 2 / Friday, January 3, 2025 / Rules and Regulations 507 

directive material contained in FAC 2025–03 

are effective January 17, 2025. 

John M. Tenaglia, 

Principal Director, Defense Pricing, 

Contracting, and Acquisition Policy, 

Department of Defense. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy, 

U.S. General Services Administration. 

Marvin L. Horne, 

Deputy Assistant Administrator for NASA 

Procurement, National Aeronautics and 

Space Administration. 

[FR Doc. 2024–31409 Filed 1–2–25; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 3, 9, 22, 25, 26, 33, and 

52 

[FAC 2025–03; FAR Case 2019–015, Item 

I; 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: Final rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing a final rule amending 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: Effective January 17, 2025. 

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 or 

publication schedules contact the 

Regulatory Secretariat Division at 202– 

501–4755 or GSARegSec@gsa.gov. 

Please cite FAC 2025–03, FAR Case 

2019–015. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA published a 

proposed rule at 89 FR 1043 on January 

9, 2024, to improve consistency between 

procurement and nonprocurement 

procedures on suspension and 

debarment, based on the 

recommendations of the Interagency 

Suspension and Debarment Committee 

(ISDC). The procurement procedures on 

suspension and debarment are covered 

in the FAR. The nonprocurement 

procedures on suspension and 

debarment (i.e., Nonprocurement 

Common Rule (NCR)) are covered in 2 

CFR part 180 and agency implementing 

regulations. For further details please 

see the proposed rule. Five respondents 

submitted comments on the proposed 

rule. 

II. Discussion and Analysis 

The Civilian Agency Acquisition 

Council and the Defense Acquisition 

Regulations Council (the Councils) 

reviewed the public comments in the 

development of the final rule. A 

discussion of the comments and the 

changes made to the rule as a result of 

those comments are provided as 

follows: 

A. Summary of significant changes: 

No changes to the FAR text have been 

made from the proposed to final rule 

that have a significant negative effect on 

contractors. Minor changes and 

clarifications have been made to the 

final rule. These changes are outlined 

below: 

1. Revised FAR 9.406–1(a) to provide 

clarification regarding which mitigating 

and aggravating factors may apply to 

individuals. 

2. Revised FAR 9.406–3(b)(1) and 

9.407–3(b)(1) to clarify that if the 

suspending and debarring official (SDO) 

extends the opportunity for the 

contractor to submit material in 

opposition, then the SDO should also 

give a deadline for submission of 

materials. 

3. Revised FAR 9.406–3(c)(1)(i) to 

allow the notice of proposed debarment, 

or the notice of suspension, to be sent 

by U.S. mail or private delivery service 

to the last known street address, with 

delivery notification service. 

4. Revised FAR 9.406–3(c)(1)(ii) to 

allow the notice of proposed debarment, 

or the notice of suspension, to be sent 

by email to the point of contact email 

address in the contractor’s registration 

in the System for Award Management 

(SAM), if any, or to the last known 

email address as confirmed by the 

agency. 

5. Revised FAR 9.406–3(d)(1) to 

clarify that the official record closes 

upon the expiration of the contractor’s 

time to submit information and 

argument in opposition, including any 

extensions. 

B. Analysis of Public Comments 

1. Outside the Scope of the Rule 

Comment: A respondent 

recommended adding FAR language to 

address applicability of the suspension 

and debarment rules to Other 

Transaction Authority (OTA) 

Agreements and to grants. 

Response: This comment is outside 

the scope of this rule. Neither OTA 

Agreements nor grants are covered in 

the FAR. 

Comment: A respondent 

recommended adding a definition of 

‘‘present responsibility.’’ 

Response: This issue was previously 

considered in a notice issued by the 

Office of Management and Budget 

(OMB) regarding guidelines for 

Nonprocurement Debarment and 

Suspension at 52 FR 20360 on May 29, 

1987, and it was concluded that the 

definition is unnecessary. The 

suggestion has been referred to the ISDC 

for further consideration. 

2. Immediate Exclusionary Effect of a 

Notice of Proposed Debarment Under 

the FAR 

Comment: A respondent stated that 

the term ‘‘notice of proposed 

debarment’’ under the FAR is 

misleading because the debarment is not 

‘‘proposed’’—it is ‘‘imposed.’’ Most of 

the respondents recommended that the 

immediate exclusionary effect of 

proposed debarment be removed from 

the FAR to align better with the NCR, 

and disagree with the Government’s 

rationale for retaining it in the FAR. 

