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64 role in a national program to prevent water pollution. It was passed during <strong>the</strong> last few days <strong>of</strong> <strong>the</strong> 92nd Congress. The law authorizes debarment in <strong>the</strong> same manner as does <strong>the</strong> Clean Air Act; that is, by prohibiting Government contracts to be performed in a facility where <strong>the</strong> violation arises. A conviction <strong>of</strong> <strong>the</strong> <strong>of</strong>fense is required for debarment. The law also provides for <strong>the</strong> President to issue an order to implement <strong>the</strong> purposes aud policy <strong>of</strong> <strong>the</strong> act and to prescribe "procedures, sanctions, penalties." The implementing order is yet to be issued. REGULATORY BASES FOR DEBARMENT Agency Regulations Regulations in addition to those issued pursuant to statute, as discussed above, provide fur<strong>the</strong>r bases for debarment. For purposes <strong>of</strong> discussion <strong>the</strong> Armed Services Procurement Regulation (ASPR) has been chosen since its treatment <strong>of</strong> debarment is similar to that in <strong>the</strong> regulations <strong>of</strong> o<strong>the</strong>r agencies." AGENCY DEBARMENTS-CAUSES AND PROCEDURES The basis for agency debarments set out by ASPR are: (I) conviction by or a judgment obtained in a court <strong>of</strong> competent jurisdiction for (A) commission <strong>of</strong> fraud or a criminal <strong>of</strong>fense as an incident to obtaining, attempting to obtain, or in <strong>the</strong> performance <strong>of</strong> a public contract; (B) violation <strong>of</strong> <strong>the</strong> Federal antitrust statutes arising out <strong>of</strong> submission <strong>of</strong> bids or proposals; or (C) commission <strong>of</strong> embezzlement, <strong>the</strong>ft, forgery, bribery, falsification or destruction <strong>of</strong> records, receiving stolen property, or any o<strong>the</strong>r <strong>of</strong>fense indicating a lack <strong>of</strong> business integrity or business honesty which seriously and directly affects <strong>the</strong> question <strong>of</strong> present responsibility as a Government contractor.... n See FPR 1.1.600 to 1-1.607 and NASA PR 1.600 to 1.607. Part G (ii ) clear and convincing evidence <strong>of</strong> violation <strong>of</strong> contract provisions, as set forth below, when <strong>the</strong> violation is <strong>of</strong> a character so serious as to justify debarment action- (A) willful failure to perform in accordance with <strong>the</strong> specifications or delivery requirements in a contract (including violations <strong>of</strong> <strong>the</strong> Buy American Act with respect to o<strong>the</strong>r than construction contracts) ; (B) a history <strong>of</strong> failure to perform, or <strong>of</strong> unsatisfactory performance, in accordance with <strong>the</strong> terms <strong>of</strong> one or more contracts; provided, that such failure or unsatisfactory performance is within a reasonable period <strong>of</strong> time preceding <strong>the</strong> determination to debar. (Failure to perform or unsatisfactory performance caused by acts beyond <strong>the</strong> control <strong>of</strong> <strong>the</strong> contractor shall not be considered as a basis for debarment) ; (C) violation <strong>of</strong> <strong>the</strong> contractural provision against contingent fees; or (D) violation <strong>of</strong> <strong>the</strong> Gratuities clause, as determined by <strong>the</strong> Secretary in accordance with <strong>the</strong> provisions <strong>of</strong> <strong>the</strong> clause. (iii) for o<strong>the</strong>r cause <strong>of</strong> such serious and compelling nature, affecting responsibility as a Government contractor, as may be determined by <strong>the</strong> Secretary <strong>of</strong> <strong>the</strong> Department concerned to justify debarment; or (iv) debarment for any <strong>of</strong> <strong>the</strong> above causes by some o<strong>the</strong>r executive agency <strong>of</strong> <strong>the</strong> Government. (Such debarment may be based entirely upon <strong>the</strong> record <strong>of</strong> facts obtained by <strong>the</strong> original debarring agency, Or upon a combination <strong>of</strong> additional facts with <strong>the</strong> record <strong>of</strong> facts obtained by <strong>the</strong> original debarring agency.) re The regulation provides for a three-year maximum for a debarment, with shorter periods commensurate with <strong>the</strong> seriousness <strong>of</strong> <strong>the</strong> cause. Debarment may not be extended past <strong>the</strong> original period solely on <strong>the</strong> basis <strong>of</strong> initial findings. Notice <strong>of</strong> an extension must be given and <strong>the</strong> safeguards present in <strong>the</strong> initial debarment continue to apply. The rules require that written notice be given <strong>of</strong> <strong>the</strong> proposed action. Such notice must include <strong>the</strong> reasons why debarment is 18 LSPR 1-604.1.
Legal and Administrative Remedies 85 GSPR HEWPR HUD IBCA IFB NASA NASABCA NASA PR OFCC PCO RFP SCBCA SOW/S&D TCO TVA USAF U.S.C. VA VACAB VAPR • General Services Administration Procurement Regulation Department <strong>of</strong> Health, Education, and Welfare ProcurementRegulations Department <strong>of</strong> Housing and Urban Development Procurement Regulations Department <strong>of</strong> <strong>the</strong> Interior Board <strong>of</strong> Contract Appeals Invitation for bid National Aeronautics and Space Administration National Aeronautics and Space Administration Board <strong>of</strong> Contract Appeals National Aeronautics and Space Administration Procurement Regulations Office <strong>of</strong> Federal Contract Compliance Procurement Contracting Officer Request for proposal Small Claims Board <strong>of</strong> Contract Appeals Statement <strong>of</strong> Work/Specifications and Design Termination Contracting Officer Tennessee Valley Authority United States Air Force United States Code Veterans Administration Veterans Administration Board <strong>of</strong> Contract Appeals Veterans Administration Procurement Regulations
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