Commentary and Proposed Unified Suspension & Debarment Rule for Procurement and Nonprocurement Activities

I. Introduction

In the early 1980s, the federal government significantly improved how executive branch agencies addressed fraud, waste, abuse, poor performance, and noncompliance in government funded transactions. One important part of that effort standardized executive branch discretionary suspension and debarment procedures (sometimes referred to in the private sector as “blacklisting”) in two separate rulemakings — one governing federal procurement transactions under the Federal Acquisition Regulation (FAR); the second for federal assistance, loans, and other benefits (ALOB) under a jointly issued set of agency regulations known as the “Nonprocurement Common Rule” (NCR). Both initiatives were coordinated by the Office of Management and Budget (OMB).These government-wide rules were the direct result of several decades of criticism by the legal and business communities,a study by the Administrative Conference of the United States (ACUS),and several court decisions that established a constitutional basis for a fundamentally fair debarment process. Congressional oversight committees, government watchdog organizations, and the inspectors general community also helped develop today’s regulatory scheme.

While critical parts of the rules relating to the legal standards of evidence, criteria for suspension, nature and duration of sanctions, and fundamental elements of official notice and opportunity to contest were consistent, the two rules have never enjoyed full symmetry. Each rule was drafted to reflect the technical language common to the target audience, and reflective of its relationship to the federal government. For example, the FAR uses many terms applicable to federal business and commercial relationships, while the NCR uses more generic terms that apply to a wide universe of ALOB relationships with the federal government. Over the last thirty-five years, amendments to each rule have moved the language, interpretation, and practical application of the rules farther apart. For example, the original exclusionary treatment that applied to a Notice of Proposed Debarment (NPD) issued under the FAR was enlarged in 1989. This change was totally out of harmony with the effect of issuing an NPD under the NCR and blurred the distinction between suspension and debarment. Another example is the redrafting of the NCR in a plain language question-and-answer format published in 2003 as part of the National Performance Review under the Clinton administration spearheaded by former U.S. Vice President Albert A. Gore during his reinventing government initiative. Other significant changes included adding a cause for debarment for tax deficiency under the FAR that is in total contradiction to the express language and treatment regarding tax deficiency under the NCR.

In recent years, many in the private bar have called for improvements to the federal debarment and suspension system, including reconciliation of the substantive differences between the FAR and the NCR. In an article appearing in the Spring 2017 edition of the Public Contract Law Journal (PCLJ), the authors addressed some of the more significant differences between the rules and some of the factors that led to those differences. That information will not be repeated here. Instead, this follow-up article proposes a draft Uniform Suspension and Debarment Rule (USDR) that attempts to reconcile those differences. The draft USDR in this article incorporates some of the simplified and generic features of the NCR but in the more traditional regulatory format of the FAR. Whether the OMB and the federal agencies will embrace a unified rule for debarment and suspension is essentially a decision to be made solely by the government. The authors believe that any attempt by interested parties outside the government to diminish the authority suspension and debarment officials (SDOs) presently enjoy, or to make the process more legalistic, is unlikely to succeed. Accordingly, the draft USDR does not seek to alter federal SDOs’ authority or flexibility in any way. It preserves that authority and merely offers a context in which to advance uniformity within a single and easy-to-understand rule. It also includes some provisions that reflect practices and policies already in place, but that are not as visible under the current language and structure of the rules.

While the authors believe that the inspectors general community was correct in its 1982 assessment that a single debarment and suspension sys- tem was feasible, and that a USDR would virtually guarantee consistency in debarment and suspension practice under federal contracts and assistance activities, the authors believe a single rule is not absolutely necessary to achieve substantive and technical harmony. With discipline in the rulemaking process, coordination between the Office of Federal Procurement Policy (OFPP) and the Office of Federal Financial Management (OFFM), and regular communication between the FAR Council and OMB’s Interagency Suspension and Debarment Committee (ISDC), a single debarment and suspension system with consistent requirements may be accomplished and maintained under separate rules that employ language common to each community.

The draft USDR in this article is intended to be a catalyst for further meaningful discussion between those with serious interests in improving the way the Federal Suspension and Debarment Program operates. The rest of this article consists of two parts. First, it highlights some of the more significant subject areas that are currently at variance between the FAR and the NCR and suggests how to reconcile those provisions. Second, it provides a full text version of a draft USDR incorporating those reconciled provisions.

II. Summary of Reconciled Provisions

A. Effect of a Notice of Proposed Debarment

1. Treatment Under the USDR

The USDR would eliminate the automatic ineligibility that applies to contractors, subcontractors, and individuals who receive an NPD under the current FAR. It adopts the NCR treatment for such notices, which carries no automatic ineligibility without the SDO issuing a suspension order.

2. Discussion

Subpart 9.4 of the FAR was amended in 1989to extend the agency-specific ineligibility that applied to NPDs based on other than judgment-based causes for debarment (criminal or civil), to apply government-wide. Treatment of the NPD under the pre-1989 FAR was based on the principle that a contractor should have its “day in court” before applying the debarment exclusion on a government-wide basis. Accordingly, the pre-1989 FAR reflected a more cautious approach that required fact-finding before applying the exclusions on a government-wide basis. However, once an NPD had the same effect as a suspension after 1989, it seems that the process tended to blur the significant distinction between a debarment and suspension action and operated as a harsh treatment for those who had never had an opportunity to contest alleged misconduct or poor performance of a contract. In contrast, the NCR did not follow suit because the agencies in the assistance community found the practice to be inconsistent with fundamental fairness. Under the NCR, issuance of an NPD did not result in automatic ineligibility either for awards made by the proposing agency or on a government-wide basis. If the government has a need for immediate protection, practice under the NCR is for the SDO to issue a suspension order along with the NPD pending conclusion of the SDO’s review.

This change to the effect of issuing an NPD under the FAR may have contributed to the increased use of “Show Cause” Notices in debarment actions initiated under the FAR. Show Cause Notices are useful tools when applied in many government contexts, including debarment actions contemplated under the NCR. But there is no published guidance in subpart 9.4 of the FAR or the NCR as to when and how they should be used and, therefore, are often applied in an uneven manner across the government. It feeds a misperception by some critics that show cause notices are vehicles to provide favored treatment to large contractors while small contractors and individuals receive harsher treatment under an NPD.