These respondents indicated that if the 

risk to the Government in a specific case 

requires immediate exclusion to protect 

the Government’s business interests, an 

SDO can issue a notice of suspension 

under FAR 9.407. Where immediate 

exclusion is not necessary and the 

Government would not choose to 

suspend the contractor, the proposal for 

debarment should not have an 

exclusionary effect. Immediate 

exclusion is particularly unwarranted in 

cases where the proposed debarment is 

not based on a conviction or civil 

judgment, and fact-finding proceedings 

are necessary. These respondents 

indicated that there is no increased 

business risk to the Government in the 

procurement context than in 

nonprocurement transactions. The 

respondents stated that the Government 

enters into procurement contracts for 

public purposes of equal importance 


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508 Federal Register / Vol. 90, No. 2 / Friday, January 3, 2025 / Rules and Regulations 

and comparative risk as some 

nonprocurement transactions. The 

respondents also pointed out that the 

Appropriations Act language cited in 

the proposed rule does not require an 

SDO to issue an exclusionary notice as 

part of the assessment of whether 

suspension and debarment is 

appropriate. The respondents stated that 

those statutes simply require the official 

to have considered whether exclusion is 

necessary to protect the Government, 

which can be done without an 

immediate exclusion (e.g., with a prenotice letter or proactive outreach by the 

contractor). 

Response: DoD, GSA, and NASA 

acknowledge the comments but 

continue to think, after deliberation 

with the ISDC, that the policy reasons 

articulated in the preamble to the 

proposed rule for giving different effect 

to a proposed debarment when applied 

to a procurement contract versus a grant 

remain valid. These policy reasons are 

based on differences in the purpose of 

procurement contracts and grants, as 

well as occasional differences in 

comparative risk between these 

instruments. Equally important, neither 

the ISDC nor the Federal Acquisition 

Regulatory Council think that the 

application of a proposed debarment, 

long allowed by the FAR to protect the 

taxpayer from harm, leads to 

inappropriate use or overuse of 

immediate exclusions. In addition, the 

final FAR rule formally recognizes the 

use of pre-notice letters for the 

suspending and debarring official to 

consider as an alternative to an 

immediate exclusion. For these reasons, 

no changes have been made regarding 

the immediate exclusionary effect of a 

notice of proposed debarment. 

3. Methods of Communication 

Comment: A respondent expressed 

support for the amendments to FAR 

9.406–3(b)(1) and 9.407–3(b)(1) to 

permit contractors and their 

representatives to present matters in 

opposition remotely. However, the 

respondent is concerned that permitting 

notices of proposed debarment, 

suspension, and the SDO decisions to be 

sent by standard U.S. mail (with no 

return receipt requested) or by email 

‘‘[t]o the last known email address’’ may 

be inadequate to give contractors notice 

and an opportunity to respond. The 

respondent recommended aligning this 

provision with the NCR to require that 

any notice sent by U.S. mail be sent by 

certified mail or its equivalent to 

increase the likelihood that the notice 

will actually be received. The 

respondent pointed out that this 

recommendation is consistent with 

notions of due process and fundamental 

fairness. It is also consistent with the 

purpose of the proposed rule: to better 

align the FAR and NCR. 

Response: DoD, GSA, and NASA 

recognize the need for broad agency 

flexibility due to the variety of agency 

missions. FAR 9.406–3(c)(1)(i) was 

revised to allow the written notice to be 

sent by U.S. mail or private delivery 

service to the last known street address, 

with delivery notification service. FAR 

9.406–3(c)(1)(ii) was revised to allow 

the written notice to be sent by email to 

the point of contact email address in the 

contractor’s SAM registration, if any, or 

to the last known email address as 

confirmed by the agency. These changes 

provide agencies additional tools 

beyond using U.S. certified mail with 

return receipt requested, and they are 

consistent with the flexibility provided 

by the NCR, see 2 CFR 180.975 and 

180.615. 

Comment: Regarding sending notices 

by email, a respondent recommended 

clarifying how SDOs will determine the 

‘‘last known email address’’ for a 

contractor, its identified counsel, or 

agent for service of process. The 

respondent further recommended 

defining the contractor’s ‘‘last known 

email address’’ as the point of contact 

email address in the contractor’s SAM 

registration. Additionally, the 

respondent recommended requiring 

SDOs to take additional steps to confirm 

the contractor’s receipt of notices sent 

by email, such as requiring a response 

to confirm receipt, requesting a ‘‘read 

receipt’’ on the email, or following up 

by telephone to confirm that the email 

was received. 

Response: The changes to FAR 9.406– 

3(c)(1)(i) and (ii) allow agencies the 

flexibility to rely on a variety of 

verification services and resources to 

confirm the last known street address or 

the last known email address. Requiring 

specific delivery confirmation practices 

is overly prescriptive. 

