Transportation Acquisition Manual   (Archived Version : Revised 8/2006)

CHAPTER 1209 - CONTRACTOR QUALIFICATIONS
SUBCHAPTER 1209.4--DEBARMENT, SUSPENSION, AND INELIGIBILITY      

Debarment, suspension, and other actions which render a contractor ineligible to receive contract awards is a serious matter which deserves high level attention since there is an impact not only on DOT, but the entire Federal Government. The DOT procedures to implement the debarment and suspension requirements of (FAR) 48 C.F.R. Subpart 9.4 are set forth in this subchapter.

"Debarring official"—

(b) The HCA is authorized to impose debarments.

"Suspending official" –

The HCA is authorized to impose suspensions.

“Unfair trade practices” —

(3) The HCA is authorized to determine that a contractor knowingly made a false statement regarding a material element of a certification concerning the foreign content of an item of supply.

(c)(6) The HCA shall maintain records regarding debarment and suspension actions for 3 years after a contractor has been excluded from procurement programs.

(c)(7) The HCA shall establish any internal requirements necessary to ensure compliance with (FAR) 48 C.F.R. 9.404(c)(5)).

Executive Order 13224 provides a means to disrupt the financial support network for terrorists and terrorist organizations by blocking the assets of certain foreign individuals and entities which are listed on the Department of Treasury's Office of Foreign Assets Controls (OFAC) website.   Contracting officers shall not award any contract to any listed individual or organization.  The OFAC listing is also available on the Excluded Parties List System at http://www.epls.gov and is to be reviewed when checking for those debarred, suspended, or proposed for debarment in accordance with FAR 9.404. 

(a) The HCA is authorized to make a written determination of compelling reasons to solicit offers from, award contracts to, or consent to subcontract with contractors debarred, suspended, or proposed for debarment.

(d) The HCA is authorized to determine that a bid or offer should be considered from a contractor whose name or company is included on the listing.

The HCA is authorized to make a written determination of compelling reasons for continuing contracts and placing orders described in (FAR) 48 C.F.R. 9.405-1 after a contractor is debarred, suspended, or proposed for debarment.

The HCA is authorized to allow contracting officers to consent to subcontracts with contractors debarred, suspended, or proposed for debarment.

(c) The HCA is authorized to continue business dealings between the agency and a contractor that is debarred or proposed for debarment. However, see TAM 1223.506(e) regarding waivers to debarment or suspension determinations for actions under (FAR) 48 C.F.R. Subpart 23.5, Drug-Free Workplace.

(a) Investigation and referral. The Chief of the Contracting Office (COCO) shall promptly report a proposed debarment action directly to the HCA unless otherwise authorized by OA procedures. The report shall be in writing and coordinated with OA legal counsel before the report is signed by the COCO and sent to the HCA. The report shall contain the following information:

(1) The DOT official OA code to identify the OA taking action is as follows:  DOT (general) (DOT-OST); Federal Aviation Administration (DOT-FAA); Federal Highway Administration (DOT-FHWA); Federal Motor Carrier Safety Administration (DOT-FMCSA); Federal Railroad Administration (DOT-FRA); Federal Transit Administration (DOT-FTA); Maritime Administration (DOT-MARAD); National Highway Traffic Safety Administration (DOT-NHTSA); Pipeline and Hazardous Materials Safety Administration (DOT-PHMSA); Research and Innovative Technology Administration (DOT-RITA); and Saint Lawrence Development Corporation (DOT-SLSDC).

(2) Name, address and telephone number for the point of contact for the activity making the report;

(3) Name and address of the contractor;

(4) Names and addresses of the members of the board, principal officers, partners, owners, and managers;

(5) Names and addresses of all known affiliates, subsidiaries, or parent firms, and the nature of the business relationship;

(6) For each contract affected by the conduct being reported--

(i) The contract number;

(ii) Description of supplies or services;

(iii) The amount;

(iv) The percentage of completion;

(v) The amount paid to the contractor;

(vi) Whether the contract is assigned under the Assignment of Claims Act and, if so, to whom; and

(vii) The amount due to the contractor.

