48 CFR Part 1209 — Contractor Qualifications

PART 1209—CONTRACTOR QUALIFICATIONS Authority: 5 U.S.C. 301; 41 U.S.C. 1121(c)(3); 41 U.S.C. 1702; and 48 CFR 1.301 through 1.304. Source: 87 FR 61159, Oct. 7, 2022, unless otherwise noted. Subpart 1209.4—Debarment, Suspension, and Ineligibility 1209.400 Scope of subpart. This subpart provides DOT's policy and procedures for the debarment and suspension of contractors. 1209.403 Definitions. As used in this subpart— DOT Order 4200.5G Senior Accountable Official (SAO) for Suspension and Debarment Suspension and Debarment Coordinator (SDC) SAM.gov. Suspending and Debarring Official (SDO) https://www.transportation.gov/assistant-secretary-administration/procurement/suspension-and-debarment. 1209.405 Effect of listing. (a) The SDO is authorized to make a written determination of compelling reasons to solicit offers from, award contracts to, or consent to subcontract with contractors debarred, suspended, or proposed for debarment and that has an active exclusion record in the System for Award Management (SAM) in accordance with FAR 9.405. (e)(2) The SDO is authorized to make a written determination of compelling reasons to consider a bid or offer from a contractor whose name or company is included on the listing. (3) The SDO is authorized to make a written determination of compelling reasons for a contracting officer to consider proposals, quotations, or offers received from any listed contractor that have an active exclusion record in SAM, and that such proposals, quotations, or offers may be evaluated for award or included in the competitive range, and, if applicable, discussions conducted with a listed offeror as set forth in FAR 9.405(e)(3). 1209.405-1 Continuation of current contracts. (a) Notwithstanding the suspension, proposed debarment, or debarment of a contractor, contracting officers may continue contracts or subcontracts in existence at the time the contractor was suspended, proposed for debarment, or debarred, if authorized by the SDO and the SDO makes a written determination, consistent with the procedures described in FAR 9.405-1(a) setting forth the compelling reasons for continuing such contract(s) and placing order(s). (b) The SDO is delegated the authority on behalf of the Secretary of DOT to make the written determination required under FAR 9.405-1(b). 1209.405-2 Restrictions on subcontracting. (a) The SDO is delegated the authority on behalf of the Secretary of DOT to authorize contracting officers to consent to subcontracts with contractors debarred, suspended, or proposed for debarment as required by FAR 9.405-2(a). 1209.406 Debarment. 1209.406-1 General. (c) The OST Suspending and Debarring Official (SDO) and each OA-appointed SDO ( see (d)(1) The SDO's authority includes debarments from contracts for the purchase of Federal personal property pursuant to the Federal Management Regulation at 41 CFR 102-117.295 ( see 1209.406-3 Procedures. Contracting officers and contracting activities shall comply with DOT Order 4200.5G, Suspension and Debarment, and Ineligibility Policies, and this subpart to include the following procedures— (a) Investigation and referral. see (1) The DOT official OA code to identify the OA taking action is as follows: DOT (general) (DOT-OST); Federal Aviation Administration (DOT-FAA); Federal Highway Administration (DOT-FHWA); Federal Motor Carrier Safety Administration (DOT-FMCSA); Federal Railroad Administration (DOT-FRA); Federal Transit Administration (DOT-FTA); Maritime Administration (DOT-MARAD); National Highway Traffic Safety Administration (DOT-NHTSA); Pipeline and Hazardous Materials Safety Administration (DOT-PHMSA); Office of the Assistant Secretary for Research and Technology (OST-R); and Great Lakes St. Lawrence Development Corporation (GLS). (2) Name, address, and telephone number for the point of contact for the activity making the report. (3) Name and address of the contractor. (4) Names and addresses of the members of the board, principal officers, partners, owners, and managers. (5) Names and addresses of all known affiliates, subsidiaries, or parent firms, and the nature of the business relationship. (6) For each contract affected by the conduct being reported— (i) The contract number; (ii) Description of supplies or services; (iii) The amount; (iv) The percentage of completion; (v) The amount paid to the contractor; (vi) Whether the contract is assigned under the Assignment of Claims Act and, if so, to whom; and (vii) The amount due to the contractor. (7) For any other contracts outstanding with the contractor or any of its affiliates— (i) The contract number(s); (ii) The amount(s); (iii) The amounts paid to the contractor; (iv) Whether the contract(s) is assigned under the Assignment of Claims Act and, if so, to whom; and (v) The