[Federal Register: June 18, 2004 (Volume 69, Number 117)]
[Proposed Rules]
[Page 34247-34249]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jn04-50]
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Part III
General Services Administration
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48 CFR Part 509
General Services Acquisition Regulation; Debarment, Suspension, and
Ineligibility; Proposed Rule
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GENERAL SERVICES ADMINISTRATION
48 CFR Part 509
GSAR 2004-G502
RIN 3090-AH97
General Services Acquisition Regulation; Debarment, Suspension,
and Ineligibility
AGENCY: Office of Acquisition Policy, General Services Administration
(GSA).
ACTION: Proposed rule with request for comments.
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SUMMARY: The General Services Administration (GSA) is proposing to
amend the General Services Acquisition Regulation (GSAR) to add an
additional procedure to the decision-making process for the debarment
and suspension of parties.
DATES: Interested parties should submit comments in writing on or
before August 17, 2004 to be considered in the formulation of a final
rule.
ADDRESSES: Submit printed comments to General Services Administration,
Regulatory Secretariat (MVA), 1800 F Street, NW, Room 4035, ATTN:
Laurie Duarte, Washington, DC 20405. Submit electronic comments via the
Internet to the U.S. Government's rulemaking website at http://www.regulations.gov
, or to GSA's e-mailbox at gsarcase.2004-G502@gsa.gov.
Please submit comments only and cite GSAR case 2004-G502 in all
correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: The Regulatory Secretariat, Room 4035,
GS Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Ernest Woodson, Procurement Analyst, at (202) 501-
3775, or by e-mail at ernest.woodson@gsa.gov. Please cite GSAR case
2004-G502.
SUPPLEMENTARY INFORMATION:
A. Background
GSAR 509.406-3(d) and 509.407-3 provide the decision-making
processes for determining whether parties should be suspended or
proposed for debarment, including contractors, principles, and
affiliates. The procedures supplement Federal Acquisition Regulation
(FAR) Subpart 9.4, Debarment, Suspension, and Ineligibility, that
prescribes policies and procedures governing the suspension and
debarment of contractors who are determined not to be responsible by
Federal agencies. It is the Government's policy to solicit offers from,
award contracts to, award task or delivery orders against existing
contracts, and consent to subcontracts with responsible contractors
only. The serious nature of suspension or debarment requires that
agencies impose the sanctions only in the public interest for the
Government's protection. Suspension or debarment is not to be imposed
as punishment for prior bad acts.
The proposed rule would provide parties who are being considered
for suspension or debarment with a Show Cause Notice. Currently, there
is no requirement to notify a contractor that GSA is considering a
suspension or debarment action. In some recent cases, contractors
obtained information through leaked information to the press about
recommendations to suspend or debar them, giving them the advantage of
being able to come in and talk to the GSA Suspension/Debarment
Official, while others found out that they were being considered for
suspension/debarment when they received either the suspension or the
proposed debarment by mail or fax. It is important to note that GSA
encourages any of its private sector partners to come in and discuss
with the Suspension/Debarment Official instances they have discovered
where their responsibility may be placed in question and what steps
they have taken to remedy the situation. We encourage a proactive
approach by our industry partners in dealing with matters that put
their responsibility in question.
The Show Cause Notice would be sent before issuance of a Notice of
Suspension or a Notice of Proposed Debarment except in those cases
where the government would be harmed by waiting any period of time to
suspend or propose the debarment of the contractor. The additional
period of time will not impact a party's right to respond to a Notice
of Suspension or a Notice of Proposed Debarment within 30 calendar days
after its receipt; these two notices trigger placement of a party on
the List of Parties Excluded from Federal Procurement and
Nonprocurement Programs, but the Show Cause Notice would not.
By providing the additional time period, GSA intends to give
parties who are being considered for possible suspension or debarment,
the ability to informally respond to allegations that affect the
responsibility of the contractor.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The General Services Administration does not expect this proposed
rule to have a significant economic impact on a substantial number of
small entities within the meaning of the Regulatory Flexibility Act, 5
U.S.C. 601, et seq., because the proposed rule primarily supplements
existing GSAR procedures that provide the decision-making process for
determining the suspension or debarment of parties. One hundred and
thirteen contractors were suspended or debarred by GSA in 2003, and
this included both large and small businesses. GSA will consider
comments from small entities concerning the affected GSAR Subpart 509.4
in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite GSAR case 2004-G502, in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the GSAR do not impose information collection requirements
that require the approval of the Office of Management and Budget under
44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 509
Government procurement.
Dated: June 10, 2004.
David A. Drabkin,
Deputy Associate Administrator, Office of Acquisition Policy.
Therefore, GSA proposes changes to 48 CFR part 509 as set forth
below:
PART 509--DEBARMENT, SUSPENSION, AND ELIGIBILITY
1. The authority citation for 48 CFR part 509 continues to read as
follows:
Authority: 40 U.S.C. 486(c).
2. Amend section 509.406-3 by redesignating paragraphs (d)(2) and
(d)(3) as (d)(3) and (d)(4), by adding a new paragraph (d)(2), and in
newly designated (d)(3) by redesignating (d)(3)(i) through (iv) as
(d)(3)(ii) through (v), and adding a new (d)(3)(i) to read as follows:
509.406-3 Procedures.
* * * * *
(d) Decision-making process. * * *
(2) The debarring official must provide a Show Cause Notice to each
party being considered for debarment, before issuing a Notice of
Proposed Debarment. However, a Show Cause Notice need not be provided
if--
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(i) The debarring official, in her/his sole discretion, has
determined that any delay in issuing the Notice of Proposed Debarment
would cause imminent harm to the Government; or,
(ii) A suspension is already in effect.
(3) * * *
(i) May informally respond to a Show Cause Notice, but has no
obligation to do so.
* * * * *
509.407-3 [Amended]
3. Amend 509.407-3(b)(2)(ii) by removing the reference ``509.406-
3(d)(3)'' and adding ``509.406-3(d)(4)'' in its place.
[FR Doc. 04-13762 Filed 6-17-04; 8:45 am]
BILLING CODE 6820-61-S