For these reasons, we believe that if the government should issue a USDR, the rule should adopt the NCR approach to NPDs by eliminating the FAR’s immediate effect of issuing an NPD. Show Cause Notices should remain part of the overall system and authorized under a USDR, but there should be no obscurity about its propriety of use or the importance of allowing a contractor (or an assistance participant) the option to be heard prior to applying any exclusion, absent information and circumstances that justify suspension pending completion of the SDO’s review.

B. Effect of Exclusion on Lower Tier Transactions

1. Treatment Under the USDR

The USDR would enforce suspension and debarment at all tiers below the initial transaction (prime contract, grant, loan, etc.) without regard to whether privity exists between the government and the parties to the lower tier transaction.

2. Discussion

Lower tier coverage under the FAR and the NCR has fluctuated back and forth since the two rules were initially published. Originally, the NCR provided for full coverage at all lower tiers, while the FAR was limited to transactions in which the government had privity (i.e., was a party to the contract or reserved the right to approve the subcontract with the prime contractor). In 2003, in an effort to bring the rules closer together, the NCR was changed to clip lower tier coverage in a complex way that excluded procurement transactions in the chain of transactions below the primary tier award. In essence, the NCR adopted an automatic “clipping” of coverage unless an agency specifically elected to retain lower tier coverage in its implementing rule. This compromise was reached because several agencies’ programs and benefits were more vulnerable to fraud and misconduct at tiers well below the first contract awarded by the ALOB, and lower tier application of a federal suspension or debarment was needed to adequately protect the federal investment in the activity. Although that change brought the NCR somewhat closer to the FAR treatment for similar transactions, it was internally awkward and difficult to manage and enforce. Just as the NCR was altered to clip lower tier coverage, the FAR, under pressure from Congress to better manage the lower tier risk in federal contracting, reversed itself and adopted lower tier coverage without regard to privity, thereby leaving the FAR and the NCR again out of alignment with one another.

The basis for suspension and debarment in the federal arena is to protect the integrity of federally-funded programs and activities, regardless of whether tax dollars are expended through procurement or nonprocurement vehicles. Worldwide use of computers and access to the internet since the creation of the FAR and the NCR have greatly reduced enforcement obstacles that time, distance, and a hard copy publication of the government’s list of debarred and suspended entities previously presented. Today, access to the government’s debarred and suspended list is simple, timely, and economical. In this environment, there appears no practical reason why debarment and suspension exclusions cannot be enforced at all tiers of a procurement or nonprocurement transaction.

C. Prohibited Activities for Individuals

1. Treatment Under the USDR

The USDR would adopt the wider scope of prohibited activities that applies to debarred and suspended individuals under the NCR.

2. Discussion

Under the FAR, debarred and suspended individuals are generally prohibited from receipt of government contracts and subcontracts thereunder. Beyond that, under the FAR, individuals and entities are only prohibited from acting in the capacity of an agent, representative, or surety. There are no other restrictions on a debarred or suspended individual who may be employed by a contractor or subcontractor in a federal procurement transaction. Under the NCR, individuals are similarly prohibited from receipt of assistance awards and subawards, and from serving as an agent, representative, or surety. However, the NCR also renders them ineligible to serve as “principals” in covered transactions, which includes active owners, managers, and supervisors, as well as key persons whose required duties can substantially influence the outcome of the transaction.

The NCR wider coverage was introduced into the NCR because of misconduct by individuals within organizations while performing managerial, professional, or technical duties that seriously and directly jeopardized a government-funded transaction. For example, prior to the NCR expansion of coverage, chemists and certified lab technicians who fraudulently performed scientific analytical services on federally-funded Superfund remediation sites could not be excluded from performing those services on other federally-funded projects unless their debarment also applied to serving in a capacity beyond that of serving as an agent, representative, or surety on behalf of another employer. Similarly, supervisory engineers approving work for critical defense or infrastructure projects and accountants who prepare or approve claims submitted to the government were not covered and could pose serious risks to the government based on their past misconduct. As a result, the NCR was amended to preclude any debarred or suspended employee of a recipient or participant entity from serving in a key position on a federally-funded nonprocurement covered transaction. The authors believe this should also be the appropriate scope of protection for federal procurement transactions.

D. Debt and Tax Deficiency to the Government

1. Treatment Under the USDR

The USDR would incorporate the tax deficiency provisions of the FAR in place of the debts cause for debarment currently under the NCR.

2. Discussion

Under the original 1984 FAR, subpart 9.4 made no mention of debt, of any sort, as a trigger for a suspension or debarment action. Under the NCR, failure to pay substantial debt due the U.S. Government is, and has always been, a basis for debarment. At the time the NCR was being prepared, the Reagan administration voiced concerns to the NCR Drafting Committee about doctors and other professionals who had amassed significant personal wealth but who had not repaid their student loans. At the same time, the administration did not want to sanction farmers who, at the time, were struggling with the inability to repay federally insured bank loans and facing potential bankruptcy. Furthermore, the administration saw the Internal Revenue Service (IRS) as a strong-arm vehicle of the federal government and did not want to advance its power to collect federal taxes. These concerns resulted in a somewhat awkward cause for debarment for outstanding federal debt under the NCR that applies to some persons but not to others, and specifically excluded debt to the IRS.

Approximately twenty years later, Congress and the White House took interest in using federal debarment authority to preclude federal contractors from receipt of new contracts if the contractor was delinquent in payment of its taxes (i.e., owes debts to the U.S. Government). Accordingly, a cause for debarment based upon tax delinquency in excess of $3,000 (now $3,500) was added to subpart 9.4 of the FAR. That change placed the FAR and the NCR in diametrically different positions with respect to treatment of tax debt as a cause for debarment. It also leads to the result that if an entity is debarred for tax deficiency under the FAR, the debarment also applies to that entity in any covered nonprocurement transactions by reason of the statutory and regulatory reciprocity provisions applicable to the FAR and the NCR. This is so even though the NCR expressly excludes IRS debt as a basis for debarment under the NCR. Any attempt to create a USDR must reconcile the treatment of federal debt and tax deficiency that currently exists in the FAR and the NCR.

Given the complex history of the debt and tax delinquency issues, the authors believe an appropriate reconciliation is to follow the more limited treatment of tax delinquency as a cause for debarment and leave issues related to general outstanding debt to the U.S. Government to contracting officers and assistance award officials when making their required pre-award responsibility decisions during the award process.

E. Fact Finding in Suspension Proceedings

1. Treatment Under the USDR

The USDR allows the SDO to restrict fact finding during a suspension proceeding if the federal suspension is based on a state indictment and a state or local prosecutor advises that conducting a fact-finding proceeding could jeopardize an ongoing state investigation or legal proceeding.

