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This directive was canceled November 7, 2014.

Order
Subject
FHWA Nonprocurement Suspension and Debarment Process (Federal-Aid Program)
Classification Code Date Office of Primary Interest
2000.2A June 19, 2000 HIPA-30

Par.
  1. Purpose
  2. Cancellation
  3. Authority
  4. Definitions
  5. Background
  6. Scope
  7. Policy
  8. Causes for Debarment
  9. Suspension
  10. Field Processing
  11. Headquarters Processing
  12. Implementation of Suspension and Debarment Actions

  1. PURPOSE. To prescribe policy and guidelines for processing suspension and debarment (S/D) actions against participants who have an unsatisfactory record of integrity and business ethics in Federal Highway Administration (FHWA) financial assistance (Federal-aid) programs.

  2. CANCELLATION. FHWA Order 2000.2, FHWA Nonprocurement Suspension and Debarment Process (Federal-Aid Program), dated November 19, 1993, is canceled.

  3. AUTHORITY. 49 CFR Part 29 - Governmentwide Debarment and Suspension (Nonprocurement).

  4. DEFINITIONS. Pertinent definitions are set forth in 49 CFR § 29.105.

  5. BACKGROUND. S/D actions are discretionary administrative actions taken to protect the Federal Government by excluding certain firms and persons from participation in Federal programs. The S/D action ensures that the Federal Government does not conduct business with a person or firm that has an unsatisfactory record of integrity and business ethics. The S/D actions are administered governmentwide; consequently, a person or firm excluded by one Federal agency is excluded from doing business with all Federal agencies.

  6. SCOPE. This Order applies to the FHWA Headquarters and field offices, except the Federal Lands Highway Divisions, for 48 CFR applies to the Federal Lands Highway Divisions. This Order covers all S/D actions within the meaning of 49 CFR § 29.110(a):

    1. These regulations apply to all persons and firms that have participated, are currently participating, or may reasonably be expected to participate in transactions under Federal nonprocurement programs.

    2. Covered transactions include all primary transactions (i.e., any transaction between FHWA and a financial assistance recipient, regardless of size, and lower-tier transactions (i.e., prime contracts between State DOTs and contractors or consultants, subcontracts, and contracts for material supply or vendor contracts, etc.) equal to or exceeding the small-purchase threshold (currently $100,000). Lower-tier transactions, regardless of size, under which a person has critical influence or substantive control over a prime contract (auditing services, construction inspection, and quality assurance services that might influence a contract) are also covered.

  7. POLICY. It is FHWA policy to consider action against a person or firm whenever a cause within the meaning of 49 CFR Part 29 has occurred.

  8. CAUSES FOR DEBARMENT. Causes for debarment action include (49 CFR § 29.305):

    1. Conviction of or civil judgment for:

        (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 between competitors, 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.

    2. Violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program, such as:

        (1) a willful failure to perform in accordance with the terms of one or more public agreements or transactions,

        (2) a history of failure to perform or of unsatisfactory performance of one or more public agreements or transactions, or

        (3) a willful violation of a statutory or regulatory provision or requirement applicable to a public agreement or transaction.

    3. Any of the following causes:

        (1) a 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 owed the 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.

    4. Any other cause of so serious or compelling a nature that it affects the present responsibility of a person.

  9. SUSPENSION. When circumstances warrant, suspension action will be taken to protect the Federal Government by excluding persons and firms proposed for debarment from participation in the Federal assistance programs while the debarment action is processed.

    1. Causes for suspension action (49 CFR § 29.405) include adequate evidence:

        (1) that a cause for debarment under paragraph 8 may exist, or

        (2) to suspect the commission of an offense listed in paragraph 8a.

    2. An indictment shall constitute adequate evidence for purposes of suspension actions.

  10. FIELD PROCESSING. The Division Administrator will ensure that the following steps are taken with regard to S/D actions:

    1. Information concerning the existence of a cause for debarment from any source will be promptly investigated and reported. Sources of information regarding potential S/D actions include:

        (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.).

        Note: It is important to document any State-level S/D actions that have taken place. If information is available, the Division Administrator should document the status and terms of the State's S/D action and comment on the terms of any State recommendation.

    2. The Division Administrator will compile and submit information on all actions that are cause for debarment. The information should be obtained in a timely manner. Every effort will be made to initiate S/D action within 6 months of the field's knowledge of existence of a cause.

    3. The Division Administrator will coordinate with the appropriate Resource Center Assistant Chief Counsel to identify causes warranting S/D action and provide any information and documentation requested by Headquarters. Sufficient documentation should be included from which a determination can be made of the effect of the S/D actions on the Federal-aid program. The information should include a determination of the subject person's or firm's participation in Federal and non-Federal highway construction-related activities, an evaluation of the effect of the actions on Federal-aid projects, and consideration of the likelihood of the actions causing future effects on the Federal-aid program.