Comment: A respondent 

recommended amending FAR 9.406–4 

to add ‘‘demonstration of non-receipt of 

notice’’ as a reason for the SDO to 

reduce the period or extent of 

debarment. Another respondent 

recommended providing for immediate 

reinstatement of contractors debarred 

without receiving notice of a proposed 

debarment. The SDO could then reissue 

the notice of proposed debarment and 

provide the contractor an opportunity to 

respond before determining whether to 

continue the debarment for the 

remainder of the period of debarment. If 

the SDO determines that debarment is 

warranted, the contractor would be 

debarred only for the amount of time 

remaining in the original period of 

debarment prior to reinstatement. If the 

SDO determines that debarment was not 

warranted, all records of the prior 

exclusion should be removed from 

SAM.gov and other applicable 

Government databases. And, if the SDO 

determines that an administrative 

agreement is appropriate, information in 

relevant Government databases should 

be amended to reflect that the contractor 

was proposed for debarment and an 

administrative agreement was executed 

but should not reflect that debarment 

was ever imposed. 

Response: The FAR and the NCR 

describe how agencies achieve proper 

notice such that notice is considered to 

have been received by the contractor. 

The language in the preamble to the 

proposed rule (89 FR 1045) regarding 

nonreceipt of notice was not intended to 

create procedures for immediate 

reinstatement, but rather to provide an 

example of a reason under FAR 9.406– 

4(c)(5) that a debarring official may 

deem appropriate to reduce the period 

or extent of debarment. As FAR 9.406– 

4(c)(5) is a catch-all provision, the 

suggestion to add ‘‘demonstration of 

non-receipt of notice’’ is not adopted. 

Comment: A respondent commended 

the decision to require that notices of 

proposed debarment be sent directly to 

the contractor, the contractor’s 

identified counsel for purposes of the 

administrative proceedings, or the 

contractor’s agent for service of process, 

rather than permitting notices to be sent 

to partners, officers, directors, owners, 

or joint venturers. The respondent also 

commended retaining the requirement 

that notices be sent directly to 

specifically named affiliates (and adding 

that such notices may be sent to the 

affiliate’s identified counsel for 

purposes of the administrative 

proceedings, or the affiliate’s agent for 

service of process). Requiring that 

notices be sent directly to the party 

named in the notice promotes due 

process by helping ensure that notices 

are actually received and that the 

cognizant party has an opportunity to 

respond. 

Response: DoD, GSA, and NASA 

acknowledge the respondent’s support 

for the rule. 

4. Administrative Agreement 

Comment: A respondent 

recommended that the final rule clarify 

that ‘‘potential suspension proceeding’’ 

and ‘‘potential debarment proceedings’’ 

are those suspension or debarment 

proceedings initiated by, at a minimum, 

a pre-notice letter or other formal action 

and further clarify that an 

administrative agreement resulting from 


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Federal Register / Vol. 90, No. 2 / Friday, January 3, 2025 / Rules and Regulations 509 

a contractor’s proactive outreach, as 

opposed to resulting from a ‘‘potential 

proceeding,’’ need not be publicly 

posted to the Federal Awardee 

Performance and Integrity Information 

System (FAPIIS). 

Response: The statute (41 U.S.C. 

2313) applies to any administrative 

agreement, making no exceptions for 

how the agreement came about. The 

applicable requirement mandates 

FAPIIS include information regarding 

‘‘[e]ach Federal administrative 

agreement entered into by the person 

and the Federal Government in the 

period to resolve a suspension or 

debarment proceeding.’’ 41 U.S.C. 

2313(c)(4). An administrative agreement 

restricting the Government’s ability to 

seek suspension or debarment 

necessarily resolves suspension and 

debarment proceedings. Any such 

agreement forecloses the opportunity to 

pursue those remedies on the facts of 

the existing administrative agreement. 

5. Administrative Record 

Comment: A respondent 

recommended including language in the 

final rule that requires all agencies to (i) 

provide as part of the notice initiating 

a proposed debarment or suspension, or 

with a pre-notice letter, a copy of the 

relevant administrative record or other 

compiled information, in the case of a 

pre-notice letter, and (ii) distribute, 

upon receipt of a request from a 

contractor for the administrative record 

or information supporting a pre-notice 

letter, a copy of the administrative 

record or compiled information to the 

contractor within five days of receipt of 

the written request. These 

recommended changes promote a 

decision-making process that is ‘‘as 

informal as is practicable, consistent 

with principles of fundamental 

fairness,’’ see FAR 9.406–3(b), and serve 

to standardize practices across all 

Federal SDO activities. The respondent 

recognized this recommendation falls 

outside the stated objective of 

improving the ‘‘consistency between the 

procurement and nonprocurement 

procedures on suspension and 

debarment.’’ Nonetheless, the 

respondent encouraged consideration of 

this change to promote consistent 

standards of fundamental fairness. The 

respondent added that in an appropriate 

rulemaking, a similar change could be 

made to the NCR to achieve alignment. 

Response: DoD, GSA, and NASA 

acknowledge the suggestion and decline 

to adopt it. This matter appropriately 

remains one of agency discretion. 

Comment: A respondent 

recommended adding a definition of 

‘‘Administrative Record’’ (or ‘‘Official 

Record’’) to the FAR. 