2. Discussion

Both the FAR and the NCR authorize the SDO to restrict fact finding during a suspension contest if the suspension is based on a federal indictment and the Department of Justice (DOJ) advises that fact finding by the SDO could jeopardize an ongoing investigation or legal proceeding. The FAR is silent as to restricting fact finding when a federal suspension is based on a state or local indictment. The NCR specifically accords the same treatment to state and local prosecutors as that given to the DOJ. Because a suspension under both the FAR and the NCR can be based on either a federal or state indictment, the SDO’s option to restrict fact finding should be the same regardless of whether the underlying indictment is based on state or local proceedings. The authors believe this difference in the language between the FAR and the NCR may have been the result of oversight by the original FAR drafting committee, but it may also have been intended that the SDO rely on DOJ advice even when a suspension is based on a matter occurring at a state or local level. Either way, a USDR should be clear with regard to the matter. Accordingly, the USDR proposed in this article provides for consistent treatment with regard to suspensions based on federal, state or local indictments.

F. Definition of “Conviction”

1. Treatment Under the USDR

The USDR would adopt the definition of the term “conviction” used in the NCR rather than the definition used in the FAR. The NCR definition includes certain dispositions of criminal matters that do not technically include entry of a “judgment of conviction” but are diversionary dispositions sanctioned by a court of competent jurisdiction in lieu of entry of a judgment and commitment order.

2. Discussion

Under the FAR (and the NCR prior to 2003), the term “conviction” was limited to judgments that were “entered” by the court. It did not include other dispositions even where the record demonstrated a sufficient evidentiary basis to support the alleged misconduct. The reason this is important in debarment proceedings is that causes for debarment based upon a “conviction” need not undergo additional, and potentially resource intensive, fact finding to establish the existence of a cause for debarment. Pre-trial diversion practices, such as deferred prosecution agreements that involve only the participation of the prosecutor and the target of an investigation or criminal proceeding, are understandably outside the definition of “conviction.” However, when a disposition of a criminal case occurs with the participation of the court, and the court withholds entry of a judgement of conviction under an alternative sentencing arrangement , there is a measure of confidence that the facts supporting the alleged misconduct, even without the benefit of a trial, are sufficient for making a factual determination by the SDO in making a business decision on behalf of the government.

The federal nonprocurement community recognized this reality and amended its definition of “conviction” to incorporate such dispositions. The authors do not suggest that such cases make up a significant portion of criminal-based debarment actions. However, when these dispositions occur, as a matter of good business and public accountability, an SDO should be able to propose debarment based on the criminal disposition without having to prove the misconduct through a fact-finding proceeding. Accordingly, the USDR in this article uses the broader definition of “conviction” currently in the NCR.

G. Definition of “Present Responsibility” or “Presently Responsible”

1. Treatment Under the USDR

The USDR defines the term “present responsibility” or “presently responsible.”

2. Discussion

Neither the FAR nor the NCR provide a definition of “present responsibility” or “presently responsible.” This seems odd since ascertaining a respondent’s “present responsibility” is the goal of a suspension or debarment inquiry. Understandably, the U.S. Government may be reluctant to create a definition of present responsibility that is overly confining and may preclude it from action when circumstances demand protection. However, a respondent should be afforded a definition, in at least general terms, so that it can make a meaningful attempt to address the ultimate issue of the inquiry. It also would serve as a focal point for SDOs in ascertaining whether to use suspension or debarment options to address a matter that may have other remedies that are more suitable to address the government’s concerns. Without upsetting the wide latitude needed by an SDO to make an informed and measured business decision, the authors include a definition of the term “present responsibility” in the USDR that at least outlines what the ultimate target of the SDO’s debarment inquiry entails.

H. Affiliation

1. Treatment Under the USDR

The definition and treatment of affiliates under the USDR is the same as currently exists under the FAR and the NCR. The USDR, however, would include a procedural requirement that is currently present in the NCR, but not in the FAR, which allows the SDO to require a respondent to identify its affiliates when contesting a proposed debarment or suspension action.

2. Discussion

Contrary to popular belief, tracing a company’s affiliation through official public or commercial sources is neither easy nor necessarily reliable. In this regard, the respondent ordinarily enjoys a significant knowledge advantage over an SDO. Moreover, identifying affiliates is not quite the same as the SDO having the burden of proof to establish a cause for action. SDOs sometimes struggle to identify a company’s relationship with other potential affiliated entities to provide the affiliated entities with notice and an opportunity to be heard in a proposed debarment or suspension action. For this reason, the NCR was amended in 2003 to require respondents to reveal known affiliates when electing to contest an action. Failure to identify an affiliate does not deprive a respondent of its rights to contest an action under the rule, but it may deprive them of the privilege of obtaining an administrative agreement (AA) in lieu of debarment if the SDO finds the respondent to be noncooperative, elusive, or unwilling to identify its affiliated businesses. The authors view affiliation as a natural and necessary part of having a meaningful dialogue with the SDO. Accordingly, the USDR imposes an affirmative burden on the respondent to identify its affiliates as part of the contest process.

III. Sample USDR

The authors offer the following sample USDR as a means to advance meaningful discussion about the attributes of a USDR. Its terms represent our attempt to resolve the substantive differences between the current rules and is prepared in a semi-plain language format for ease of use by both the regulatory and the regulated communities. This sample USDR seeks to capture the strengths of both the existing FAR and NCR rules while improving the current Federal Suspension and Debarment Program overall.

Unified Suspension and Debarment Rule Sec. 100 Purpose and Applicability

101 Content. This rule sets forth uniform policies and procedures for discretionary debarment, suspension, voluntary exclusion or abstention of persons from award of, and participation in, federally-funded procurement and nonprocurement transactions including contracts, subcontracts, assistance, loans, and other benefits (ALOB) administered by, or on behalf of, executive branch departments and agencies. It also provides for enforcement of mandatory debarment imposed by legislation or executive order.

105 Scope. Debarment or suspension imposed pursuant to this rule (or agency-specific regulations supplementing this rule) shall apply to all procurement and nonprocurement ALOB transactions throughout the Executive branch of the United States. Voluntary exclusion, abstention, and other restrictions accepted under the terms of an administrative agreement (AA) shall be enforced in accordance with the terms of that agreement.

