Code of Federal Regulations: Containing a Codification of Documents of ...

may be determined by the Administrator to justify debarment: Provided, That no firm or individual shall be debarred for failure to comply with (1) the Equal Opportunity clause set forth in § 1812.802-1 or (2) the Equal Opportunity in Federally Assisted Construction Contracts clause set forth in § 18-12.802-2, except as prescribed under § 18-12.806-8.

(d) Debarment for any of the above causes by some other executive agency of the Government. Such debarment may be based entirely upon the record of facts obtained by the original debarring agency, or upon a combination of additional facts with the record of facts of the original debarring agency. § 18-1.604-3 Period and scope of debarment.

(a) Period of debarment. All debarments by NASA shall be for a reasonable, specified period of time, commensurate with the seriousness of the cause therefor. As a general rule, a period of debarment will not exceed 3 years. In the event debarment is preceded by suspension, consideration shall be given to such period of suspension in determining the period of debarment. Prior to the expiration of the debarment period of any firm or individual who has been debarred by NASA for any of the causes set forth in § 18-1.604-2, the Director of Procurement will cause all of the facts and circumstances relating to the debarment to be reviewed. The debarment shall be removed at the expiration of the specified period, unless, on the basis of an evaluation of newly developed facts, it is determined that debarment for an additional period is required in order to protect the Government's interests. Where debarment for an additional period is considered necessary, notice of the proposed debarment shall be furnished the firm or individual in accordance with § 181.604-4. The debarment of a firm or individual may be modified by reducing the period thereof when the circumstances justify such action. With respect to debarment for violation of the (1) Equal Opportunity clause set forth in § 1812.802-1, or (2) the Equal Opportunity in Federally Assisted Construction Contracts clause set forth in § 18-12.802-2 (Type F), the names of such firms or individuals shall be removed from the NASA list (§ 18-1.601-1) upon receipt of notification from the Executive Vice Chairman of the President's Committee

on Equal Employment Opportunity that the eligibility of such firms or individuals has been reestablished.

(b) Scope of debarment. (1) Debarment may include all known affiliates of a firm or individual. For the definition of an affiliate, see § 18-1.600-2.

(2) An attempt shall be made to determine who are the affiliates of any firm or individual who is proposed to be debarred. Consideration shall be given to initiating debarment against such affiliates whenever the facts and circumstances justify debarment of the firm or individual concerned would also justify debarment of such affiliates.

(3) The fraud or criminal conduct of an individual may be imputed to the business firm with which he is connected whenever the impropriety involved was performed in the course of official duty or with the knowledge or approval of the business firm.

§ 18-1.604-4 Notice of debarment.

(a) The firm or individual proposed for debarment shall be furnished with a written notice of the proposed debarment by the Director of Procurement, stating as a minimum:

(1) The fact that debarment is being considered;

(2) The reasons for the proposed debarment; and

(3) The period of time to be afforded to present information for consideration. Information in opposition to a proposed debarment may be presented in person, in writing, or through representation. The period of time to be afforded to present information for consideration shall be limited to 30 days unless the firm or individual requests and justifies additional time. When no additional time is requested, the debarment determination, including the notice to the firm or individual, shall be completed within 90 days. When additional time is requested and it is determined to grant such additional time, the 90-day period shall be adjusted accordingly. If the firm or individual is not under suspension, pursuant to § 181.605, the notice of proposed debarment will inform the firm or individual that no contracts shall be awarded to such firm or individual pending the debarment determination.

(b) If the firm or individual proposed for debarment has affiliates who are also proposed to be debarred, the procedures set forth in paragraph (a) of this section shall be applied to such affiliates.

(c) If debarment is effected, the firm or individual and the affiliates that have been debarred will be notified by the Director of Procurement, in writing, within 10 days after determination of debarment has been made. This notice will:

(1) Reference the earlier notice of proposed debarment;

(2) Specify the reasons for debarment; and

(3) State the period of debarment, including effective dates.