Response: The administrative record 

is the information the SDO has at the 

time that official makes a decision 

regarding a suspension or debarment 

proceeding. See FAR 9.406–3(d) and 

9.407–3(d). In the context provided by 

the FAR, a formal definition is not 

necessary. 

Comment: Under the NCR, SDOs are 

required to include in the 

administrative record for proposed 

debarments and suspensions ‘‘[a]ny 

further information and argument 

presented in support of, or opposition 

to, the [action].’’ See 2 CFR 

180.750(a)(2) and 180.845(b)(2). The 

respondent recommended that the FAR 

require a copy of all supplemental 

materials not provided by the contractor 

be distributed to the contractor within 

five days of the SDO’s decision to 

include the materials in the 

administrative record. This change 

promotes consistent standards across 

agencies as well as fundamental 

fairness. 

Response: DoD, GSA, and NASA 

acknowledge the suggestion and decline 

to adopt it. Rather than representing 

what to include in the administrative 

record for proposed debarments and 

suspensions, 2 CFR 180.750(a)(2) and 

180.845(b)(2) represent what to include 

in the administrative record after the 

SDO suspends or proposes the 

contractor for debarment. The 

administrative record is typically given 

to a contractor after a decision has been 

made; however, in the time between 

notices agencies have the discretion to 

provide documents to the contractor 

upon request. This flexibility is 

commensurate with FAR 9.406–3(b)(1). 

Comment: A respondent expressed 

support for the FAR revision to require 

that an SDO make a debarment decision 

within 45 days after the ‘‘the official 

administrative record is closed.’’ 89 FR 

1049. Given the significance of closing 

the ‘‘official administrative record,’’ the 

respondent recommended also requiring 

that the contractor be notified of the 

date when the official administrative 

record is to close. This revision 

promotes transparency and orderly 

process in the debarment proceedings, 

allows the contractor to add any 

additional information to the record 

before its closure, and allows the 

contractor to assert procedural rights 

relating to the timing of the debarment 

decision. The recommended change 

would also ensure that the agency and 

the contractor are on the same footing 

for purposes of measuring the time 

given for the SDO’s decision making. 

The respondent asserts that this change 

would also promote consistent 

standards across agencies and is 

consistent with notions of fundamental 

fairness. 

Response: DOD, GSA, and NASA 

recognize the importance of 

transparency in the Government’s 

suspension and debarment procedures. 

The Councils considered the 

respondent’s suggestion and made edits 

at FAR 9.406–3(d)(1) to clarify that the 

official record closes upon the 

expiration of the contractor’s time to 

submit information and argument in 

opposition, including any extensions. If 

a contractor is unsure whether the 

administrative record has been closed, 

they should ask the SDO to clarify. 

6. Mitigating and Aggravating Factors 

That Could Apply to an Individual 

Person Proposed for Exclusion 

Comment: A respondent stated that 

even with the proposed inclusion of 

additional aggravating or mitigating 

factors from the NCR in the FAR, under 

both the FAR and the NCR, the factors 

that an SDO considers when evaluating 

whether exclusion is necessary apply 

most directly to organizations, not 

people. The respondent stated that this 

gap is significant given that the majority 

of suspension and debarment actions 

appear to be brought against 

individuals, as opposed to 

organizations. Moreover, unlike an 

organization, an individual proposed for 

exclusion may not be able to afford 

counsel to represent him or her in a 

suspension or debarment proceeding. 

As these factors are currently drafted, 

and without the means to secure 

experienced counsel, an individual may 

not even realize that the mitigating and 

aggravating factors are a consideration 

that could apply in the situation of an 

individual facing potential exclusion. 

Fundamental fairness, transparency, 

informality, and due process counsel in 

favor of developing factors that the 

average person can understand. The 

respondent provided examples of 

potential factors that could apply to an 

individual person proposed for 

exclusion. The respondent recognized 

that this suggestion extends beyond 

mere alignment of the FAR with the 

NCR but encouraged consideration of 

adding these additional factors to 

promote fundamental fairness in the 

treatment of individuals proposed for 

suspension or debarment. 

Response: DOD, GSA, and NASA 

have considered the recommendation to 

include mitigating and aggravating 

factors for individuals. As set forth in 

FAR 9.406–1(a), such factors apply to a 

‘‘contractor.’’ Pursuant to FAR 9.403, 

the definition of ‘‘contractor’’ 


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510 Federal Register / Vol. 90, No. 2 / Friday, January 3, 2025 / Rules and Regulations 

specifically includes both individuals 

and other legal entities. The Councils 

recognize that clarifying the mitigating 

and aggravating factors that are 

applicable to individuals may increase 

transparency. Consequently, FAR 

9.406–1(a) is modified to provide 

clarification regarding which factors 

may apply to individuals. Other 

mitigating or aggravating factors 

proposed by the respondent are more 

suitably considered at the SDO’s 

discretion under the catch-all factor at 

FAR 9.406–1(a)(17). 