    4. If it is determined that the cause involves another Federal agency, the Resource Center Assistant Chief Counsel will coordinate with that agency. That counsel will consult with the Program Legal Services Division in the Chief Counsel Service Business Unit (HCC-30), before reaching a decision with the other agency as to which agency will take the lead on the S/D action. Likewise, if another Federal agency contacts an FHWA field office regarding an S/D action of FHWA interest, the response will be coordinated with the Program Legal Services Division (HCC-30) and the Infrastructure Core Business Unit (CBU), Office of Program Administration, Contract Administration Group (HIPA-30).

    5. The Division Administrator will submit a complete S/D information package documenting the cause or causes for imposing the S/D action to the Debarring Official. The Program Manager of the Infrastructure CBU is the Debarring Official for FHWA. The Debarring Official provides a courtesy copy of the information package to the Program Legal Services Division. The Division Administrator must make an S/D recommendation, based on sufficient evidence in the package, including the length of the debarment period, if any. The circumstances warranting any recommended debarment period longer than 3 years should be explained. In addition, the addresses of the subject or subjects of the S/D action must be included in the package.

  11. HEADQUARTERS PROCESSING

    1. The Program Legal Services Division will assess the submitted package, prepare a memorandum of review, and forward the S/D package, with recommended action, to the Contract Administration Group.

    2. The Contract Administration Group will review the package to determine the impact of the proposed S/D action on the Federal-aid program. The S/D package, along with a recommended action, will be forwarded to the FHWA Debarring Official.

    3. The FHWA will notify the person or firm of the S/D action by certified mail. The notice will be accompanied by a formal letter setting forth the basis for the S/D action and the person's or firm's rights under 49 CFR Part 29. Suspensions are effective upon signature of the FHWA Notice and letter or letters by the FHWA Debarring Official. Depending on the circumstances, one of the following notices of S/D action will be issued:

        (1) Notice of Suspension and Proposed Debarment will be issued when a conviction or civil judgment listed in paragraph 8a is the cause for the debarment action.

        (2) Notice of Suspension will be issued when immediate exclusion is warranted, based on adequate evidence of a debarment cause listed in paragraph 8a (e.g., the alleged acts indicate a reckless disregard for the structural integrity of a highway, bridge, appurtenance, etc.).

        (3) Notice of Proposed Debarment will be issued when a debarment cause listed in paragraph 8a, or adequate evidence thereof, is not the cause for the debarment action.

    4. The respondent (the subject of the S/D action) will be given 30 calendar days from receipt of the certified letter to contest the action. The respondent may appeal the action in person, in writing, or through legal counsel to the Debarring Official. Requests to extend the 30-calendar-day period will be reviewed on a case-by-case basis.

    5. The respondent may appeal the substance of the action, the length of the proposed debarment, or both. The FHWA Debarring Official may reverse the S/D decision or reduce the debarment period, based on the existence of any of the conditions set forth in 49 CFR § 29.320.

        (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 FHWA Debarring Official, even when the action was predicated on conviction or civil judgment).

        (2) The FHWA Debarring Official will issue a final decision on the S/D action within 45 calendar 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 FHWA Debarring Official may refer controversial proceedings, for which a settlement on an S/D action cannot be amicably reached, to the Secretary of Transportation's Board of Contract Appeals (S-20).

    6. If the respondent does not contest a proposed debarment within the 30-calendar-day period, the FHWA will issue a Notice of Debarment for the period proposed in the Notice.

    7. Length of S/D actions:

        (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 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 FHWA Debarring Official commensurate with the seriousness of the cause and any mitigating evidence presented. If preceded by suspension, the debarment period will begin retroactively from the effective date of the suspension.

  12. IMPLEMENTATION OF SUSPENSION AND DEBARMENT ACTIONS

    1. The General Services Administration (GSA) is required to compile, maintain, and distribute a governmentwide list of excluded parties. This publication is entitled "Lists of Parties Excluded from Federal Procurement and Nonprocurement Programs" (GSA LIST) . Input to the GSA LIST is received from all Federal Government departments and agencies.

        (1) The GSA LIST is published monthly. Copies are distributed to all FHWA 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. GSA also maintains an electronic data base of excluded parties at the following Internet address: http://epls.arnet.gov.

        (2) 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, the Contract Administration Group (HIPA-30) maintains a list of persons and firms 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.

    2. Participant Certification. All participants in the Federal-aid program are required to certify their current status regarding S/D actions, ineligibility, voluntary exclusion, and convictions and/or civil judgments (49 CFR § 29.510).

        (1) The State DOTs are required to annually certify as to the current eligibility status of their principals. By signing the Federal-aid project agreement form, the State provides the certification for its principals as required in 23 CFR 630.307(c)(4).

        (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 participants are also required to certify as to the current eligibility status of the company and its principals.

Kenneth Wykle Signature

Kenneth R. Wykle
Federal Highway Administrator

Page last modified on October 19, 2015
Federal Highway Administration | 1200 New Jersey Avenue, SE | Washington, DC 20590 | 202-366-4000