amount(s) due the contractor. (8) A complete summary of all pertinent evidence and the status of any legal proceedings involving the contractor. (9) An estimate of any damages sustained by the Government as a result of the contractor's action (explain how the estimate was calculated). (10) The comments and recommendations of the contracting officer and each higher-level contracting review authority regarding— (i) Whether to suspend or debar the contractor; (ii) Whether to apply limitations to the suspension or debarment; (iii) The period of any recommended debarment; and (iv) Whether to continue any current contracts with the contractor (explain why a recommendation regarding current contract is not included). (11) When appropriate, as an enclosure to the report— (i) A copy or extracts of each pertinent contract; (ii) Witness statements or affidavits; (iii) Copies of investigative reports; (iv) Certified copies of indictments, judgments, and sentencing actions; and (v) Any other appropriate exhibits or documents. (b) Decisionmaking process. (c) Notice of proposal to debar. (d) Debarring official's decision. (2) The SDO reviews submittals and case documents, and acts in accordance with DOT Order 4200.5G and the General DOT Guidelines for Suspension and Debarment, paragraph 12c. (i) The SDO, upon the request of the contractor proposed for debarment, shall, as soon as practicable, allow the contractor an opportunity to appear before the SDO to present information or argument, in person or through a representative. The contractor may supplement the oral presentation with written information and argument. This information submitted by a contractor proposed for debarment is known as a Presentation of Matters in Opposition as set forth in DOT Order 4200.5G. DOT shall conduct the proceeding in an informal manner and without requirement for a transcript. The SDO may use flexible procedures to allow a contractor to present matters in opposition via telephone or internet. If so, the debarring official should change the notice in paragraph (c) of this section to include those flexible procedures. (ii) If the SDO finds the contractor's or individual's submission in opposition to the proposed debarment raises a genuine dispute over facts material to the proposed debarment and the debarment action is not based on a conviction or civil judgment, the SDC shall submit to the SDO the information establishing the dispute of material facts. If the SDO agrees there is a genuine dispute of material facts, the SDO shall conduct a fact-finding proceeding or shall refer the dispute to a designee for resolution pursuant to 1209.470. The SDC shall provide the contractor or individual the disputed material fact(s). (iii) If the proposed debarment action is based on a conviction or civil judgment, or if there are no disputes over material facts, or if any disputes over material facts have been resolved pursuant to 1209.470, the SDO shall make a decision on the basis of all information available including any written findings of fact submitted by the designated fact finder, and oral or written arguments presented or submitted to the SDC by the contractor. (e) Notice of debarring official's decision. 1209.406-4 Period of debarment. (b) The SDC, in conjunction with the contracting officer, may submit a recommendation to the SDO to extend or reduce the period of debarment, or amend the scope of the debarment, imposed under FAR 9.406. 1209.407 Suspension. 1209.407-1 General. (b) For the purposes of FAR 9.407-1, the SDO is the suspending official under the Federal Management Regulation at 41 CFR 102-117.295. (d) The SDO is authorized to make a written determination of compelling reasons justifying continuing business dealings between the agency and a contractor that is suspended. However, in accordance with FAR 23.506(e), only the Secretary of Transportation may waive the suspension of contract payments, termination of a contract for default, or suspension of a contractor for actions under FAR subpart 23.5 and FAR 23.506. 1209.407-3 Procedures. Contracting officers and contracting activities shall comply with DOT Order 4200.5G, Suspension and Debarment, and Ineligibility Policies, and this subpart to include the following procedures— (a) Investigation and referral. see (b) Decisionmaking process. (c) Notice of suspension. (5) The SDO, upon the request of the contractor suspended, shall, as soon as practicable, allow the contractor an opportunity to appear before the SDO to present information or argument, in person or through a representative. The contractor may supplement the oral presentation with written information and argument. DOT shall conduct the proceeding in an informal manner and without requirement for a transcript. (6)(i) If the SDC finds the contractor's