C. Other Changes 

The term ‘‘sanctions’’ is replaced with 

‘‘remedies’’ at FAR 9.402(b) for 

consistency with the FAR language in 

part 9. Language was added at FAR 

9.406–3(f)(1) and 9.407–3(e)(1) for 

parallel construction with FAR 9.406– 

3(f)(2) and 9.407–3(e)(2), respectively. 

Minor edits were made to the final rule 

to update text for current FAR drafting 

conventions and to improve readability. 

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 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 rule improves consistency 

between the procurement and 

nonprocurement procedures on 

suspension and debarment. These 

changes in the FAR 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. Congressional Review Act 

Pursuant to the Congressional Review 

Act, DoD, GSA, and NASA will send 

this rule to each House of the Congress 

and to the Comptroller General of the 

United States. The Office of Information 

and Regulatory Affairs (OIRA) in the 

Office of Management and Budget has 

determined that this rule does not meet 

the definition in 5 U.S.C. 804(2). 

VII. Regulatory Flexibility Act 

DoD, GSA, and NASA have prepared 

a Final Regulatory Flexibility Analysis 

(FRFA) consistent with the Regulatory 

Flexibility Act, 5 U.S.C. 601–612. 

1. Statement of the need for, and the 

objectives of, the rule. 

DoD, GSA, and NASA are amending 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 rule is to change the 

FAR so that the two systems of procurement 

and nonprocurement suspension and 

debarment will be in closer alignment where 

appropriate, to enhance transparency and 

consistency within the FAR system. 

2. Statement of the significant issues raised 

by the public comments in response to the 

initial regulatory flexibility analysis, a 

statement of the assessment of the agency of 

such issues, and a statement of any changes 

made to the rules as a result of such 

comments. 

There were no significant issues raised by 

the public comments in response to the 

initial regulatory flexibility analysis. 

3. Description of and an estimate of the 

number of small entities to which the rule 

will apply. 

The final rule applies to all entities that do 

business with the Federal Government. 

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 SDO 

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 

2021, 2022, and 2023. Next, the entities on 

that list were compared with unique 

identification numbers 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 

were identified based on their primary 

NAICS code. 

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 debarmentSAM exclusions 

FY 2021 FY 2022 FY 2023 Median 

SB/total exclusions SB/total exclusions SB/total exclusions SB percent 

Small Business/Total Exclusions.273/429 .................................... 251/417 .................................... 241/392.

Small Business Percentage ..... 64 percent ................................ 60 percent ................................ 61 percent ................................ 61 percent. 

4. Description of projected reporting, 

recordkeeping, and other compliance 

requirements of the rule. 

The 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. 

5. Description of the steps the agency has 

taken to minimize the significant economic 

impact on small entities consistent with the 

stated objectives of applicable statutes. 

The FAR changes are not expected to have 

a significant economic impact on a 

substantial number of small entities. The rule 

imposes 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. It is anticipated that this 

rule will have a positive impact on small 

businesses with increased transparency in 

the process. DoD, GSA, and NASA were 

unable to identify any significant alternatives 


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Federal Register / Vol. 90, No. 2 / Friday, January 3, 2025 / Rules and Regulations 511 

to accomplish the desired objective of the 

rule. 

Interested parties may obtain a copy 

of the FRFA from the Regulatory 

Secretariat Division. The Regulatory 

Secretariat Division has submitted a 

copy of the FRFA to the Chief Counsel 

for Advocacy of the Small Business 

Administration. 

VIII. 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). 

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

22, 25, 26, 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 are 

amending 48 CFR parts 2, 3, 9, 22, 25, 

26, 33, and 52 as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 2, 3, 9, 22, 25, 26, 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 by— 

■ a. Revising the definition of 

‘‘Conviction’’; 

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

removing ‘‘a debarring’’ and ‘‘is 

excluded is ‘‘debarred.’’ ’’ and adding ‘‘a 

suspending and debarring’’ and ‘‘is 

‘‘debarred’’ is excluded.’’ in their places, 

respectively; 

■ c. Adding in alphabetical order the 

definition of ‘‘Suspending and debarring 

official’’; and 

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

removing ‘‘suspending official’’ and 

‘‘disqualified is ‘‘suspended.’’ ’’ and 

adding ‘‘suspending and debarring 

official’’ and ‘‘ ‘‘suspended’’ is 

disqualified.’’ in their places, 

respectively. 

The revision and addition read as 

follows: 

2.101 Definitions. 

* * * * * 

Conviction means a judgment or 

conviction of a criminal offense by any 

court of competent jurisdiction, whether 

entered upon a verdict or a plea, and 

includes a conviction entered upon a 

plea of nolo contendere. For use in 

subpart 9.4, see the definition at 9.403. 

For use in subpart 26.5, see the 

definition at 26.503. 

