[Federal Register: December 20, 2004 (Volume 69, Number 243)]
[Rules and Regulations]
[Page 76347-76350]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20de04-28]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 9, 22, 28, 44, and 52
[FAC 2001-26; FAR Case 2002-023; Item II]
RIN 9000-AJ78
Federal Acquisition Regulation; Excluded Parties List System
Enhancement
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to publish an
electronic list of parties excluded from doing business with the
Federal Government online identified as the Excluded Parties List
System (EPLS). This will obviate the need to publish the hard copy of
the List of Parties Excluded from Federal Procurement and
Nonprocurement Programs (List of Parties) produced by the Government
Printing Office.
DATES: Effective Date:January 19, 2005.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755
for information pertaining to status or publication schedules. For
clarification of content, contact Mr. Craig Goral, Procurement Analyst,
at (202) 501-3856. Please cite FAC 2001-26, FAR case 2002-023.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule incorporates the Excluded Parties List System into
the FAR and enables agencies to directly enter data on parties
suspended, proposed for debarment, debarred, declared ineligible, or
excluded or disqualified under the nonprocurement common rule by
agencies or the Government Accountability Office. GSA maintains that
direct entry by the acting agency will improve the reliability of the
system, eliminate the need for a hard copy list, provide access to the
archival data, and enhance the ability to verify entries by permitting
a search by exact name and social security number where the agencies
entering the data have the authority to collect, retain, and publish
the party's social security number.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 68 FR 67353, December 1, 2003. The Councils received
comments in response to the proposed rule from six respondents. Several
respondents concurred in the rule as written. Other comments are
categorized as follows:
1. One respondent recommended that the names of the parties listed
in the EPLS be linked to the Central Contractor Registry (CCR)
accessible on the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.ccr.gov/index.cfm. The
Councils partially concur; however, in light of impending review of the
CCR and the Business Partner Network (BPN) by their Program Manager,
within the next six months to ascertain the capabilities of these
systems, no change was made at the present time.
2. One respondent pointed out a technological glitch in conducting
searches using the EPLS search engine for a field for DUNS number that
is not a required entry. He points out that if the searcher has a DUNS
number and searches for that given DUNS number but the agency data
entry person has not entered the number, the research results will
indicate no such entry or ``No records were found matching this
criteria.'' Searchers could readily interpret this search engine
response as an indication that the party to which Dun and Bradstreet
assigned a DUNS number is not listed in EPLS when what such search
results could also mean is that there is no data actually entered into
a non-mandatory field. He suggested adding a cautionary note to FAR
9.404 or 9.105-1(c)(1). The Councils acknowledge the validity of his
concern but decline to add a cautionary note to the FAR. The Councils
acknowledge that while obtaining a DUNS number is a
[[Page 76348]]
requirement in many areas within which one ``conducts business with the
government,'' it is not yet a universal requirement. For instance, OMB
has issued guidance for its use by grantees but the requirement does
not extend to sub-recipients. The Councils also noted that his concern
may be equally applicable to any field where entry is optional or not
required. GSA has been requested to modify the automated response when
a searcher searches on data possibly entered into an optional/not
required field, so that the search engine response states words to the
effect of ``No records were found matching this criteria; however, you
have searched for data contained in a non-mandatory field. A negative
response may only indicate that no data matching your search criterion
has been entered in the field DUNS number field or SSN/TIN field. A
search on other required fields is recommended.''
3. One respondent made five suggestions addressing broad policy
changes in the suspension and debarment system. The respondent stated
that the EPLS has not been adequately applied or uniformly enforced
against large and small contractors and recommends five changes to
improve the suspension and debarment system:
a. Create a centralized information database that should be
consulted before awarding a contract or making a suspension and
debarment system.
b. Require a contractor to disclose current suspensions or
debarment, Federal or state litigation initiated against them in the
past 3 years, and any Administrative Agreements the contractor is
currently implementing.
c. Require an agency debarment official to use suspension and
debarment actions equally against large and small contractors or to
justify in writing a determination to do business with a nonresponsible
contractor.
d. Amend the FAR to require mandatory suspension or debarment for a
contractor that either had been criminally convicted or had a civil
judgment entered against them for more than once in a three-year
period.
e. Empower the Interagency Suspension and Debarment Committee
(ISDC) to coordinate with the Federal agency taking a leadership role
in a suspension or debarment case (especially with a repeat offender)
and require the Interagency Committee to submit semi-annual reports to
Congress regarding suspension and debarment decisions.
Because these comments lay outside the scope of the rule and
addressed basic principles and policies leading to decisions to exclude
parties rather than with the procedural changes in the operation of the
electronic system, no change to the final rule is required. However, we
will bring these comments to the attention of the ISDC.