or individual's submission in opposition to the suspension raises a genuine dispute over facts material to the suspension, or for the purposes of FAR 9.407-3(b)(2), in actions not based on an indictment, the SDC shall submit to the SDO the information establishing the dispute of material facts. If the SDO agrees there is a genuine dispute of material facts, the SDO shall conduct a fact-finding proceeding or refer the dispute to a designee for resolution pursuant to 1209.470. The SDC shall provide the contractor or individual the information that established the dispute of material fact(s) in advance of the fact-finding proceeding, in the event the contractor would like to add to the facts prior to the decision of the SDO. (ii) If the suspension is based on a conviction or civil judgment, or if there are no disputes over material facts, or if any disputes over material facts have been resolved pursuant to 1209.470, the SDO shall make a decision on the basis of all information available including any written findings of fact submitted by the designated fact finder, and oral or written arguments presented or submitted by the contractor. The contractor may supplement the oral presentation with written information and argument. The proceeding will be conducted in an informal manner and without requirement for a transcript. (d) Suspending official's decision. 1209.470 Fact-finding procedures. The provisions of this section constitute the procedures to be used to resolve genuine disputes of material fact pursuant to 1209.406-3 and 1209.407-3. The SDC shall establish the date for the fact-finding hearing, normally to be held within 30 business days after notifying the contractor or individual that the SDO has determined a genuine dispute of material fact(s) exists. (a) The Government's representative and the contractor shall each have an opportunity to present evidence relevant to the genuine dispute(s) of material fact identified by the SDO. The contractor or individual may appear in person or through counsel at the fact-finding hearing and should address all defenses, contested facts, admissions, remedial actions taken, and, if a proposal to debar is involved, mitigating and aggravating factors. The contractor or individual may submit documentary evidence, present witnesses, and confront any person the agency presents. (b) Witnesses may testify in person. Witnesses will be reminded of the official nature of the proceedings and that any false testimony given is subject to criminal prosecution. Witnesses are subject to cross-examination. The fact-finding proceeding is an informal evidentiary hearing, during which the Rules of Evidence and Civil Procedure do not apply. Hearsay evidence may be presented and will be given appropriate weight by the fact-finder. (c) The proceedings shall be transcribed and a copy of the transcript shall be made available at cost to the contractor upon request, unless the contractor and the factfinder, by mutual agreement, waive the requirement for a transcript. (d) The fact-finder shall prepare a written finding(s) of fact for the record by a preponderance of the evidence for proposed debarments, and by adequate evidence for suspensions. A copy of the findings of fact shall be provided to the SDO, the Government's representative, and the contractor or individual. The SDO will consider the written findings of fact in the decision regarding the suspension or proposed debarment. 1209.471 Appeals. Based on the decision by the SDO, the respondent may elect to request reconsideration as provided for in paragraph (a) of this section. If the request for reconsideration is denied, the respondent may seek judicial review as provided for in paragraph (b) of this section. (a) Request for reconsideration. (b) Judicial review. Subpart 1209.5—Organizational and Consultant Conflicts of Interest 1209.507 Solicitation provisions and contract clause. 1209.507-270 Contract clauses. (a) In accordance with FAR 9.507-2, the contracting officer shall insert a clause substantially the same as the clause at 1252.209-70, Organizational and Consultant Conflicts of Interest, as applicable, in solicitations and contracts. (b) In accordance with FAR 9.507-2, the contracting officer shall insert a clause substantially the same as the clause at 1252.209-71, Limitation of Future Contracting, as applicable, in solicitations and contracts. Subpart 1209.6—Contractor Team Arrangements 1209.602 General. (c) Contracting officers shall require offerors to disclose teaming arrangements as a part of any offer. The teaming arrangement shall be evaluated as a part of overall prime contractor responsibility, as well as under the technical and/or management approach evaluation factor where applicable.

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