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vidually with respect to each grant unless the Federal agency designates a central location for submission.
(3) When the work of a grant is done by more than one State agency, thi certification of the State agency di rectly receiving the grant shall deemed to certify compliance for al workplaces, including those located in other State agencies.
(e)(1) For a grant of less than 30 day performance duration, grantees shal have this policy statement and pro gram in place as soon as possible, bu in any case by a date prior to the dat on which performance is expected to b completed.
(2) For a grant of 30 days or more per formance duration, grantees shall hav this policy statement and program i place within 30 days after award.
(3) Where extraordinary cii cumstances warrant for a specifi grant, the grant officer may determin a different date on which the polic statement and program shall be it place.
grant, as provided in appendix C to this part.
(2) Grantees are not required to make a certification in order to continue receiving funds under a grant awarded before March 18, 1989, or under a nocost time extension of such a grant. However, the grantee shall make a onetime drug-free workplace certification for a non-automatic continuation of such a grant made on or after March 18, 1989.
(b) Except as provided in this section, all grantees shall make the required certification for each grant. For mandatory formula grants and entitlements that have no application process, grantees shall submit a one-time certification in order to continue receiving awards.
(c) A grantee that is a State may elect to make one certification in each Federal fiscal year. States that previously submitted an annual certification are not required to make a certification for Fiscal Year 1990 until June 30, 1990. Except as provided in paragraph (d) of this section, this certification shall cover all grants to all State agencies from any Federal agency. The State shall retain the original of this statewide certification in its Governor's office and prior to grant award, shall ensure that a copy is submitted individually with respect to each grant, unless the Federal agency has designated a central location for submission.
(d)(1) The Governor of a State may exclude certain State agencies from the statewide certification and authorize these agencies to submit their own certifications to Federal agencies. The statewide certification shall name any State agencies so excluded.
(2) A State agency to which the statewide certification does not apply, or a State agency in a state that does not have a statewide certification, may elect to make one certification in each Federal fiscal year. State agencies that previously submitted a State agency certification are not required to make a certification for Fiscal Year 1990 until June 30, 1990. The State agency shall retain the original of this State agency-wide certification in its central office and, prior to grant award, shall ensure that a copy is submitted indi
8 44.635 Reporting of and employe
sanctions for convictions of crim nal drug offenses. (a) When a grantee other than an in dividual is notified that an employe has been convicted for a violation of criminal drug statute occurring in th workplace, it shall take the followin actions:
(1) Within 10 calendar days of receiv ing notice of the conviction, the grant ee shall provide written notice, includ ing the convicted employee's positio title, to every grant officer, or othe designee on whose grant activity th convicted employee was working, ur less a Federal agency has designated central point for the receipt of such no tifications. Notification shall includ the identification number(s) for each c the Federal agency's affected grants.
(2) Within 30 calendar days of receiv ing notice of the conviction, the grant ee shall do the following with respec to the employee who was convicted.
(i) Take appropriate personnel actio against the employee, up to and includ ing termination, consistent with re quirements of the Rehabilitation Ac of 1973, as amended; or
uire the employee to particifactorily in a drug abuse asir rehabilitation program apsuch purposes by a Federal,
local health, law enforcether appropriate agency. rantee who is an individual invicted for a violation of a irug statute occurring during ct of any grant activity shall
conviction, in writing, withndar days, to his or her Fedcy grant officer, or other desless the Federal agency has d a central point for the reach notices. Notification shall he identification number(s)
of the Federal agency's afunts. by the Office of Management and der control number 0991-0002)
(4) Failure to proceed in accordance with VA requirements or to comply with VA regulations;
(5) Construction deficiencies deemed by VA to be the participant's responsibility;
(6) Falsely certifying in connection with any VA program, whether or not the certification was made directly to VA;
(7) Commission of an offense or other cause listed in $44.305;
(8) Violation of any law, regulation, or procedure relating to the application for guaranty, or to the performance of obligations incurred pursuant to a commitment to guaranty;
(9) Making or procuring to be made any false statement for the purpose of influencing in any way an action of the Department;
(10) Imposition of a limited denial of participation by any other VA field facility;
(b) Indictment. A criminal indictment or information shall constitute adequate evidence for the purpose of limited denial of participation actions.