If, following the notice of proposed debarment, a determination is made that debarment will not be effected, the Director of Procurement will notify the firm or individual in writing accordingly.

(d) Copies of the notice of debarment and of any removals from such debarment will be furnished to the General Services Administration.

(e) All inquiries or correspondence from or in behalf of debarred contractors concerning their status, reasons for debarment action, etc., shall be forwarded to the Office of Procurement (Code KDP) for appropriate action.

§ 18-1.604-50 Reporting procedures.

(a) Procurement officers may submit reports recommending debarment of a firm or individual for any of the causes set forth in § 18-1.604-2. Such actions I shall be coordinated with local counsel.

(b) Reports recommending debarment shall be submitted in triplicate to the Office of Procurement (Code KDP). Each such report shall contain a complete statement of the facts concerning the firm's or individual's dereliction, including affidavits, depositions, records of action, if applicable, and any other relevant data. Names and addresses of all persons having knowledge of the circumstances shall be included. Such reports shall include the names and addresses of all known affiliates of reported firms or individuals, together with the nature of such affiliation.

18-1.605 Suspension of bidders. 18-1.605-1 General.

Suspension of a firm or an individual s a drastic action which must be based upon adequate evidence rather than nere accusation. In assessing adequate evidence, consideration should be given o how much credible information is Available, its reasonableness in view of urrounding circumstances, corroboraion or lack thereof as to important

allegations, and inferences which may be drawn from the existence or absence of affirmative facts. This assessment should include an examination of basic documents, such as contracts, inspection reports, and correspondence. The suspension of a firm or individual is an administrative determination which may be modified when determined to be in the interest of the Government.

§ 18-1.605-2 Authority in NASA to suspend firms or individuals.

(a) The Administrator may, in the interest of the Government, suspend a firm or individual for any of the causes set forth in § 18-1.605-3.

(b) The Director of Procurement, as an authorized representative of the Administrator, is authorized to suspend in the interest of the Government a firm or individual for any of the causes set forth in § 18-1.605-3, except for paragraph (2) thereof, in accordance with the procedures set forth in this Subpart 18-1.6. § 18-1.605-3 Causes for suspension.

A firm or individual may be suspended, whenever such suspension is determined to be in the interest of the Government, for the following causes:

(a) Whenever the firm or individual is suspected of

(1) Commission of fraud or a criminal offense as an incident to obtaining, attempting to obtain, or in the performance of a public contract;

(2) Violation of the Federal antitrust statutes arising out of the submission of bids and proposals; or

(3) Commission of embezzlement, 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.

(b) Any other causes of such serious and compelling nature as may be determined to justify suspension: Provided, That no firm or individual shall be suspended for failure to comply with the Equal Opportunity clause set forth in § 18-12.802-1, or the Equal Opportunity in Federally Assisted Construction Contracts clause set forth in § 18-12.802-2, except as prescribed under § 18-12.806-8. § 18-1.605-4 Period and scope of suspension.

(a) Period of suspension. All suspensions made by NASA shall be for a tem

porary period pending the completion of investigations and such legal proceedings as may ensue.

(1) In the event a firm or individual is suspended for any cause set forth in § 181.605-3(1) and prosecutive action is not initiated by the Department of Justice within 12 months from the date of the notice of suspension, the suspension shall be terminated unless an Assistant Attorney General requests continuation of the suspension. If such a request is received, the suspension may be continued for an additional 6 months. Notice of the proposed removal of the suspension shall be given to the Department of Justice 30 days prior to the expiration of the 12-month period. In no event shall suspension continue beyond 18 months unless prosecutive action has been initiated within that period. Where prosecutive action is initiated, the suspension may continue until legal proceedings are completed.

(2) In the event a firm or an individual is suspended by the Administrator for any cause in accordance with § 18-1.605-3(2), the period of suspension shall not exceed 90 days. The period of suspension may be extended for additional periods of 90 days upon a determination by the Administrator of the reasons and necessity therefor. However, in no event shall the total of any suspension under this § 18-1.605-4 exceed one year or be in addition to any period of suspension under subparagraph (1) of this paragraph.

