- Briefing Room
U.S. Department of Transportation
Federal Highway Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
This Directive was Canceled June 19, 2000.
|FHWA Nonprocurement Suspension and Debarment Process (Federal-Aid Program)|
|Classification Code||Date||Office of Primary Interest|
|2000.2||November 19, 1993||HIPA-30|
These regulations apply to all persons who have participated, are currently participating, or may reasonably be expected to participate in transactions under Federal nonprocurement programs.
Covered transactions include all primary transactions (i.e., prime contracts), regardless of size, and lower tier transactions (i.e., subcontractors, material suppliers, vendors, etc.) equal to or exceeding the small purchase threshold (currently $25,000). Lower tier transactions, regardless of size, under which a person has critical influence or substantive control over a prime contract are also covered.
(1) commission of fraud or a criminal offense in connection with the obtainment, attempt to obtain, or performance of a public or private agreement or transaction;
(2) violation of Federal or State antitrust statutes, including those proscribing price fixing betweencompetitors, allocation of customers between competitors, and bid rigging;
(3) commission of embezzlement, theft, forgery, or bribery; falsification or destruction of records; falsification of statements or claims; receipt of stolen property; obstruction of justice; or
(4) commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a person.
(1) willful failure to perform in accordance with the terms of one or more public agreements or transactions,
(2) history of failure to perform or of unsatisfactory performance of one or more public agreements or transactions, or
(3) willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction.
(1) procurement debarment by any Federal agency taken pursuant to 48 CFR Subpart 9.4;
(2) knowingly doing business with a debarred, suspended, ineligible, or voluntarily excluded person, in any connection with a covered transaction, except as permitted in 49 CFR § 29.215 or § 29.220;
(3) failure to pay a single substantial debt, or a number of outstanding debts (including disallowed costs and overpayments, but not including sums owedthe Federal Government under the Internal Revenue Code) owed to any Federal agency or instrumentality, provided the debt is uncontested by the debtor or, if contested, provided that the debtor's legal and administrative remedies have been exhausted;
(4) violation of a material provision of a voluntary exclusion agreement entered into under 49 CFR § 29.315 or of any settlement of a debarment or suspension action; or
(5) violation of any requirement of 49 CFR 29 Subpart F, relating to providing a drug-free workplace, as set forth in 49 CFR § 29.615.
(1) that a cause for debarment under paragraph 7 may exist, or
(2) to suspect the commission of an offense listed in paragraph 7a. An indictment for such offenses will constitute adequate evidence for purposes of suspension actions.
(1) Office of the Inspector General investigative reports,
(2) Department of Justice/U.S. Attorney investigations,
(3) Civil and/or criminal court actions, and
(4) Media reports (newspaper, magazine, newsletter, etc.).
(1) A Notice of Suspension and Proposed Debarment will be issued when a conviction or civil judgment listed in paragraph 7a is the cause for the debarment action.
(2) A Notice of Suspension will be issued whenimmediate exclusion is warranted based on adequate evidence of a debarment cause listed in paragraph 7a (e.g., the alleged acts indicate a reckless disregard for the structural integrity of a highway, bridge, appurtenance, etc.).
(3) A Notice of Proposed Debarment will be issued when a debarment cause listed in paragraph 7a, or adequate evidence thereof, is not the cause for the debarment action.
(1) If the action is not based on a conviction or civil judgment and the respondent's appeal raises a genuine dispute over facts, the respondent will be given the opportunity to appear with counsel to present witnesses, submit evidence, and confront any agency witnesses. (However, the FHWA customarily gives respondents the opportunity to meet informally with the Debarring Official even when the action was predicated on conviction or civil judgment.)
(2) The Debarring Official will issue a final decision on the S/D action within 45 days after completion of the respondent's appeal and the resolution of any disputed facts. The respondent will be sent a letter, via certified mail, stating the action taken. Either a Notice of Debarment or a Notice of Reinstatement will be issued to document the final action.
(3) The Debarring Official may refer controversialproceedings, for which a settlement on an S/D action cannot be reached, to the Secretary of Transportation's Board of Contract Appeals (S-20).
(1) Suspension. Suspension actions are taken for a temporary period, pending the completion of the debarment process. Generally, suspensions will not exceed 12 months. If a legal or administrative proceeding is not initiated within 12 months of the effective date of the suspension, then the suspension will be terminated, unless an Assistant Attorney General or a United States Attorney requests an extension in writing, in which case it may be extended for an additional 6 months. In no event will a suspension be extended beyond 18 months, unless a legal proceeding is initiated which precludes lifting of the suspension.
(2) Debarment. Generally, debarment periods are limited to 3 years; however, if circumstances warrant, a longer debarment period may be imposed. The proposed debarment period, typically 3 years, may be reduced by the Debarring Official commensurate with the seriousness of the cause and any mitigating evidence presented. If preceded by suspension, the debarment period will be measured, retroactively, from the effective date of the suspension.
(1) The GSA List is published monthly. Copies are distributed to all FHWA regional and division offices. Due to printing and mailing time, the information in the GSA List is approximately 6 weeks old by the time that it is distributed. However, the GSA List includes information on how to obtain up-to-date S/D information and information on how to access the computer system.
(2) In order to ensure that FHWA S/D actions are administered in a timely manner, the field offices will be notified of FHWA S/D actions, via E-Mail, within a few working days of their occurrence. In addition, HNG-22 maintains a list of persons suspended, debarred, and reinstated by the FHWA. This list of FHWA S/D actions will be E-Mailed to the field offices during the first week of each month. It is emphasized that the FHWA list only includes actions taken by the FHWA and is not intended to be used in lieu of the GSA List.
(1) The State highway agencies (SHA's) are required to annually certify as to the current eligibility status of their principals. The certification is to be submitted with the State's annual Section 105 Program of Projects.
(2) Prime contract bidders and consultants are required to certify as to their own current eligibility status, as well as that of their principals, as a part of each Federal-aid highway contract bid proposal and consultant agreement.
(3) All lower tier covered transaction participants are also required to certify as to the current eligibility status of the company and its principals.
List to determine if the prospective participant is excluded from nonprocurement programs. For projects on which a SHA has opted to forego FHWA oversight, the responsibility to check the GSA List is assumed by the State.
Rodney E. Slater
Federal Highway Administrator