* * * * * 

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) 

introductory text ‘‘debarred or 

suspended’’ and adding ‘‘debarred, 

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— 

■ a. In paragraph (b): 

■ i. Removing ‘‘sanctions’’ and adding 

‘‘remedies’’ in its place; and 

■ ii. Removing ‘‘set forth’’; and 

■ b. Removing from paragraph (d) 

‘‘Interagency Committee on Debarment 

and Suspension’’ and ‘‘Section 873’’ and 

adding ‘‘Interagency Suspension and 

Debarment Committee’’ and ‘‘section 

873’’ in their places, respectively. 

■ 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 revision 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 in 2 CFR subtitle B. 

Pre-notice letter means a written 

correspondence issued to a contractor in 

a suspension or debarment matter, 


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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 by the Agency’’ and 

adding ‘‘exclusion, including each 

voluntary exclusion, accomplished by 

the agency’’ 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 

■ 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 26.505(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) 

introductory text ‘‘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; 

■ b. Removing from paragraph (b) 

introductory text ‘‘or proposed for 

debarment, unless’’, ‘‘or proposed for 

debarment as’’, ‘‘Protecting the 

Government’s Interests’’, and ‘‘or 

Proposed for Debarment, to’’ and adding 

‘‘proposed for debarment, or voluntarily 

excluded, unless’’, ‘‘proposed for 

debarment, or voluntarily excluded, as’’, 

‘‘Protecting the Government’s Interest’’, 

and ‘‘Proposed for Debarment, or 

Voluntarily Excluded, to’’ in their 

places, respectively; and 

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

proposed debarment’’ and adding 

‘‘proposed debarment, or voluntary 

exclusion’’ in its place. 

■ 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 (some of the factors below 

could apply to individuals such as 

contractors that are individuals, and are 

so marked): 

(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 (including 

an individual) 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 (or 

the individual cooperated with the 

investigation) and, if so, made the result 

of the investigation available to the 

suspending and debarring official. 

(4) Whether the contractor (including 

an individual) cooperated fully with 

Government agencies during the 

investigation and any court or 

administrative action. 

(5) Whether the contractor (including 

an individual) 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 (including 

an individual) has implemented or 

agreed to implement remedial measures, 

including any identified by the 

Government. 

(8)(i) Whether the contractor has 

instituted or agreed to institute new or 

revised review and control procedures, 

ethics training, or other relevant training 

programs. 

(ii) For an individual, whether the 

individual has attended relevant 

remediation training. 

(9) Whether the contractor (including 

an individual) has had adequate time to 

eliminate the circumstances that led to 

the cause for debarment. 

(10)(i) Whether the contractor’s 

management recognizes, accepts, and 

understands the seriousness of the 

misconduct giving rise to the cause for 

debarment and has implemented 

programs to prevent recurrence. 

(ii) For an individual, whether the 

individual recognizes, accepts, and 

understands the seriousness of the 

misconduct giving rise to the cause for 

debarment and has adopted practices to 

prevent recurrence. 

(11) Whether the contractor 

(including an individual) 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 (including an individual) 

planned, initiated, or carried out the 


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wrongdoing, and the kind of positions 

within the contractor’s organization 

held by the individual involved in the 

wrongdoing. 

(13) Whether the wrongdoing was 

pervasive within the contractor’s 

organization. 

(14) Whether the individual or the 

contractor’s principals tolerated the 

offense. 

(15) Whether the contractor 

(including an individual) 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 subpart. 

(16) Whether the contractor 

(including an individual) 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 

subpart. 

(17) Whether there are any other 

factors to consider for the contractor 

(including an individual) 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) of this section 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 26.505(e)) states 

in writing the compelling reasons 

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 contracts 

pursuant to the Federal Acquisition 

Regulation in this chapter and contracts 

for the purchase of Federal personal 

property pursuant to the Federal 

Management Regulation (FMR) in 41 

CFR part 102–38, 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. Revising the heading of paragraph 

(b), paragraphs (b)(1) and (c), the 

heading of paragraph (d), and paragraph 

(d)(1); 

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

‘‘The debarring official’’ and adding 

‘‘The suspending and debarring official’’ 

in its place; 

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

‘‘The debarring official’’ wherever it 

appears and adding ‘‘The suspending 

and debarring official’’ in its place; 

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

‘‘The debarring official’s’’ and adding 

‘‘The suspending and debarring 

official’s’’ in its place; 

■ f. Revising the heading of paragraph 

(e) and paragraph (e)(1) introductory 

text; 

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

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

in its place; 

h. Removing from paragraph (e)(2) 

‘‘the debarring official’’ and ‘‘by 

certified mail, return receipt requested’’ 

and adding ‘‘the suspending and 

debarring official’’ and ‘‘using the 

procedures in paragraphs (c)(1) and (2) 

of this section’’ in their places, 

respectively; 

■ i. Revising paragraph (f); and 

■ j. Adding paragraphs (g) and (h). 

