509.206-2 Solicitation provisions and contract clauses.

The contracting officer shall insert the clause at 552.209-73, Product Removal from Qualified Products List, in solicitations and contracts, when qualified products are to be acquired. The clause supplements the clauses at FAR 52.209-1 and 52.209-2.

Subpart 509.3-First Article Testing and Approval

509.302 General.

When first article testing and approval is appropriate for a procurement pursuant to FAR Subpart 9.3, the general policy of the Federal Supply Service (FSS) is to require:

(a) The contractor to perform required testing, unless after coordinating with the technical specialist and Quality Assurance Division (FQA) in the Office of Quality and Contract Administration the contracting officer determines that Government testing is in the best interest of the Government;

(b) That the first article be produced at the same facility where production quantities will be produced; and

(c) That the first article serve as the manufacturing standard.

509.303 Use.

The contracting officer shall coordinate all determinations to require first article testing and approval with the technical specialist and FQA. At the time of coordination, the contracting officer should obtain the following information from the technical specialist and FQA:

(a) The test requirements for inclusion in the solicitation as outlined in FAR 9.306 (a) and (b).

(b) Advice on whether the contractor or the Government should perform required testing.

(c) The information necessary to complete the fill-in requirements of FAR clauses 52.209-3 First Article Approval- Contractor Testing [and alternates], and 52.209-4 First Article Approval-Government Testing [and

alternates].

509.306 Solicitation requirements.

The contracting officer shall insert the provision at 552.209–74, Waiver of First Article Testing and Approval Requirement, in solicitations that require first article testing and approval. Any determinations to waive first article testing under FAR 9.306(c) must be approved before award by the technical specialist and the Quality Assurance Division (FQA). The first article tests to be performed by the contractor or the Government must be set forth in the solicitation.

509.308 Contract clauses.

509.308-1 Testing performed by the contractor.

In accordance with FAR 9.308-1, the FSS contracting officers shall use the clause at FAR 52.209-3 with its Alternate I and the supplemental clause at 552.209-75, Supplemental Requirements for First Article Approval-Contractor Testing.

509.308-2 Testing performed by the Gov

ernment.

In accordance with FAR 9.308-2, FSS contracting officers shall use the clause at FAR 52.209-4 with its Alternate I and the supplemental clause at 552.209-76, Supplemental Requirements for First Article Approval-Government Testing.

Subpart 509.4-Debarment,
Suspension, and Ineligibility

509.401 Applicability.

This subpart applies to acquisitions of personal property, nonpersonal services (including construction), space in buildings, transportation services (FPMR Subpart 101-40.4), contracts for disposal of personal property (FPMR Subpart 101-45.6), and to covered transactions as defined at GSPMR 105-68.110(a).

509.403 Definitions.

Debarring official and suspending official mean the Associate Administrator for Acquisition Policy or a designee.

Fact-finding official means the Chairman of the Debarment and Sus

pension Board within the GSA Board of Contract Appeals or a designee.

Notice means a letter sent by certified mail, return receipt requested, to the last known address of a party, its counsel, or agent for service of process. In the case of a business, such notice may be sent to any partner, principal officer, director, owner or coowner, or joint venturer. If no return receipt is received within 10 calendar days of mailing, receipt will then be presumed.

509.405 Effect of listing.

(a) Before initiating a pre-award survey or any procurement or disposal action, the contracting officer shall review the Lists of Parties Excluded from Federal Procurement or Nonprocurement Programs. Any contractor listed in the section entitled "Parties Excluded from Procurement Programs" must receive the treatment specified therein. The contracting officer shall also review the "Parties Excluded from Nonprocurement Programs" section of the list and, if appropriate, contact the listing agency for further information in order to determine whether the listed party is responsible.

(b) Bids received from any contractor listed in the "Parties Excluded from Procurement Programs" section will be opened, entered on the Abstract of Bids, and rejected, unless the debarring or suspending official determines in writing that there is a compelling reason to consider the bid. Proposals, quotations or offers received from any such contractor must not be evaluated for award or included in the competitive range, and discussions must not be conducted with such offeror, unless the debarring or suspending official determines, in writing, that there is a compelling reason to do so. [55 FR 37880, Sept. 14, 1990]

509.405-1 Continuation of current contracts.