110 Application at all Tiers. Except as otherwise provided in this rule, a debarment, suspension, or voluntary exclusion accepted pursuant to this rule shall apply to all federal procurement and nonprocurement ALOB transactions, regardless of whether a transaction occurs at a primary tier, such as initial award to a contractor or recipient, or at a lower tier, such as a subcontract, sub-agreement, passthrough award, or procurement thereunder.

115 Other Restrictions. A voluntary abstention or other restriction(s) whose scope of coverage is less than that of a debarment or suspension imposed under sections 105 and 110 above, shall apply and be enforced in accordance with the terms of the AA under which those restrictions are accepted.

120 Authority. The authority to debar and/ or suspend a person under this rule or to agree to the terms of an AA in lieu of debarment or suspension rests solely with the suspending and/ or debarring official (SDO) to whom such authority has been delegated under appropriate department or agency delegation procedures. No other government official shall cause a person to be excluded from federal procurement or nonprocurement transactions such that the exclusion constitutes de facto debarment or suspension of that person. Nor shall a discretionary suspension or debarment of any person be imposed without following the procedures set forth by this rule or any applicable statute.

Sec. 200 Policies

201 Present Responsibility Standard. It is the policy of the executive branch to conduct procurement and nonprocurement activities only with and through presently responsible persons. Accordingly, government officials, contractors and subcontractors, recipients, and participants in nonprocurement transactions authorized to award, manage, or oversee federal procurement and nonprocurement activities are to ensure that such activities are accomplished free of corruption, conflict of interests, fraud, waste, abuse, poor performance, noncompliance, and other criminal, civil, and administrative concerns that render a person unsuitable to receive or participate in programs and activities funded, financed, guaranteed, or supported by the U.S. taxpayer. Information calling into question the present responsibility of any person should be promptly reported to a cognizant department or agency contracting officer, award official, program manager, investigative unit, SDO, or the Chair of the Interagency Suspension and Debarment Committee (ISDC).

205 Protection not Punishment. Discretionary debarment and suspension are serious actions to be used only to protect the procurement and nonprocurement interests of the U.S. Government. Accordingly, suspension or debarment should not be used to inflict punishment or to coerce any person into resolving a collateral criminal, civil, audit, or other administrative matter for which alternate procedures exist to resolve those matters.

210 Nexus. The SDO shall not institute or maintain a discretionary debarment and/ or suspension action against any person under this rule unless there is a sufficient nexus between the person, a cause for action, and a reasonable expectation that the person may participate in a federally funded transaction covered by this rule.

215 Alternate Remedies. In carrying out his or her responsibilities under this rule, the SDO shall exercise reasonable diligence and prudence at all times. The SDO should refrain from initiating a debarment and/ or suspension action (or discontinue such action) if he or she determines that other administrative remedies are available and are more appropriate to protect the interests of the U.S. Government.

220 Affiliation. In taking action under this rule, the SDO may include in the action any person who is subject to the control (directly or indirectly) of the person primarily responsible for the conduct, conditions or activities giving rise to a cause for action; or has the ability to control the person primarily responsible for the conduct, conditions or activities giving rise to a cause for action.

225 Imputed Conduct. In taking an action under this rule, the SDO may include in the action any person(s) who participated in or knew of the conduct, conditions, or activities forming the basis of a cause for action, or on whose business behalf the conduct, condition, or activities occurred. In the event the person to whom a cause for action is to be imputed is a natural person (i.e., an individual), the conduct, conditions, or activities are imputable to that natural person only if that individual had reason to know of the conduct, conditions, or activities giving rise to a cause for action.

230 Lead Agency. In taking any action under this rule, when more than one department or agency has an interest in addressing a debarment and/ or suspension matter, the ISDC shall coordinate the process for selecting one agency to act as the lead agency or provide for joint participation in addressing the matter. Selection of a lead agency, except when directed by statute, is a matter solely within the discretion and judgment of the government agencies and the ISDC. In selecting a lead agency, the government may consider the following factors, among others, without any one factor being preeminent:

a. The agency responsible for the procurement or nonprocurement transaction in which the conduct, conditions, or activities giving rise to the cause for action occurred;

b. The agency with the most significant procurement or nonprocurement activity with the potential respondent;

c. The agency conducting the investigation or having access to relevant information about the conduct, conditions, or activities giving rise to the cause for action;

d. The agency with subject matter and/or regulatory expertise relevant to the conduct, conditions, or activities giving rise to the cause for action; and

e. The agency with the resources and/or experience most appropriate to effectively address the government’s present responsibility concerns.

235 Pre-notice Engagement. Nothing in this rule shall preclude an SDO from having discussions with a potential respondent and/ or its representative prior to issuing a formal Notice of Proposed Debarment and/ or Notice of Suspension. Such discussions may be initiated by the government under a show cause or other pre-notice inquiry letter, or by a potential respondent and/ or its representative to proactively reach out to the government to address potential concerns about the potential respondent’s present responsibility.

240 Administrative Agreements. The SDO and respondent may, at any time, resolve debarment or suspension concerns on an interim or final basis pursuant to the terms of an AA. The AAs are binding on all federal executive branch agencies’ procurement and nonprocurement programs unless otherwise specified. If an AA includes terms of debarment, suspension, or voluntary exclusion, those restrictions are enforced by entry into the System for Award Management (SAM). Abstention, if appropriate to the resolution of the government’s concerns, is enforceable through the terms of the AA and are not listed in the SAM. An AA may contain such other terms and conditions as the SDO believes appropriate to protect and enforce the government’s procurement and nonprocurement interests. Nothing in this rule prohibits an SDO from resolving a potential suspension or debarment concern as part of a comprehensive or coordinated resolution of other government interests when the SDO determines such action to be in the overall best interest of the government.

245 De Facto Debarment/ Suspension Prohibited. No government official shall cause a person to be excluded from federal procurement or nonprocurement transactions on a general or ongoing basis such that the exclusion constitutes de facto debarment or suspension of that person.

250 Administrative Record. Every debarment or suspension action initiated or concluded pursuant to this rule shall be documented and preserved in an administrative record (AR) suitable for administrative or judicial review. The AR shall include all information provided to the SDO in support of a debarment or suspension action referral, all matters presented or submitted by the respondent in opposition to the action, a record of any factfinding proceedings, and other information material to the SDO’s disposition of the matter.

