cated successful bidder or proposed contractor has furnished a representation (negative or affirmative) and agreement as prescribed in § 18-1.506.

(a) If the indicated successful bidder or proposed contractor makes such representation in the negative, such representation may be accepted and award made or offer accepted in accordance with the procedures set forth in this chapter.

(b) If the indicated successful bidder or proposed contractor makes such representation in the affirmative, a completed Standard Form 119 shall be requested from the bidder or proposed contractor. In the case of formal advertising, the making of an award in accordance with the procedures set forth in this chapter need not be delayed pend- ing receipt of the form. In the case of negotiation, if the proposed contractor makes such representation in the affirmative, he shall be required to file a completed Standard Form 119 prior to acceptance of the offer or execution of the contract, unless the Director of Procurement considers that the interest of the Government will be prejudiced by the suspension of negotiations pending receipt and consideration of an executed Standard Form 119.

(c) If the indicated successful bidder or proposed contractor fails to furnish the representation and agreement as set forth in § 18-1.506, such failure shall be considered a minor informality and, prior to award, such bidder or proposed contractor shall be afforded a further opportunity to furnish such representation and agreement. A refusal or failure to furnish such representation and agreement after such opportunity has been afforded shall require rejection of the bid or offer.

§ 18-1.508-1 Failure or refusal to furnish Standard Form 119.

If the otherwise successful bidder or contractor, upon request, fails or refuses to furnish a completed Standard Form 119, or a statement in lieu thereof as Oprovided in § 18–1.507–1, one of the following actions shall be taken:

(a) If an award has not been made or an offer accepted, the matter shall be referred to the procurement officer for La determination as to whether the bid Cor offer should be rejected; or

(b) If the contract has been awarded or offer accepted, the matter shall be referred to the Director of Procurement, supported by a statement and summary of all pertinent facts and appropriate recommendations, for a determination as to what actions should be taken, such as making an independent investigation or considering the eligibility of the contractor as a future contractor.

§ 18-1.508-2 Misrepresentations or violations of the covenant against contingent fees.

In case of misrepresentation, or violation or breach of the covenant against contingent fees, or some other relevant impropriety, one or more of the following actions shall be taken:

(a) If an award has not been made or an offer accepted, the matter shall be referred to the procurement officer for a determination as to whether the bid or offer should be rejected; or

(b) If an award has been made or an offer accepted, the matter shall be referred to the Director of Procurement, supported by a statement and summary of all pertinent facts and appropriate recommendations, for a determination as to what actions should be taken, such

as

(1) Enforcing the covenant in accordance with its terms; that is, as the best interest of the Government may appear, annul the contract without liability or recover the full amount of the fee involved;

(2) Considering the eligibility of the contractor as a future contractor; or (3) Referring the case to the Department of Justice.

§ 18-1.509 Preservation of records.

Contracting officers shall preserve, for enforcement or report purposes, at least one executed copy of any representation and completed Standard Form 119, or statement in lieu of the form, with a record of any other pertinent data, including data as to action taken.

§ 18-1.550 Responsibility for protecting information contained in completed Standard Form 119.

Information contained in completed Standard Form 119 shall be considered private and personal. Personnel having access to this information shall not dis

cuss or transmit the information gained by them to any other person not entitled or authorized to have access to such information.

Subpart 18-1.6—Debarred, Ineligible, and Suspended Bidders

§ 18-1.600 Scope of subpart and definitions.

§ 18-1.600-1 Scope.

This subpart prescribes policies and procedures relating to the debarment of bidders for any cause, ineligibility of bidders under section 1(a) of the WalshHealey Public Contracts Act (41 U.S.C. 35(a)), and the suspension of bidders for alleged fraud or other criminal conduct. § 18-1.600-2 Definition of affiliates.

Business concerns are considered affiliates of each other when, either directly or indirectly:

(a) One concern or individual controls or has the power to control another;

or

(b) A third party controls or has the power to control both.