(a) Termination of current contracts should be considered under the circumstances set forth in (a) (1) and (2) of this section.

(1) When the circumstances giving rise to the debarment or suspension also constitute a default in the con

tractor's performance of the contract, termination for default under the contract's "Default" clause is appropriate.

(2) If the contractor presents a significant risk to the Government in completing a current contract, the contracting officer shall determine whether termination for convenience or cancellation under appropriate contract provisions is in the Government's best interest. In making this determination, the contracting officer shall consult with counsel and should consider the following factors:

(i) Seriousness of the cause for debarment or suspension;

(ii) Extent of contract performance; (iii) Potential costs of termination and reprocurement;

(iv) Urgency of the requirement and the impact of the delay of reprocurement;

(v) Availability of other safeguards to protect the Government's interest until completion of the contract.

(b) The debarring or suspending official shall make determinations under FAR 9.405-1(b).

(c) The contracting officer should consult with legal counsel regarding the availability of remedies under FAR Subparts 3.2 and 3.7.

General will refer the matter to the debarring official.

(2) At a minimum, referrals for consideration of debarment action should include:

(i) The recommendation and rationale for the referral;

(ii) A statement of facts;

(iii) Copies of documentary evidence and a list of all witnesses, including addresses and telephone numbers, together with a statement concerning their availability to appear at a factfinding proceeding and the subject matter of their testimony;

(iv) A list of parties including the contractor, principals, and affiliates (including last known home and business addresses, zip codes, and DUNS Number);

(v) GSA's acquisition history with the contractor, including recent experience under contracts and copies of the pertinent contracts;

(vi) A list of any known active or potential criminal investigations, criminal or civil proceedings, or administrative claims before the Board of Contract Appeals; and

(vii) A statement regarding the impact of the debarment action on GSA programs. This statement is not required for referrals by the Inspector General.

(3) Referrals may be returned to the originator for further information or development.

(b) Decisionmaking process. (1) Upon receipt of a referral, the debarring official will decide whether to initiate debarment action, after coordinating the matter with assigned legal counsel.

(2) Contracting activities will be notified of proposed debarments.

(3) Where a determination is made not to initiate action, notice will be given to the agency official who made the referral.

(4) If a response to the notice of proposed debarment is not received by the debarring official within 30 calendar days of a party's receipt of the notice, the debarment becomes final.

(5) If the party desires to present information and arguments in person to the debarring official, an oral presentation will be held within 20 calendar days of receipt of the request, unless a

longer period of time is requested by the party. The oral presentation will be informally conducted and a transcript need not be made. The party may supplement the oral presentation with written information and arguments.

(6) In actions not based on a conviction or judgment, the party may request a fact-finding hearing to resolve a genuine dispute of material fact. The party shall identify the material facts in dispute and the basis for disputing the facts. If the debarring official determines that there is a genuine dispute of material fact, the debarring official shall refer the matter to the fact-finding official. The fact-finding official will schedule a hearing within 20 calendar days of receipt of the debarring official's request. Extensions may be granted for good cause upon the request of the party or the agency. (7) The purpose of a fact-finding hearing is to:

(i) Afford the affected party the opportunity to dispute material facts relating to the proposed debarment through the submission of oral and written evidence;

(ii) Resolve facts in dispute and provide the debarring official with written findings of fact based on a preponderance of evidence; and

(iii) Provide the debarring official with a determination as to whether a cause for debarment exists, based on facts as found.

(8) Hearings will be conducted by the fact-finding official in accordance with rules consistent with FAR 9.4063(b)(2) promulgated by that official.

(9) The fact-finding official will notify the affected parties of the schedule for the hearing. The factfinding official shall deliver written findings of fact to the debarring official (together with a transcription of the proceeding, if made) within 20 calendar days after the hearing record closes.

[54 FR 26507, June 23, 1989, as amended at 56 FR 47005, Sept. 17, 1991]

(a) Investigation and referral. The procedures in 509.406–3(a) apply to referrals for suspension.