4. One respondent had a list of comments regarding errors in
citation and conflicts between definitions used in the FAR and the
Nonprocurement Common Rule (NCR) published November 26, 2003 (68 FR
66553). The Councils acknowledge the definitions used in the NCR, but
do not concur with the recommended changes to the proposed rule in the
FAR. The FAR terminology, although not identical to the NCR
terminology, is not entirely inconsistent. The FAR uses the specific
terms ``suspension,'' ``debarment,'' or ``proposed for debarment''
which are also used in the NCR, but for which the NCR has provided an
overall term of ``excluded,'' which the FAR does not use. The FAR uses
the term ``ineligible'' (defined in FAR 2.101) rather than the
comparable term ``disqualified'' used in the NCR, but the NCR also uses
the term ``ineligible'' to cover both ``excluded'' and ``ineligible.''
Therefore, the actions described as ``ineligible'' in the FAR are also
``ineligible'' under the NCR, although the NCR uses the term more
broadly. The term ``ineligible'' has been used for many years in the
FAR, and is imbedded in the ``Procurement Cause and Treatment Codes''
and in agency supplements such as the Defense Federal Acquisition
Regulation Supplement. The Councils consider that it would be
unnecessarily disruptive to remove this term from the FAR. As stated in
paragraph (b) of FAR 9.400, although FAR Subpart 9.4 covers the listing
of ineligible contractors and the effect of this listing, it does not
prescribe policies and procedures governing declarations of
ineligibility. The main thing a contracting officer needs to know is
the effect of being listed in the ``Excluded Parties List System,'' not
the underlying basis for the listing, and whether the party is
considered ``ineligible'' or ``disqualified.'' The contracting officer
also needs to know the effect of being listed and may glean this from
consultation with the cause and treatment codes. Accordingly, the final
rule retains the current definition of ``ineligible'' in the FAR and
deletes the NCR definitions of ``disqualified'' and ``excluded or
exclusion'' which appeared in the proposed rule. However, the final
rule adds ``or disqualified under the Nonprocurement Common Rule'' to
paragraph (b)(1) of FAR 9.404. The respondent also noted that the
proposed rule also used the definition ``covered transactions'' but no
definition was provided and that the statutory citations to the listing
of violating facilities in the Clean Water Act and Clean Air Act were
erroneous in the definition of ``excluded or exclusion.'' Because the
final rule deletes this definition, no change has been made, although
the respondent was correct in noting the citations were wrong. Lastly,
the respondent recommended that the word ``generally'' be added to
paragraph (c)(5) of FAR 9.404 to occasions where 5 working days may be
insufficient. The final rule includes the adverb but notes that posting
the data beyond the five days provided should occur rarely.
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 Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 rule only makes
changes in the way GSA manages and maintains the list of excluded
parties. It does not change the criteria for inclusion on the list or
the effect of the list on award or administration of contracts.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR 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 Parts 2, 9, 28, 44, and 52
Government procurement.
Dated: December 9, 2004.
Laura Auletta,
Director, Contract Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 9, 22, 28, 44, and
52 as set forth below:
0
1. The authority citation for 48 CFR parts 2, 9, 22, 28, 44, and 52 is
revised to read as follows:
Authority: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137;
and 42 U.S.C. 2473(c).
[[Page 76349]]
PART 2--DEFINITIONS OF WORDS AND TERMS
0
2. Amend section 2.101 in paragraph (b)(2) by adding, in alphabetical
order, the definition ``Excluded Parties List System''; and removing
the definition ``List of Parties Excluded from Federal Procurement and
Nonprocurement Programs.'' The added definition reads as follows:
2.101 Definitions.
* * * * *
(b) * * *
Excluded Parties List System means an electronic database
maintained and posted by the General Services Administration containing
the list of all parties suspended, proposed for debarment, debarred,
declared ineligible, or excluded or disqualified under the
nonprocurement common rule by agencies, Government corporations, or by
the Government Accountability Office.
* * * * *
PART 9--CONTRACTOR QUALIFICATIONS
0
3. Amend section 9.105-1 by revising paragraph (c)(1) to read as
follows:
9.105-1 Obtaining information.
* * * * *
(c) * * *
(1) The Excluded Parties List System maintained in accordance with
Subpart 9.4.
* * * * *
0
4. Amend section 9.207 by revising paragraph (a)(9) to read as follows:
9.207 Changes in status regarding qualification requirements.
(a) * * *
(9) The source is on the Excluded Parties List System (see Subpart
9.4); or
* * * * *
0
5. Revise section 9.404 to read as follows:
9.404 Excluded Parties List System.
(a) The General Services Administration (GSA)--
(1) Operates the web-based Excluded Parties List System (EPLS);
(2) Provides technical assistance to Federal agencies in the use of
the EPLS; and
(3) Includes in the list the name and telephone number of the
official responsible for its maintenance and distribution.