Sec. 300 Prohibitions on Debarred and Suspended Persons

301 General Prohibition. Debarment, suspension, and voluntary exclusion agreements shall apply to every federal procurement and non- procurement transaction, regardless of tier, unless such transaction is categorically exempt from coverage under section 401 or subject to a transaction-specific exception issued under section 405 of this rule. Procurement and nonprocurement transactions include:

a. Federal procurement contracts and subcontracts awarded pursuant to the FAR (including delivery orders against an indefinite delivery, indefinite quantity (IDIQ) contract beyond a guaranteed minimum); and

b. Federal nonprocurement ALOB transactions, such as: (1) grants; (2) loans; (3) loan guarantees; (4) cooperative agreements; (5) subsidies; (6) technical assistance; (7) leases; (8) property auctions; (9) concessions; (10) certain licenses and permits; (11) and authorizations to purchase, mine, acquire, use, or broker federally-owned property or rights therein, regardless of the vehicle or type of authorization used to confer such benefits. Such transactions include all lower tier transmissions, sub-agreements, and contracts or subcontracts to provide goods and services associated with the nonprocurement transaction.

305 Federal Award Officials. No federal official authorized to award, approve, or otherwise consent to award of a procurement or nonprocurement transaction may award, approve, or consent to make award to any person listed in the SAM as debarred, suspended, or voluntarily excluded from the transaction unless the transaction is categorically exempt under section 401, or the award official has issued a transaction-specific compelling reasons determination under section 405 of this rule.

310 Contractors, Subcontractors, Recipients, and Participants. No contractor, subcontractor, nonprocurement recipient, or participant shall award, approve, or otherwise consent to any transaction at a lower tier or other- wise allow a debarred, suspended, or voluntarily excluded person listed in the SAM to participate in a covered transaction, unless the transaction is categorically exempt under section 401, or the award official has issued a transaction-specific compelling reasons determination under section 405 of this rule.

315 Individual Prohibitions. No contractor, subcontractor, nonprocurement recipient, or participant may use the services of an individual (i.e., a natural person) who has been debarred, suspended, or voluntarily excluded pursuant to this rule to act as an agent, representative, surety, or principal with respect to any transaction covered by the general prohibitions under section 301 of this rule.

Sec. 400 Exemptions and Exceptions

401 Categorical Exemptions. The general prohibitions on award of, and participation in, covered transactions set forth under sections 105, 110, 115, and 301 of this rule do not apply to:

a. Transactions on which a legal obligation to continue the trans- action has already been incurred so long as the transaction is not terminated;

b. Task and delivery orders on an existing IDIQ contract for which the order is within a guaranteed minimum so long as the contract or delivery order is not terminated;

c. ALOBs awarded as a statutory entitlement to the recipient without regard to the recipient’s present responsibility;

d. Transactions with, or to, foreign governments, government-owned entities, and international organizations;

e. Transactions to provide immediate relief during a declared national emergency or disaster and for which the government determines the product or service to be critical and that obtaining a transaction-specific exception is not practical;

f. Transactions that constitute a primary vehicle to regulate, control, or enforce public health, safety, security, or environmental quality rather than convey assistance for operating programs to oversee such programs generally; and

g. Incidental benefits enjoyed by the public at large from ALOB transactions and awards that are not specifically targeted or reserved to one entity or class of entities based on a bid, application, proposal, or other competition from the ultimate beneficiary (e.g., use of postal services, public roads and transportation, federal insurance on bank deposits, etc.).

405 Transaction-Specific Exceptions. Notwithstanding the prohibition on award of, and participation in, any covered transaction set forth under the general prohibitions under sections 105, 110, 115, and 301 of this rule, a person who has been discretionarily debarred or suspended may be granted a transaction-specific exception by a federal award official responsible for the transaction to which the exception will apply. A procurement contractor, subcontractor, nonprocurement recipient, or participant may grant such an exception only with the consent of the federal awarding official. In every instance in which an exception under this section is granted, the decision shall be in writing, stating the compelling reasons for granting the exception, the limitations, the award to which the exception applies, and the agency official who granted the exception. A copy of the exception shall be retained in the administrative contract, subcontract, or other transaction files of both the cognizant federal agency and the lower tier participants who will grant or approve the excepted transaction.

Sec. 500 System for Award Management (SAM)

501 Publication. The General Services Administration (GSA) shall main- tain a publicly available database of information containing the names and other information concerning debarred, suspended, voluntarily excluded persons, and those debarred by statue or executive order for use by federal award officials, contractors, subcontractors, and ALOB recipients and participants to enforce the prohibitions set forth under this rule. Such information shall be included in the GSA System for Award Management (SAM).

505 Agency Submissions. Executive branch departments and agencies shall enter the names and other information required by the GSA into the SAM within five working days of issuing a discretionary debarment or suspension order, or the effective date of a voluntary exclusion agreement. Departments and agencies responsible for administering mandatory debarment and suspension pursuant to a statute or executive order shall enter such information into the SAM database as soon as possible to effectively enforce the terms of those exclusions to the extent they apply to procurement and/ or nonprocurement transactions. Agencies also shall amend, update, and correct SAM entries in a timely manner to ensure accuracy and currency. If an SDO determines that a suspension, debarment, or voluntary exclusion he or she caused to be entered into the SAM was based on faulty, incomplete, or inaccurate information at the time of listing, the SDO may request that the GSA expunge the record from the SAM or SAM archive.

Sec. 600 Causes for Action

601 Causes for debarment or suspension. The SDO, after following the procedures set forth in this rule, may debar and/ or suspend any person when the SDO determines that the administrative record contains sufficient information to establish that the person has or may have:

a. Committed any criminal or civil offense, or other infraction indicative of a lack of business honesty, integrity, competency, or compliance;

b. Substantially failed to perform a material provision of a government funded or supported procurement or nonprocurement or lower tier transaction, or has a history of unsatisfactory performance of such transactions;

c. Failed to comply with laws, regulations, policies, or other provisions applicable to a government funded or supported procurement or nonprocurement transaction or lower tier transaction;

d. Violated labor, occupational health and safety, security, environmental, immigration, customs, drug, or human trafficking laws and regulations;

e. Failed to timely disclose to the inspector general and award official, credible evidence of information in accordance with the FAR Man- datory Disclosure Rule or the Nonprocurement Mandatory Disclosure Policy;

f. An outstanding tax delinquency in excess of $3,500 and in arrears on scheduled payment of such delinquency;

g. Been debarred or excluded by federal statute or executive order from receipt of government transaction(s) covered by, or enforceable pursuant to, this rule;

h. Caused, created, aided, supported, or deliberately failed to prevent, address, or correct any conduct, condition, or activity the nature of which constitutes a cause of action under this rule;

i. Violated a material term or condition of an administrative agreement issued pursuant to this rule; or

j. Engaged in any other conduct, condition, or activity so serious or compelling that it negatively reflects on one’s business honesty, integrity, competency, compliance, or security risk such as to render the person unsuitable for participation in federally funded or supported programs, transactions, or activities covered by this rule.