In determining whether concerns are independently owned and operated and whether or not affiliation exists, consideration is given to all appropriate factors, including common ownership, common management, and contractual relationships.

§ 18-1.601 Establishment and maintenance of a list of firms or individuals debarred or ineligible.

§ 18-1.601-1 General.

NASA shall establish and maintain a list of firms and individuals whom it has debarred or suspended, to whom contract awards of any character, including sales, will not be made, and from whom bids or prosposals will not be solicited as provided in this subpart. This list will supplement the Joint Consolidated List referred to in § 18-1.601-3. The Office of Procurement (Code KDP) is responsible for the establishment and maintenance of the NASA list and will issue copies of this list to each procurement office. § 18-1.601-2 Information contained in

NASA list. The NASA list shall show as a minimum the following information:

(a) The names (in alphabetical order) of those firms or individuals debarred, ineligible, or suspended with

appropriate cross-references where more than one name is involved in a single action;

(b) The basis of authority for each action;

(c) The extent of restrictions imposed; and

(d) The termination date for each debarred listing.

§ 18-1.601-3 Joint consolidated list.

The Department of the Army is responsible, as prescribed in 32 CFR 1.601-3, for the issuance of a Joint Consolidated List of firms and individuals ineligible, disqualified, debarred, suspended, or otherwise prohibited from entering into contractual relationship with the departments of the Army, the Navy, and the Air Force. For the purposes of economy and uniformity, since the Military Departments contract essentially with the same segments of industry as NASA, the Joint Consolidated List is hereby adopted by NASA for its use, as supplemented by the list established and maintained by NASA. The Joint Consolidated List contains, as a minimum, the same type of information included in the NASA list (see § 18-1.601-2). Arrangements have been made with the Department of the Army to furnish NASA Headquarters with copies of the Joint Consolidated List. The Office of Procurement (Code KDP) will issue copies of this list to each procurement office.

§ 18-1.601-4 Protection of lists.

The NASA list shall be marked with and treated in accordance with the protective term, "Limit Access to Government Personnel," unless details are included which require a security classification. The Joint Consolidated List shall be treated in accordance with the protective term set forth thereon and shall be protected to prevent inspection of the contents by anyone other than Government personnel required to have access thereto. All correspondence relating to the NASA list and the Joint Consolidated List shall be marked and treated in accordance with the protective term, "Limit Access to Government Personnel," unless details are included which require a security classification. except that correspondence furnished to firms or individuals in accordance with § 18-1.604-4 or § 18-1.605-6 will not include any protective markings.

§ 18-1.601-50 Authority for making determinations.

(a) The Administrator or his authorIized representative shall, upon appropriate recommendation, determine whether I a firm or individual will be administratively debarred or suspended and inI cluded in the NASA list. The Administrator, by NASA Management Instruction 5101.11, has designated the Director of Procurement as an authorized representative of the Administrator for the purpose of making final determinations in respect to NASA debarments made pursuant to §§ 18-1.603 (a) (1) (iii) and 18-1.604-1(b) and suspensions made pursuant to §§ 18-1.603 (a) (4) and 181.605-2(b), including modifications and Eremovals thereto. The debarment or suspension of firms or individuals is an administrative determination within the E discretion of the Administrator or his authorized representative and each case will be decided upon its individual merits. The placement of a firm or individual on the list will be for the purpose of protecting the interest of the Government and not for punishment.

(1) Type A includes debarments in any of the following categories:

(i) Those listed by the Comptroller General pursuant to section 3 of the Walsh-Healey Public Contracts Act (41 U.S.C. 37) for violating the requirements of that Act;

(ii) Those listed by the Comptroller General pursuant to section 3 of the Davis-Bacon Act (40 U.S.C. 276a-2(a)) for violating the requirements of that Act; and

(iii) Those whom the Administrator or his authorized representative has determined to debar for any of the causes and under all of the conditions set forth in § 18-1.604.