(b) The EPLS includes the--
(1) Names and addresses of all contractors debarred, suspended,
proposed for debarment, declared ineligible, or excluded or
disqualified under the nonprocurement common rule, with cross-
references when more than one name is involved in a single action;
(2) Name of the agency or other authority taking the action;
(3) Cause for the action (see 9.406-2 and 9.407-2 for causes
authorized under this subpart) or other statutory or regulatory
authority;
(4) Effect of the action;
(5) Termination date for each listing;
(6) DUNS No.;
(7) Social Security Number (SSN), Employer Identification Number
(EIN), or other Taxpayer Identification Number (TIN), if available; and
(8) Name and telephone number of the agency point of contact for
the action.
(c) Each agency must--
(1) Obtain password(s) from GSA to access the EPLS for data entry;
(2) Notify GSA in the event a password needs to be rescinded (e.g.,
when an agency employee leaves or changes function);
(3) Enter the information required by paragraph (b) of this section
within 5 working days after the action becomes effective;
(4) Determine whether it is legally permitted to enter the SSN,
EIN, or other TIN, under agency authority to suspend or debar;
(5) Update EPLS, generally within 5 working days after modifying or
rescinding an action;
(6) In accordance with internal retention procedures, maintain
records relating to each debarment, suspension, or proposed debarment
taken by the agency;
(7) Establish procedures to ensure that the agency does not solicit
offers from, award contracts to, or consent to subcontracts with
contractors whose names are in the EPLS, except as otherwise provided
in this subpart;
(8) Direct inquiries concerning listed contractors to the agency or
other authority that took the action; and
(9) Contact GSA for technical assistance with the EPLS, via the
support e-mail address or on the technical support phone line available
at the EPLS web site provided in paragraph (d) of this section.
(d) The EPLS is available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://epls.gov.
9.405 [Amended]
0
6. Amend section 9.405 by--
a. Removing from paragraph (b) ``on the List of Parties Excluded
from Federal Procurement and Nonprocurement Programs'' and adding ``in
the EPLS'' in its place; and
b. Removing from paragraphs (d)(1) and (d)(4) ``List of Parties
Excluded from Federal Procurement and Nonprocurement Programs'' and
adding ``EPLS'' in their place.
9.405-2 [Amended]
0
7. Amend section 9.405-2 by removing from paragraphs (b) introductory
text, (b)(2), and (b)(3) ``on the List of Parties Excluded from Federal
Procurement and Nonprocurement Programs'' and adding ``in the EPLS'' in
their place.
PART 22--APPLICATIONS OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
22.1025 [Amended]
0
8. Amend the first sentence of section 22.1025 by removing ``List of
Parties Excluded from Federal Procurement and Nonprocurement Programs''
and adding ``Excluded Parties List System'' in its place.
PART 28--BONDS AND INSURANCE
28.203-7 [Amended]
0
9. Amend section 28.203-7 in paragraphs (c) and (d) by removing ``on
the List of Parties Excluded from Federal Procurement and
Nonprocurement Programs'' and adding ``in the Excluded Parties List
System'' in their place.
PART 44--SUBCONTRACTING POLICIES AND PROCEDURES
44.202-2 [Amended]
0
10. Amend section 44.202-2 in paragraph (a)(13) by removing ``on the
List of Parties Excluded from Federal Procurement and Nonprocurement
Programs'' and adding ``in the Excluded Parties List System'' in its
place.
44.303 [Amended]
0
11. Amend section 44.303 in paragraph (c) by removing ``List of Parties
Excluded from Federal Procurement and Nonprocurement Programs'' and
adding ``Excluded Parties List System'' in its place.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.209-6 [Amended]
0
12. Amend section 52.209-6 by revising the date of the clause to read
``(JAN 2005)'' removing from the introductory text of paragraph (c)
``List of Parties Excluded from Federal Procurement and Nonprocurement
Programs'' and adding ``Excluded Parties List System'' in its place;
and removing from paragraphs (c)(2) and (c)(3) ``on the List of Parties
Excluded from Federal Procurement and Nonprocurement Programs'' and
adding ``in the Excluded Parties List System'' in their place.
[[Page 76350]]
52.213-4 [Amended]
0
13. Amend section 52.213-4 by revising the date of the clause to read
``(JAN 2005)''; and by removing from paragraph (b)(2)(i) of the clause
``(July 1995)'' and adding ``(JAN 2005)'' in its place.
[FR Doc. 04-27634 Filed 12-17-04; 8:45 am]