605 Factors Affecting SDO Decision. In making any decision regarding a discretionary debarment or suspension action authorized by this rule (including a decision about the appropriate period of debarment) the SDO may consider any mitigating or aggravating factors contained in the administrative record that impacts the seriousness of the cause for action and the threat potential to the government as a result of it. Such factors include, but are not limited to:

a. The actual or potential impact on government transactions as a result of the conduct, condition, or activity;

b. The frequency of incidents and/ or duration of the conduct, condition, or activity;

c. Whether the respondent’s conduct or activity reflects a pattern or history of the same or similar events or concerns;

d. Whether the respondent has been excluded or disqualified by any government agency from participation in procurement or nonprocurement transactions or activities for the same or similar conduct, conditions, or activities;

e. Whether the respondent has entered into an administrative agreement with any government agency that is not government-wide in effect but is based on the same or similar conduct, conditions, or activities as one or more of the causes for debarment set forth in this rule;

f. Whether and to what extent the respondent planned, initiated, carried out, tolerated, or enabled the conduct, condition, or activity giving rise to the cause for action;

g. Whether respondent has accepted responsibility for the conduct, condition, or activity and recognizes the seriousness of the matters giving rise to the cause for action;

h. Whether respondent has paid or agreed to pay all criminal, civil, and administrative liabilities or restitution for the conduct, condition, or activity, including any investigative or administrative costs incurred by the government;

i. Whether respondent has cooperated fully with government agencies during the investigation and any court or administrative action, including whether respondent disclosed all material information known to the respondent prior to or during the investigation;

j. Whether the conduct, condition, or activity giving rise to a cause for action was pervasive or limited within an organization as to the effect on its culture;

k. The positions occupied, or services provided, by the individuals involved in the conduct, condition, or activity giving rise to a cause for action;

l. Whether the organization’s management or the individual concerned took appropriate corrective action and whether management had ethics and compliance programs and internal controls to prevent, detect, and address the conduct, conditions, or activities that gave rise to a cause for action;

m. Whether the respondent voluntarily brought the conduct, condition, or activity to the attention of the appropriate management and/ or government agency and whether such disclosure occurred in a timely manner;

n. Whether the respondent fully investigated and/ or reflected upon the circumstances surrounding the conduct, condition, or activity, and if so, made the result of the investigation and/ or reflection available to the SDO;

o. Whether the respondent has implemented effective standards of conduct and internal controls sufficient to deter the conduct, condition, or activity from occurring in the future;

p. Whether respondent took appropriate disciplinary or other action in response to the conduct, condition, or activity, or was subject to significant disciplinary or other corrective action that is likely to prevent recurrence; and

q. Other factors that are appropriate to the circumstances of the particular case.

Sec. 700 Debarment

701 Government’s Burden. In establishing that a cause for discretionary debarment exists under section 601 of this rule, the SDO shall find that the administrative record contains sufficient information to prove the material elements of cause for action by a preponderance of the evidence. In evaluating the facts of record, the SDO shall give presumptive validity to any judgment issued by a U.S. trial court of competent jurisdiction concerning such facts. The SDO may also give presumptive validity to:

a. Facts determined in any other judicial, legislative, or administrative forum in which the person being proposed for debarment was provided notice and an opportunity to contest the matter in a fair and objective proceeding; or

b. Any document or other reliable communication in which the respondent has admitted, or accepted a statement of facts tantamount to admission, to the same material facts as are relevant to establishing the cause for debarment.

705 Respondent’s Burden. Once the SDO has provided information to establish that a cause for debarment exists, and/ or that the facts and conditions of record support the inclusion of any other person in the action through affiliation or imputation, it is the respondent’s burden to demonstrate its present responsibility and/ or the existence of any mitigating or other factors that should be considered in the SDO’s final decision.

710 Notice. If the SDO proposes to debar a person for a potential cause for action cited in subsections 601(a)–(j), or include other persons in the action by reason of affiliation or imputation, the SDO shall provide to such person(s) a written Notice of Proposed Debarment sent to the last known address of such person(s) as contained in the SDO’s administrative record. The notice shall recite the material facts, circumstances, causes for action, and or any other information upon which the proposed debarment is premised. The notice shall inform the potential respondent(s) of the procedures available under this rule to contest the proposed debarment and that failure to exercise the option to contest within thirty calendar days of the date of the notice may result in debarment as proposed. The notice shall also attach a copy of the administrative record or inform the respondent of how to obtain a copy of the administrative record. The notice may be sent via mail, email, facsimile, courier, or any other method of communication used in a business environment for which some form of proof of delivery may be obtained.

715 Opportunity to Contest. A respondent may elect to contest a proposal to debar issued pursuant to this rule by notifying the SDO in writing of the desire to contest the proposed debarment. The respondent may choose to contest a discretionary debarment action orally and/ or in writing, and may elect to do so through counsel or other representative. If electing to contest the proposed debarment, the respondent shall notify the SDO in writing of the name(s), address(es), and other contact information of any legal or other representative(s) authorized to act on respondent’s behalf in the debarment proceeding. The SDO shall make such arrangements as are administratively efficient for receipt of the respondent’s matters in opposition to the proposed debarment, including submission of written materials in advance of meeting to facilitate meaningful discussion of the relevant issues. The SDO may also require the respondent to identify all entities with which the respondent is affiliated.

720 Additional Fact Finding. If, after receiving respondent’s matters in opposition to debarment under section 715 of this rule, the SDO determines that material facts relevant to establishing a cause for debarment are in dispute, the SDO may refer the material fact to another official to conduct such proceedings as may be necessary to establish the material fact by a preponderance of the evidence standard. In conducting a fact finding proceeding under this section, the fact finder is not bound by formal rules of evidence or procedure. The fact finder shall employ such procedures to collect available information that are reasonable and fair in the context of a business proceeding and afford such weight to the information collected as is prudent under the circumstances. The fact-finding proceeding shall be conducted in a fair manner and the fact finder shall permit respondent to challenge any document, statement, or other information, or cross-examine any witnesses presented by the government. The fact finder shall prepare written findings and submit the same to the SDO to be included in the administrative record and considered by the SDO in rendering a debarment decision or making another disposition of the matter. The fact finder shall not make recommendations about the final disposition of the matter or render opinions about the present responsibility of the respondent unless specifically requested to do so by the SDO. However, the fact finder may provide observations to the SDO regarding the credibility of any person, document, or other information relevant to the specific facts submitted for fact finding by the SDO. The SDO may reject the findings of the fact finder if the SDO determines them to be arbitrary, capricious, or outside the scope of the fact finder’s review. Any comments concerning credibility of a witness or document or other information contained in the fact finder’s statement of findings shall be considered by the SDO as part of the total administrative record in the matter.