(7) For any other contracts outstanding with the contractor or any of its affiliates--

(i) The contractor number(s);

(ii) The amount(s);

(iii) The amounts paid to the contractor;

(iv) Whether the contract(s) is assigned under the Assignment of Claims Act and, if so, to whom; and

(v) The amount(s) due the contractor;

(8) A complete summary of all pertinent evidence and the status of any legal proceedings involving the contractor;

(9) An estimate of any damages sustained by the Government as a result of the contractor's action (explain how the estimate was calculated);

(10) The comments and recommendations of the contracting officer and each higher level contracting review authority regarding--

(i) Whether to suspend or debar the contractor;

(ii) Whether to apply limitations to the suspension or debarment;

(iii) The period of any recommended debarment; and

(iv) Whether to continue any current contracts with the contractor (explain why a recommendation regarding current contract is not included);

(11) When appropriate, as an enclosure to the report--

(i) A copy or extracts of each pertinent contract;

(ii) Witness statements or affidavits;

(iii) Copies of investigative reports;

(iv) Certified copies of indictments, judgments, and sentencing actions; and

(v) Any other appropriate exhibits or documents.

(b) Decisionmaking process. After receipt of the COCO report, the HCA may request from interested parties (including the contractor if deemed appropriate) a meeting or additional supporting information to assist in the debarment decision.

(c) Notice of proposal to debar.  After reviewing the COCO’s report, and any additional information received in accordance with paragraph (b) above, the HCA shall prepare and coordinate with the OA legal counsel, a written notice of proposed debarment.

(d) Debarring official's decision. When the contractor's submission raises a genuine dispute over facts material to the proposed debarment, the HCA may request the DOT Board of Contract Appeals (BCA) to conduct fact finding and provide a report containing the results of the fact finding.

(e) Notice of debarring official's decision.  The HCA shall notify the COCO of the decision whether or not to impose debarment.  The HCA shall forward the original signed decision to the COCO for inclusion in the contract file, and provide copies of the decision to the following offices:

1. GSA in accordance with (FAR) 48 C.F.R. 9.404(c);
   
   
2. SPE within 2 working days after being sent to GSA; and
   
   
3. OA Legal Counsel.

(d) The HCA is authorized to continue business dealings between the agency and a contractor that is suspended.  However, see TAM 1223.506(e) regarding waivers to debarment or suspension determinations for actions under (FAR) 48 C.F.R. Subpart 23.5, Drug-Free Workplace.

(a) Investigation and referral. The COCO shall promptly report a proposed suspension action directly to the HCA unless otherwise authorized by OA procedures. The report shall be in writing and coordinated with OA legal counsel before the report is signed by the COCO and sent to the HCA. The report shall contain the information listed in TAM 1209.406-3.

(b) Decisionmaking process. After receipt of the COCO report, the HCA may request from interested parties (including the contractor if deemed appropriate) a meeting or additional supporting information to assist in the suspension decision.

(c) Notice of suspension.  After reviewing the COCO ’s report, and any additional information received in accordance with paragraph (b) above, the HCA shall prepare and coordinate with the OA legal counsel, a written notice of suspension. 

(d) Suspending official's decision. When the contractor's submission raises a genuine dispute over facts material to the proposed suspension, the HCA may request the DOTBCA to conduct fact finding and provide a report containing the results of the fact finding. The HCA shall notify the COCO of the decision whether or not to impose a suspension. The HCA shall then forward the original signed decision to the COCO for inclusion in the contract file. The HCA shall provide copies of the decision to the following offices:

1. GSA in accordance with (FAR) 48 C.F.R. 9.404(c);
   
2. SPE within 2 working days after being sent to GSA; and
   
3. OA Legal Counsel.

(a)(2) When the offeror indicates the existence of an indictment, charge, conviction, or civil judgment, the contracting officer shall obtain from the offeror, the information deemed necessary concerning the issues and seek the advice of legal counsel on the affirmative statement(s). Prior to proceeding with the contract award, the contracting officer shall notify the HCA of the facts, and submit a written responsibility determination.