Bids or proposals shall not be solicited from, nor invitations for bids or requests for proposals furnished to, nor contracts awarded to, firms or individuals who are listed as Type A and who are debarred because of Walsh-Healey or Davis-Bacon violations (subdivisions (i) and (ii) of this subparagraph). The same rules apply with respect to Type A listings within subdivision (iii) of this subparagraph, except as set forth in paragraph (d) of this section, or unless the listing indicates that the debarment is not to apply to procurement contracts or sales contracts (see § 18-1.606).

(2) Type B includes firms or individuals whom the Secretary of Labor has determined to be ineligible because they do not qualify as "manufacturers" or "regular dealers" within the meaning of section 1(a) of the Walsh-Healey Public Contracts Act (41 U.S.C. 35(a)). Under that Act, procurement contracts in excess of $10,000 shall not be awarded to firms or individuals under Type B listings for those materials, articles, or equipment with respect to which the firm or individual has been found to be ineligible. NASA, as a matter of policy, applies the same rule to contracts of $10,000 or less, However, bids or proposals may be solicited, and contracts in any amount may be awarded, for commodities with respect to which the firm or individual has not been declared ineligible. In connection with ineligibility under the Walsh-Healey Act (Type B listings only), the name of an individual may be listed as affiliated with an ineligible firm. This listing is intended only to prevent such individuals from evading ineligibility merely by changing their business names and addresses. It

does not prohibit other firms in which such individuals have an interest, and which are qualified manufacturers or regular dealers, from receiving contracts subject to the Walsh-Healey Public Contracts Act.

(3) Type C includes firms or individuals whom the Administrator, pursuant to section 3(b) of the Buy American Act (41 U.S.C. 10b(b)), has found to have failed to comply with the Buy American Act clause required for construction contracts (see § 18-6.205 of this chapter). Bids or proposals for the construction, alteration, or repair of public buildings or public works in the United States or elsewhere shall not be solicited from firms or individuals under Type C listings; nor shall contracts for such work be awarded to such firms or individuals. However, firms or individuals under Type C listings may be solicited for bids or proposals and may be awarded contracts for other than the construction, alteration, or repair of public buildings or public works.

(4) Type D includes firms or individuals whom the Administrator or his authorized representative has determined to suspend for any of the causes and under all of the conditions set forth in § 18-1.605. Firms or individuals under Type D listings shall not be solicited for bids or proposals, nor awarded contracts, except as set forth in paragraph (d) of this section, or where the listing indicates that the suspension does not apply to procurement contracts or sales contracts (see § 18-1.606).

(5) Type E includes firms or individuals who have been reported by the Secretary of Labor to have violated labor standards provisions of any of the following statutes:

(i) Anti-Kickback Act (48 Stat. 948) as amended (40 U.S.C. 276(c));

(ii) Work Hours Act of 1962 (40 U.S.C. 327-332);

(iii) National Housing Act (53 Stat. 804) as amended (12 U.S.C. 1703);

(iv) Hospital Survey and Construction Act (60 Stat. 1040);

(v) Federal Airport Act (60 Stat. 170) as amended (49 U.S.C. 1101);

(vi) Housing Act of 1949 (63 Stat. 413) (42 U.S.C. 1441);

(vii) School Survey and Construction Act of 1950 (64 Stat. 967) (20 U.S.C. 251);

(viii) Federal Civil Defense Act of 1950 (64 Stat. 1245) as amended (50 U.S.C. 1245);

(ix) Defense Housing and Community Facilities and Services Act of 1951 (65 Stat. 293) as amended (42 U.S.C. 1591); and

(x) Area Redevelopment Act of 1961 (75 Stat. 47) (42 U.S.C. 2501). Concerns under Type E listings shall not be awarded contracts which are subject to any of the foregoing statutes.