725 Determination. The administrative record shall close upon the SDO’s receipt of the respondent’s final submission of matters in opposition or, if additional fact finding is conducted under section 720, the SDO’s receipt of the fact finder’s written statement of facts, whichever is later. The SDO shall issue a written determination on the proposed debarment within thirty calendar days of closure of the administrative record, unless otherwise agreed to by the respondent. The SDO may extend time limit for making a debarment decision for good cause. The determination may be sent via mail, email, facsimile, courier, or any other method of communication used in a business environment for which some form of proof of delivery may be obtained.

Sec. 800 Suspension

801 Nature and Standard for Suspension. Suspension, like debarment, is a serious discretionary action that the SDO may take at any time he or she determines that the administrative record contains at least adequate evidence of a cause for action listed under section 701 of this rule, and that there is immediate need to protect important government interests pending completion of an investigation, legal proceedings, and/ or debarment proceedings.

805 Adequate Evidence. In assessing the adequacy of evidence to support suspension, the SDO shall exercise judgment about the quantity and quality of the information available given the circumstances at hand. In satisfying the evidentiary test for suspension, the SDO need not apply formal rules of evidence used in judicial proceedings. Rather, the SDO is to apply common sense business judgment in weighing the credibility of the information given its source and context, and any inferences that may reasonably be drawn therefrom. Issuance of an indictment, information or other charging document by a federal, state, or local prosecutor shall be deemed adequate for the purpose of meeting the evidentiary test for suspension. The filing of formal charges by a foreign government may be regarded by the SDO as adequate so long as the person to be suspended was provided notice and an opportunity to contest the proceeding in a fair and objective proceeding.

810 Immediate Need. Unlike the adequate evidence test, which addresses material facts related to a potential cause for action, the determination of immediate need is a conclusion reached by an SDO based on the totality of information available in the administrative record and the government’s potential business exposure when considered against other procurement and nonprocurement measures or remedies available to address that exposure. The mere fact that additional remedies exist to address the matter does not preclude the SDO from determining that there is immediate need to issue a suspension.

815 Time Limitation. A suspension imposed under this rule shall be for a temporary period not to exceed twelve months, unless legal or debarment proceedings have been initiated. This period may be extended for up to six additional months upon the SDO’s approval of a request from the U.S. Department of Justice or equivalent state prosecutor’s office advising that legal proceedings are imminent. In no event shall a suspension remain in effect beyond eighteen months unless legal proceedings have been initiated.

820 Notice. If the SDO suspends a person for a potential cause for action cited in subsections 601(a)–(j) or includes other persons in the action by reason of affiliation or imputation, the SDO shall provide to such person(s) a written Notice of Suspension sent to the last known address of such person(s) as contained in the SDO’s administrative record. The notice shall contain enough information to apprise the potential respondent(s) of the facts, circumstances, and bases for action upon which the suspension is predicated so that the respondent(s) may make a meaningful response in opposition to the suspension. However, in cases where the SDO determines, based on the Department of Justice, state, or local prosecutor’s advice, that subjecting material facts or other information to fact finding in a suspension proceeding could prejudice an ongoing investigation or legal proceeding, the SDO may conform the notice of suspension and any suspension proceedings to restrict access to sensitive information and preclude additional proceedings to determine material facts in dispute. In such cases, the SDO shall endeavor to carve out as much information as possible from the administrative record to include in the notice, and restrict fact finding in such manner as necessary to protect the integrity of the investigation and/ or legal proceeding(s). The notice shall inform the respondent(s) of the procedures available under this rule to contest the suspension, and that failure to exercise the option to contest within thirty calendar days of the date of the notice may result in continued suspension. The notice shall also inform the respondent of how to obtain a copy of the available information in the administrative record, in the event the respondent wishes to contest the suspension.

825 Opportunity to Contest. A respondent may elect to contest a suspension issued pursuant to this rule by notifying the SDO in writing of the intent to contest the suspension. The respondent may choose to contest a suspension orally and/ or in writing and may elect to do so through counsel or other representative. In electing to contest the suspension, the respondent shall notify the SDO, in writing, of the name, address, and other contact information of any legal or other representative(s) authorized to act on respondent’s behalf in the suspension proceeding. The SDO shall make such arrangements as are administratively efficient for receipt of the respondent’s matters in opposition to suspension, including submission of written materials in advance of meeting to facilitate meaningful discussion of the relevant issues. The SDO may also require the respondent to identify all entities with which the respondent is affiliated.

830 Additional Fact Finding. If, after receiving respondent’s matters in opposition to suspension under section 825 of this rule, the SDO determines that material facts needed to sustain the adequacy of evidence in sup- port of suspension are in dispute, the SDO may refer the material fact(s) to another official to conduct such proceedings as may be necessary to establish the material fact by the adequate evidence standard. In conducting a fact finding proceeding under this section, the fact finder is not bound by formal rules of evidence or procedure. The fact finder shall employ such procedures to collect available information that are reasonable and fair in the context of a business proceeding and afford such weight to the information collected as is prudent under the circumstances. The fact finding proceeding shall be conducted in a fair manner and, in the ordinary case, the fact finder shall permit respondent to challenge any document, statement, or other information, or cross-examine any witnesses presented by the government, unless restricted by the SDO upon advice from the Department of Justice, a state prosecutor, or local prosecutor that such proceedings could prejudice an ongoing investigation or legal proceeding. The fact finder shall prepare written findings and submit the same to the SDO to be included in the administrative record and considered by the SDO in rendering a final suspension decision or making another disposition of the matter. The fact finder shall not make recommendations about the final disposition of the matter or render opinions about the present responsibility of the respondent unless specifically requested to do so by the SDO. However, the fact finder may provide observations to the SDO regarding the credibility of any person, document, or other information relevant to the specific facts submitted for fact finding by the SDO. The SDO may reject the findings of the fact finder if the SDO determines them to be arbitrary, capricious, or outside the scope of the fact finder’s review. Any comments concerning credibility of a witness, or document or other information contained in the fact finder’s statement of findings shall be considered by the SDO as part of the total administrative record in the matter.