The revisions and additions read as 

follows: 

9.406–3 Procedures. 

* * * * * 

(b) Decision-making 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. If the 

suspending and debarring official 

extends the opportunity for the 

contractor to submit material in 

opposition, then the official should also 

give a deadline for submission of 

materials. 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 U.S. mail or private delivery 

service to the last known street address, 

with delivery notification service; 

(ii) By email to the point of contact 

email address in the contractor’s SAM 

registration, if any, or to the last known 

email address as confirmed by the 

agency; 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; 


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(v) The agency’s procedures governing 

debarment decision making; 

(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; 

and 

(ix) That if the contractor fails to 

disclose the information in paragraph 

(c)(3)(viii) of this section, 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 expiration of the 

contractor’s time to submit information 

and argument in opposition, including 

any extensions (see paragraph (b)(1) of 

this section). 

* * * * * 

(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 using the 

procedures in paragraphs (c)(1) and (2) 

of this section— 

* * * * * 

(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 documentation reflecting 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 

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 paragraph (b) and 

paragraph (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 paragraph (b); 

■ 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 an 

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 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. 

* * * * * 


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(e)(1) When the suspending and 

debarring official has authority to 

suspend contractors from both contracts 

pursuant to the Federal Acquisition 

Regulation in this chapter and contracts 

for the purchase of Federal personal 

property pursuant to Federal 

Management Regulation (FMR) in 41 

CFR part 102–38, 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. Revising the heading of paragraph 

(b) and 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 ‘‘by certified mail, 

return receipt requested’’ and adding 

‘‘using the procedures in 9.406–3(c)(1) 

and (2)’’ in its place; 

■ e. Revising paragraph (c)(1); 

■ f. Removing from the end of paragraph 

(c)(5) the word ‘‘and’’; 

■ g. Revising paragraph (c)(6); 

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

■ i. Revising paragraph (d) heading and 

paragraph (d)(1); 

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

‘‘suspending official’’ and adding 

‘‘suspending and debarring official’’ in 

its place; 

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

‘‘suspending official’’ wherever it 

appears and adding ‘‘suspending and 

debarring official’’ in its place; 

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

‘‘suspending official’s’’ and adding 

‘‘suspending and debarring official’s’’ in 

its place; 

■ m. Revising paragraphs (d)(3) and (4); 

■ n. Adding a heading for paragraph (e); 

■ o. Revising paragraphs (e)(1) and (2); 

■ p. Removing from paragraph (e)(3) 

‘‘suspending official’’ and adding 

‘‘suspending and debarring official’’ in 

its place; and 

■ q. Adding paragraphs (f) and (g). 

The revisions and additions read as 

follows: 

9.407–3 Procedures. 

* * * * * 

(b) Decision-making 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. If the suspending and 

debarring official extends the 

opportunity for the contractor to submit 

material in opposition, then the official 

should also give a deadline for 

submission of materials. 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) * * * 

(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; 

* * * * * 

(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 paragraph 

(c)(7) of this section 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. 

* * * * * 

(3) The suspending and debarring 

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 and debarring official’s 

decision shall be sent to the contractor 

and any affiliates involved, using the 

procedures in 9.406–3(c)(1) and (2). 

(e) Administrative agreement. (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 


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516 Federal Register / Vol. 90, No. 2 / Friday, January 3, 2025 / Rules and Regulations 

upload documentation reflecting 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) Voluntary exclusion. (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) ‘‘of 

investigation’’, ‘‘suspending official’’, 

and ‘‘this subsection’’ and adding ‘‘of an 

investigation’’, ‘‘suspending and 

debarring official’’, and ‘‘this section’’ in 

their places, respectively; 

■ 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). 

The revision reads 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 

the text ‘‘Protecting the Government’s 

Interests when Subcontracting with 

Contractors Debarred, Suspended, or 

Proposed for Debarment, in’’ and adding 

‘‘Protecting the Government’s Interest 

when Subcontracting with Contractors 

Debarred, Suspended, 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 memorandum of 

understanding (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, debarred, 

or subject to a voluntary exclusion as a 

result of the MOU termination, the 

contractor is not eligible to participate 

in E-Verify during the period of its 

suspension, debarment, or voluntary 

exclusion. If the contractor is not 

suspended, debarred, or subject to a 

voluntary exclusion, then the contractor 

must reenroll in E-Verify. 

PART 25—FOREIGN ACQUISITION 

25.206 [Amended] 

■ 24. 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] 

■ 25. 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] 

■ 26. 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] 

■ 27. Amend section 25.703–2 by— 

■ a. Removing from paragraph (b)(1) 

‘‘commercial services, ’’ and adding 

‘‘commercial services,’’ in its place; 

■ b. Removing from paragraph (b)(2) 

‘‘suspending official’’ and adding 

‘‘suspending and debarring official’’ in 

its place; and 

■ c. Removing from paragraph (b)(3) 

‘‘The debarring official’’ and adding 

‘‘The suspending and debarring official’’ 

in its place. 