(3) Upon the completion of the legal proceedings under subparagraph (1) of this paragraph or investigation under subparagraph (2) of this paragraph the suspension shall be removed and, if appropriate, changed to a debarment in accordance with § 18-1.604-2(a). Firms or individuals released from suspension and not debarred shall be replaced on appropriate bidders lists.

(b) Scope of suspension. (1) Suspension may include all known affiliates of a firm or individual. For the definition of an affiliate, see § 18-1.600-2.

(2) An attempt shall be made to determine who are the affiliates of any firm or individual who is proposed to be suspended. Consideration shall be given to suspending such affiliates whenever the facts and circumstances justifying suspension of the firm or individual concerned would also justify suspension of such affiliates.

§ 18-1.605-5 Restrictions during period of suspension.

Suspended firms or individuals shall be subject to the provisions of § 18-1.603 (a) (4), (b), and (c).

§ 18-1.605-6 Notice of suspension.

(a) The firms or individuals who have been suspended will be furnished a written notice, by the Director of Procurement, of the suspension within 10 days after the effective date of the suspension. The notice of suspension will state:

(1) That the suspension is based on information that the firm or individual has committed irregularities of a serious nature in business dealings with the Government or that the suspension is based on irregularities which seriously reflect on the propriety of further dealings of the firm or individual with the Government, together with a description of the nature of those irregularities, in general terms, without disclosing the Governments's evidence;

(2) That the suspension is for a temporary period pending the completion of an investigation and such legal proceedings as may ensue; and

(3) That bids and proposals will not be solicited from such firms or individuals and if received will not be considered, and awards of contracts may not be made, unless it is determined to be in the best interest of the Government by the Administrator or his authorized representative to do so.

(b) Copies of the notice of suspension and of any removal from such suspension shall be furnished to the Department of Justice.

(c) All inquiries or correspondence from or in behalf of suspended firms and individuals concerning their status, reasons for suspension, and so forth, shall be forwarded to the Office of Procurement (Code KDP) for appropriate action. Information beyond that stated in the notice of suspension concerning the reasons for suspension shall not be furnished to the contractor or his representatives until the Department of Justice has been advised of the inquiry.

§ 18-1.605-50 Reporting procedures.

(a) Procurement officers may submit reports recommending suspension of a firm or individual for any of the causes set forth in § 18-1.605-3. Such actions shall be coordinated with local counsel.

(b) Reports recommending suspension shall be submitted in triplicate to the Office of Procurement (Code KDP). Such reports shall contain a complete statement of the pertinent facts indicating alleged criminal conduct, fraudulent activity, or suspicion thereof, and shall be supported by appropriate exhibits, including copies of any contracts involved and any assignments of claims thereunder. Such reports shall include the names and addresses of all known affiliates of reported firms or individuals, together with the nature of such affiliation.

§ 18-1.606 Limited debarment or suspension.

When it is determined to debar or suspend a concern pursuant to § 18-1.604 or 18-1.605, the Administrator or his authorized representative shall decide Ewhether the debarment or suspension should extend to procurement contracts or sales contracts or to both. If the debarment or suspension is limited to 1 either procurement contracts or sales contracts, the listing should so indicate. Likewise, a decision may be made to except from an administrative debarment For suspension a particular commodity or commodities or a particular division or subsidiary or other appropriate organizational element of the contractor where such action is considered to be in the best interests of the Government. § 18-1.607 Interchange of debarment information.

(a) The General Services Administra* tion, in accordance with FPR 1-1.607(a), is charged with compiling from the noEtice of debarments furnished it by NASA and other executive agencies a combined list of such debarments, including the basis of action, and distributing a copy of such list to NASA and all other executive agencies.

(b) The list furnished by General Services Administration shall be for information purposes only; it is not intended to take the place of, or be an addition to, the lists used by NASA.

Administration and consider firms or individuals listed thereon for inclusion upon the NASA list, in accordance with the provisions of this Subpart 18-1.6.