835 Determination. The administrative record shall close upon the SDO’s receipt of the respondent’s final submission of matters in opposition or, if additional fact finding is conducted under section 830, the SDO’s receipt of the fact finder’s written findings of fact, whichever is later. The SDO shall issue a written determination on the continuation of suspension within thirty calendar days of closure of the administrative record, unless otherwise agreed to by the respondent. The SDO may extend the time limit for making a suspension decision for good cause. The determination may be sent via mail, email, facsimile, courier, or any other method of communication used in a business environment for which some form of proof of delivery may be obtained.

Sec. 900 Definitions

Abstention. An agreement to voluntarily withdraw from participation in one or more activities or transactions that is lesser in scope than that covered by debarment, suspension, or voluntary exclusion under this rule. Abstention is appropriate when the SDO determines that the government’s exposure to risk is limited by the nature of the facts and/ or circumstances such that an agreement by the person to voluntarily refrain from certain activities or transactions (with or without other conditions) is sufficient to protect the interests of the government without resorting to enforcement through the SAM.

Adequate Evidence. Adequate evidence means information sufficient to sup- port the reasonable belief that a particular act or omission has occurred.

Administrative Agreement. The disposition of a debarment and/ or suspension matter by an SDO under the terms of a written document setting forth sufficient information about a basis for concern, the terms and conditions of the disposition, and the means of oversight and enforcement needed to ensure that any agreed-upon exclusions or corrective actions are taken, or that present responsibility is established and/ or maintained.

Administrative Record. The written record of information provided to the SDO to refer, request, or otherwise communicate about a potential suspension and/ or debarment matter. It includes any findings of fact or information that impacts the SDO’s evaluation and/ or decision about the matter. Sensitive or privileged information deemed not subject to public disclosure for any reason should be so marked and isolated within the administrative record.

Affiliate. Persons are affiliates of each other if, directly or indirectly, either one controls or has the power to control the other or a third person controls or has the power to control both. Indicia of control include, but are not limited to: (1) interlocking management or ownership; (2) identity of interests among family members; (3) shared facilities and equipment; (4) common use of employees; or (5) a business entity which has been organized following the exclusion of a person which has the same or similar management, ownership, or principal employees as the excluded person.

Agency. Agency means any U.S. executive department, military department, defense agency, or any other agency of the executive branch. Other agencies, commissions, and quasi-governmental legislative and judicial units of government may become covered under this USDR by adopting coverage by regulation or policy as appropriate.

Agent or Representative. Any person who acts on behalf of, or who is authorized to negotiate transactions, apply for or commit to a procurement or nonprocurement transaction, submit or certify claims, and otherwise communicate with the government concerning a covered transaction.

Civil Judgment. The disposition of a civil action by any court of competent jurisdiction, whether by verdict, decision, settlement, stipulation, other disposition which creates a civil liability for the complained of wrongful acts, or a final determination of liability under the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801–3812 (2012)).

Conviction. Any judgment or criminal disposition of a case entered by a court of competent jurisdiction, whether entered upon a verdict or plea including a plea of nolo contendere or Alford plea, or an alternative disposition that avoids technical entry of a judgment with conditions imposed on a defendant subject to the supervision and approval of the court.

Covered Transaction. Any transaction or relationship with, through or on behalf of a federal department or agency program, function, or activity that is to be furnished, in whole or in part, with federal tax revenue regardless of whether it is accomplished by a procurement contract, subcontract or delivery order, or through a nonprocurement assistance, loan, guarantee, or other benefit vehicle.

Indictment. Official charges filed alleging a criminal offense. A presentment, information, or other filing by a competent authority charging a criminal offense shall be given the same effect as an indictment.

Immediate Need. One of two elements required to be found by an SDO to support an order of suspension. The judgment that immediate action is necessary to protect the interests of the government is a subjective one based on a weighing of the known facts (or reasonable inferences derived therefrom) against an articulable risk to taxpayer interests that suggests business imprudence in delaying action until conclusion of an investigation, legal, debarment, or other official proceeding to fully develop the facts. In determining immediate need, the SDO may consider whether additional information is reasonably available to the government and whether the information sought is readily and economically accessible without placing government funds, programs, public health, safety, or national security at material risk in the interim.

Legal Proceeding. Any criminal civil judicial proceeding, including a proceeding under the Program Fraud Civil Remedies Act (31 U.S.C. 3801– 3812), to which the federal government, a state or local government, or quasigovernmental authority is a party. The term also includes appeals from those proceedings.

Nonprocurement Transaction. The entire range of federal assistance, loans, and benefits (ALOBs) including grants, loans, guarantees, licenses, permits, leases, subsidies, auction or timber sales, technical assistance, etc., that may be awarded, conveyed, or otherwise furnished to support a public program, project, or activity governed by rules, regulations, and policies other than the Federal Acquisition Regulation (FAR).

Person. Any entity having legal status including individuals, business entities, non-profit, governmental, or other organizations or associations however formed.

Preponderance of the Evidence. Proof by information that, compared with information opposing it, leads to the conclusion that the fact at issue is more probably true than not.

Present Responsibility or Presently Responsible. A contractor, subcontractor, ALOB recipient or participant (including any entity or individual who may act as an agent, representative, surety, or principal on behalf of another) with the current knowledge, capability, capacity, integrity, and record of performance, to manufacture, acquire, produce, deliver, or otherwise provide products or services in covered transactions in an ethical, conforming, and compliant manner.

Principal. Active owner of any business entity, or a passive owner of any business entity holding a majority or plurality of the total equity interest, an officer, director, agent, representative, surety, supervisor, manager, or key employee (including professional and technical employees) whose duties can substantially influence the outcome of an activity required to perform a covered transaction.

Procurement Transaction. Transactions of a procurement nature that are governed by the Federal Acquisition Regulation (FAR) at title 48 of the Code of Federal Regulations or any regulatory supplement to the FAR.

Respondent. Any person suspended or proposed for debarment by the SDO or any person with which the SDO executes an administrative agreement.

Voluntary Exclusion. A restriction, voluntarily accepted by a person, on that person’s eligibility to participate in one or more covered transactions on a government-wide basis, but which may be narrower in scope than that of a suspension or debarment. Voluntary exclusions are enforced through an entry in the SAM under a separate category from a suspension or debarment.