PART 26—OTHER SOCIOECONOMIC 

PROGRAMS 

26.505 [Amended] 

■ 28. Amend section 26.505 by 

removing from paragraph (c) 

‘‘suspension and debarment’’ and 

adding ‘‘suspending and debarring’’ 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 and date; 

■ b. Removing from paragraph (c) 

‘‘suspended, or proposed for debarment 

by’’ and adding ‘‘suspended, proposed 

for debarment, or voluntarily excluded, 

by’’ in its place; 

■ c. Removing from paragraph (d) 

introductory text ‘‘or proposed for 


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debarment’’ and adding ‘‘proposed for 

debarment, or voluntarily excluded’’ in 

its place; and 

■ d. Removing from paragraph (d)(4) 

‘‘suspension, or proposed debarment’’ 

and adding ‘‘suspension, proposed 

debarment, or voluntary exclusion’’ in 

its place. 

The revisions read 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 

(JAN 2025) 

* * * * * 

■ 31. Amend section 52.212–5 by— 

■ a. Revising paragraphs (b)(12), (32), 

and (40) and (e)(1)(xix); and 

■ b. In Alternate II, revising the date of 

the alternate and paragraph (e)(1)(ii)(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. 

* * * * * 

(b) * * * 

l (12) 52.209–6, Protecting the 

Government’s Interest When 

Subcontracting With Contractors 

Debarred, Suspended, Proposed for 

Debarment, or Voluntarily Excluded. 

(JAN 2025) (31 U.S.C. 6101 note). 

* * * * * 

l (32) 52.222–19, Child Labor— 

Cooperation with Authorities and 

Remedies (JAN 2025) (E.O. 13126). 

* * * * * 

l (40) 52.222–54, Employment 

Eligibility Verification (JAN 2025) 

(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 (JAN 2025) (E.O. 

12989). 

* * * * * 

Alternate II (JAN 2025) * * * 

(e)(1) * * * 

(ii) * * * 

(R) 52.222–54, Employment Eligibility 

Verification (JAN 2025) (Executive 

Order 12989). 

* * * * * 

■ 32. Amend section 52.213–4 by 

revising paragraphs (b)(1)(iii) and 

(b)(2)(ii) to read as follows: 

52.213–4 Terms and Conditions— 

Simplified Acquisitions (Other Than 

Commercial Products and Commercial 

Services). 

* * * * * 

(b) * * * 

(1) * * * 

(iii) 52.222–19, Child Labor— 

Cooperation with Authorities and 

Remedies (JAN 2025) (E.O. 13126) 

(Applies to contracts for supplies 

exceeding the micro-purchase 

threshold, as defined in FAR 2.101 on 

the date of award of this contract). 

* * * * * 

(2) * * * 

(ii) 52.209–6, Protecting the 

Government’s Interest When 

Subcontracting with Contractors 

Debarred, Suspended, Proposed for 

Debarment, or Voluntarily Excluded 

(JAN 2025) (Applies to contracts over 

the threshold specified in FAR 9.405– 

2(b) on the date of award of this 

contract). 

* * * * * 

■ 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. 

* * * * * 

Child Labor—Cooperation With 

Authorities and Remedies (JAN 2025) 

* * * * * 

■ 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 

(JAN 2025) 

* * * * * 

(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 Contractor is not suspended, 

debarred, or subject to a voluntary exclusion, 

then the Contractor must reenroll in E-Verify. 

* * * * * 

[FR Doc. 2024–31403 Filed 1–2–25; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 4, 8, 16, 19, and 52 

[FAC 2025–03; FAR Case 2020–016, Item 

II; Docket No. FAR–2020–0016; Sequence 

No. 1] 

RIN 9000–AO18 

Federal Acquisition Regulation: 

Rerepresentation of Size and 

Socioeconomic Status 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing a final rule amending the 

Federal Acquisition Regulation (FAR) to 

implement regulatory changes made by 

the Small Business Administration to 

order-level size and socioeconomic 

status rerepresentation requirements. 

DATES: Effective January 17, 2025. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. 

Dana Bowman, Procurement Analyst, at 

202–803–3188 or by email at 

Dana.Bowman@gsa.gov. For information 

pertaining to status, publication 

schedules contact the Regulatory 

Secretariat Division at 202–501–4755 or 

GSARegSec@gsa.gov. Please cite FAC 

2025–03, FAR Case 2020–016. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA published a 

proposed rule at 88 FR 67189 on 

September 29, 2023, to implement 

regulatory changes made by the Small 

Business Administration (SBA) in its 

final rule published on October 16, 

2020, at 85 FR 66146. For further details 

please see the proposed rule. Eight 

respondents submitted comments on the 

proposed rule. 


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