U.S. Department of Transportation
Federal Highway Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
This directive was canceled November 7, 2014.
|FHWA Nonprocurement Suspension
and Debarment Process (Federal-Aid Program)|
||Office of Primary Interest
||June 19, 2000
- Causes for Debarment
- Field Processing
- Headquarters Processing
- Implementation of Suspension and Debarment Actions
- 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)
- CANCELLATION. FHWA Order 2000.2, FHWA Nonprocurement Suspension and
Debarment Process (Federal-Aid Program), dated November 19, 1993, is canceled.
- AUTHORITY. 49 CFR Part 29 - Governmentwide Debarment and Suspension
- DEFINITIONS. Pertinent definitions are set forth in 49 CFR §
- 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.
- 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):
- 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.
- 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.
- 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.
- CAUSES FOR DEBARMENT. Causes for debarment action include (49 CFR
- 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.
- 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.
- Any of the following causes:
(1) a procurement debarment by any Federal agency taken pursuant to 48 CFR Subpart
(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
(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.
- Any other cause of so serious or compelling a nature that it affects the
present responsibility of a person.
- 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.
- Causes for suspension action (49 CFR § 29.405) include adequate evidence:
- An indictment shall constitute adequate evidence for purposes of suspension
- FIELD PROCESSING. The Division Administrator will ensure that the
following steps are taken with regard to S/D actions:
- 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.
- 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.
- 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.
- 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).
- 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.
- HEADQUARTERS PROCESSING
- 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.
- 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.
- 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
- 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.
- 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).
- 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
- 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
(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.
- IMPLEMENTATION OF SUSPENSION AND DEBARMENT ACTIONS
- 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:
(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.
- 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
(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 R. Wykle
Federal Highway Administrator
Page last modified on October 19, 2015