(b) Decisionmaking process. (1) Upon receipt of a referral, the suspending official will decide whether to suspend, after coordinating the matter with assigned legal counsel.

(2) In cases not based on an indictment, the suspending official must, through OIG, coordinate with the Department of Justice, or state prosecutorial authority. On the basis of advice received, the suspending official shall determine whether substantial interests of the Federal or a state government would be impaired in fact-finding.

(3) A response to a suspension notice must be received by the suspending official within 30 calendar days of receipt by the parties to be considered.

(4) When requested, an oral presentation before the suspending official will be conduted as outlined in 509.406-3(b)(5).

(5) Fact-finding hearings will not be conducted in actions based on indictments, or in cases in which the suspending official determines pursuant to FAR 9.407-3(b)(2) not to refer a matter to the fact-finding official. A party may request a fact-finding hearing to resolve genuine disputes of material fact in other cases. The party shall identify the material facts in dispute and the basis for disputing the facts. If the suspending official determines that there is a genuine dispute of material fact, the suspending official shall refer the matter to the factfinding official. The fact-finding official will schedule a hearing within 20 calendar days of receipt of the suspending official's request. Extensions may be requested by the party or the agency.

(6) The purpose of a fact-finding hearing is to:

(i) Afford the affected party the opportunity to dispute facts relating to the suspension action through the

Dual systems mean the use of both inch-pound and metric systems. For example, an item is designed, produced, and described in inch-pound values with soft metric values also shown for information or comparison purposes.

Hybrid systems mean the use of both inch-pound and hard metric values in specifications, standards, supplies, and services; e.g., an engine with internal parts in metric dimensions and external fittings or attachments in inchpound dimensions.

Metric system means the International System of Units established by the General Conference of Weights and Measures in 1960. The units are listed in Federal Standard 376A, “Preferred Metric Units for General Use by the Federal Government."

Soft metric means the result of mathematical conversion of inchpound measurements to metric equivalents in specifications, standards, supplies, and services. The physical dimensions are not changed.

Specification Manager means an official of the Federal Supply Service office responsible for Federal or Interim Federal Specifications (or the program office for other than Federal specifications) and for reviewing requests for a deviation from a specification.

[56 FR 2864, Jan. 25, 1991]

510.002 Policy.

Consistent with the policy expressed in FAR 10.002 (c) and GSA Order ADM 8000.1A, solicitations must include specifications and purchase descriptions stated in metric units of measurement whenever metric is the accepted industry system. If metric is not the accepted industry system, the head of Central Office Services responsible for nationwide programs shall ensure that policies promoting

and encouraging the use of soft metric, hybrid, or dual systems are developed, except when to do so would be detrimental to the program mission. Whenever possible, commercially developed metric specifications and internationally or domestically developed voluntary standards using metric measurements must be adopted. While an industry is in transition to metric, solicitations must include specifications and purchase descriptions stated in soft metric, hybrid, or dual systems, except when impractical or inefficient. [56 FR 33721, July 23, 1991]

510.004 Selecting specifications or descriptions for use.

(a) Brand name products or equal— (1) Citing brand name products. Brand name or equal purchase descriptions must cite all brand name products known to be acceptable and of current manufacture. The purchase description must be amended for future acquisitions to add additional acceptable brand name products or to delete brand names no longer applicable. Information on additions and deletions shall be immediately communicated to the specification manager.

(2) Specifying essential characteristics. Brand name or equal purchase descriptions must specify each physical or functional characteristic essential to the intended use of the product or a defective solicitation necessitating the resolicitation of the requirement may result. (See 510.004-71.) Characteristics that cannot be shown to materially affect the intended end use, and which unnecessarily restrict competition, must be avoided. When describing essential characteristics, permissible tolerances should be indicated.

(b) Limitations on use of brand name or equal purchase descriptions. (1) The use of brand name or equal purchase descriptions in solicitations is intended to encourage the offering of products that are equal in all material respects to brand name products cited in such descriptions. Identification by brand name does not indicate a preference for the products mentioned, but indicates the quality and salient characteristics of products that