(d) On specific request of the Director of Procurement, the General Services Administration has agreed to furnish to NASA, in accordance with FPR 1-1.607 (b), a copy of the notice reflecting the basis for debarment action taken by another agency pursuant to its regulations or under the Buy American Act (41 U.S.C. 10a-d) (see § 18-1.603 (a) (3) Type C listing). If desired, the Director of Procurement may make a direct inquiry concerning any debarment case to the agency which originated the action. Subpart 18-1.7-Small Business Concerns

tracts and can further qualify under the criteria set forth in this Subpart. When computing the size status of a bidder or offeror, the number of employees, annual sales or receipts, or other applicable standards of the bidder or offeror and all of its affiliates shall be included. "Concern" means any business entity organized for profit with a place of business in the United States, its possessions or Puerto Rico, including but not limited to an individual, partnership, corporation, joint venture, association, cooperative.

(2) Industry small business size standards. In addition to being independently owned and operated, and not dominant in the field of operation in which it is bidding on Government contracts, a small business concern in order to qualify as such must meet the appropriate small business size standards established for the industries set forth in subdivisions (i) through (v) of this subparagraph. Contracting officers shall use the Standard Industrial Classification Manual, including the 1963 supplement thereto, prepared by the Bureau of the Budget, as a guide to determine the appropriate industry classification for each item or service to be procured. If a procurement calls for more than one item, the bidder must meet the size standard for each item for which it submits a bid. The determination of the appropriate classification of a product shall be made by the contracting officer and his determination shall be final unless appealed in the manner provided in § 181.703 (b) (4). When an item is classified into two or more industries with different small business size standards, the smallest of such size standards shall be used. When more than one item is being procured and two or more industries with different size standards are involved, the bidder must meet the small business size standard for each item for which he submits a bid. Contracting officers may obtain advice from the SBA Regional Office serving the area in which the procurement office is located, when in doubt concerning the appropriate small business size standard to be prescribed for a particular procurement. The term "annual receipts" as used throughout this Part 18-1 means the annual receipts, less returns and allowances, of a concern and its affiliates during its most recently completed fiscal year. If no standard for an industry, field of operation, or ac

tivity; e.g., animal specialities, fin fish, anthracite mining, management-logistics support (outside of the several States, Commonwealth of Puerto Rico, Virgin Islands or the District of Columbia) has been set forth in subdivisions (1) through (vi) of this paragraph (a)(2), a concern bidding on a Government contract is a small business if including its affiliates, it is independently owned and operated, is not dominant in the field of operation in which it is bidding on Government contracts, and has 500 employees or less.

(i) Construction industries. In bidding on a contract for construction, alteration, or repair (including painting and decorating) of buildings, roads, or other real property, the average annual receipts of the concern and its affiliates for its preceding three fiscal years must not exceed $7,500,000, except that if the concern is located in Alaska, such receipts must not exceed $9,375,000. In bidding on a contract for dredging, the average annual receipts of the concern and its affiliates for its preceding, three fiscal years must not exceed $5 million, except that if the concern is located in Alaska, such receipts must not exceed $6,250,000.

(ii) Manufacturing industries-(a) Food canning and preserving industry. In bidding on a contract for food canning and preserving, the number of employees of the concern and its affiliates must not exceed 500 persons exclusive of "agricultural labor" as defined in 26 U.S.C. 3306(K).

(b) Petroleum industry. In bidding on a contract for petroleum, other than lubricants and miscellaneous petroleum products, the number of employees of the concern and its affiliates must not exceed 1,000 employees and it must not have more than 30,000 barrels per day crude oil capacity from owned or leased facilities. ("Crude oil capacity" means the maximum daily average crude throughput of a refinery in complete operation with allowances for necessary shutdown time for routine maintenance, repairs, etc. It approximates the maximum daily average crude runs to stills that can be maintained for an extended period.)

(c) Manufacturing industries listed in § 18-1.701-4. In bidding on a contract. for a product classified within an industry listed in § 18-1.701-4, the number of employees of the concern and its affiliates

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