(6) Type F includes firms or individuals who have been reported by the Executive Vice Chairman of the President's Committee on Equal Employment Opportunity as ineligible for Government contracts for noncompliance with (i) the Equal Opportunity clause set forth in § 18-12.802-1, or (ii) the Equal Opportunity in Federally Assisted Construction Contracts clause set forth in § 1812.802-2. Firms or individuals under Type F listings shall not be awarded contracts or be solicited for bids (see § 1812.806-8).

(b) Administration of current contracts in all phases may be continued with a firm or individual, notwithstanding the listing of such firm or individual, unless otherwise prescribed by the Administrator or his authorized representative. However, payment of all or any part of funds due or to become due shall be withheld when such action is determined to be in the best interest of the Government by the Administrator or his authorized representative. When it appears necessary to withhold payments to protect the interests of the Government, action to withhold payment under the contract shall be initiated promptly by the contracting officer and the matter shall be referred to the Office of Procurement for decision. No payments shall be made pending this decision.

(c) When a listed firm or an individual is proposed as a subcontractor, the contracting officer shall decline to consent to subcontracting with such firm or individual in any instance in which consent is required of the Government before the subcontract is made. If award of a subcontract to a listed firm or individual is considered in the best interest of the Government, the contracting officer, prior to approving such award, shall submit a written recommendation to the

Office of Procurement, citing complete and detailed justification for the award. Based on such justification, the Director of Procurement may authorize an exception to the restrictions imposed by the C. listings. In the case of subcontracts already in effect, prime contractors may not be required to terminate subcontracts with a listed firm or individual unless provisions of the prime contract reserve to the Government such control over subcontracting permitting the Government to require their termination. If the Government has such control, the contracting officer shall decide whether such subcontracts should be continued or terminated and forward his recommendations to the procurement officer (see § 18-1.226) for an appropriate determination. The procurement officer shall decide whether it is in the best interests of the Government to continue or terminate such subcontractors, unless otherwise prescribed by the Director of Procurement.

M

།

(d) The Administrator or his authorized representative may authorize exceptions to the restrictions imposed by Type A (iii) listings and Type D listings, including Type (Aiii) listings and Type D listings contained in the Joint Consolidated List, when it is determined that such action is in the best interest of the Government. In such cases, when it is considered necessary or advisable to solicit bids or proposals from, or to award a contract to, a listed firm or individual, the contracting officer shall submit a written recommendation to the Office of Procurement, citing complete and detailed justification for the proposed action. The recommendation will be based on such factors as (1) urgent delivery or performance schedules, or (2) inability to secure the supplies or services from other sources due to lead time, proprietary data, or lack of procurement data.

§ 18-1.604 Debarment of bidders. § 18-1.604-1 Authority in NASA to debar firms and individuals.

(a) The Administrator may, in the public interest, debar a firm or individual for any of the clauses set forth in 18-1.604-2.

(b) The Director of Procurement, as I an authorized representative of the Administrator, is authorized to debar in the

embezzlement,

(3) Commission of theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty, which seriously and directly affects the question of present responsibility as a Government contractor.

If the conviction or judgment is reversed on appeal, the debarment shall be removed upon receipt of notification thereof. The foregoing does not necessarily require that a firm or individual be debarred. The decision to debar is discretionary; the seriousness of the offense and all mitigating factors shall be considered in making the decision to debar.

(b) Clear and convincing evidence of violation of contract provisions, as set forth below, when the violation is of a character so serious as to justify debarment action:

(1) Willful failure to perform in accordance with the specifications or delivery requirements in a contract;

(2) A history of failure to perform, or of unsatisfactory performance, in accordance with the terms of one or more contracts: Provided, That such failure or unsatisfactory performance is within a reasonable period of time preceding the determination to debar (failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered as a basis for debarment); or

(3) Violation of the contractual provision against contingent fees.

(c) Any other causes affecting responsibility as a Government contractor of such serious and compelling nature as