(c) Limited denial of participation. Imposition of a limited denial of participation by a VA field facility shall, at the discretion of any other VA field facility, constitute adequate evidence for a concurrent limited denial of participation. Where such a concurrent limited denial of participation is imposed, participation may be restricted on the same basis without the need for an additional conference or further hearing.
art G-Limited Denial of
58 FR 60385, Nov. 16, 1993, unless noted.
General. Facility Directors are authororder a limited denial of parn affecting any participant or or and its affiliates except and manufactured home manu3. In each case, even if the ofr violation is of a criminal, nt or other serious nature, the
to order a limited denial of ation shall be discretionary he best interests of the Govern
Causes for a limited denial of icipation. ruses. A limited denial of paron shall be based upon adequate e of any of the following causes: egularities in a participant's or tor's performance in the VA aranty program; jenial of participation in proadministered by the Department sing and Urban Development or partment of Agriculture, Farmme Administration; ailure to satisfy contractual obins or to proceed in accordance ontract specifications;
8 44.710 Scope and period of a limited
denial of participation. (a) Scope and Period. The scope of a limited denial of participation shall be as follows:
(1) A limited denial of participation extends only to participation in the VA Loan Guaranty Program and shall be effective only within the geographic jurisdiction of the office or offices imposing it.
(2) The sanction may be imposed for a period not to exceed 12 months except for unresolved construction deficiencies. In cases involving construction deficiencies, the builder may be excluded for either a period not to exceed 12 months or for an indeterminate period which ends when the deficiency (b) Notification of action. days, if no conference has quested, the official imposing ited denial of participation VA Central Office of the acti and of the fact that no confe been requested. If a confere quested within the 30-day p Central Office need not be po less a decision to affirm all or of the remaining period of ea issued. VA Central Office will VA field offices of sanction and still in effect under this s
has been corrected or otherwise resolved in a manner acceptable to VA.
(b) Effectiveness. The sanction shall be effective immediately upon issuance, and shall remain effective for the prescribed period. If the cause for the limited denial of participation is resolved before the expiration of the prescribed period, the official who imposed the sanction may terminate it. The imposition of a limited denial of participation shall not affect the right of the Department to suspend or debar any person under this part.
(c) Affiliates. An affiliate or organizational element may be included in a limited denial of participation solely on the basis of its affiliation, and regardless of its knowledge of or participation in the acts providing cause for the sanction. The burden of proving that a particular affiliate or organizational element is capable of meeting VA requirements and is currently a responsible entity and not controlled by the primary sanctioned party (or by an entity that itself is controlled by the primary sanctioned party) is on the affiliate or organizational element.
$ 44.712 Conference.
Upon receipt of a request i ference, the official imposing tion shall arrange such a with the participant or contr may designate another offici duct the conference. The De shall be given the opportun heard within 10 business days of the request. This confen cedes, and is in addition to, ti hearing provided if an appeal under $44.713. Although forma procedure do not apply to ference, the participant or a may be represented by cou may present all relevant ini and materials to the official ignee. After consideration of t mation and materials presente ficial shall, in writing, advise ticipant or contractor of the to withdraw, modify or affirm ited denial of participation. If sion is made to affirm all or a of the remaining period of e: the participant shall be advise right to request a formal he writing within 30 days of recei tice of decision. This decision issued promptly, but in no eve than 20 days after the confere receipt of materials.
8 44.711 Notice.
(a) Generally. A limited denial of participation shall be initiated by advising a participant or contractor, and any specifically named affiliate, by certified mail, return receipt quested:
(1) That the sanction is effective as of the date of the notice;
(2) Of the reasons for the sanction in terms sufficient to put the participant or contractor on notice of the conduct or transaction(s) upon which it is based;
(3) Of the cause(s) relied upon under $44.705 for imposing the sanction;
(4) Of the right to request in writing, within 30 days of receipt of the notice, a conference on the sanction, and the right to have such conference held within 10 business days of receipt of the request;
(5) Of the potential effect of the sanction and the impact on the participant's or contractor's participation in Departmental programs, specifying the program(s) involved and
the geographical area affected by the action.
filed within 30 days of receipt of the decision to affirm. If a hearing is requested, it shall be held in accordance with the procedures set forth at $$44.313 and 44.314. Where a limited denial of participation is followed by a suspension or debarment, the limited denial of participation shall be superseded and the appeal shall be heard solely as an appeal of the suspension or debarment.
APPENDIX A TO PART 44-CERTIFICATION
REGARDING DEBARMENT, SUSPEN-
Instructions for Certification 1. By signing and submitting this proposal, the prospective primary participant is providing the certification set out below.
2. The inability of a person to provide the tertification required below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set sat below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failare of the prospective primary participant to furnish a certification or an explanation shall disqualify such person from participation in this transaction.
3. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later determined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or defanlt.
4. The prospective primary participant shall provide immediate written notice to the department or agency to which this proposal is submitted if at any time the prospective primary participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.
5. The terms covered transaction, debarred, suspended, ineligible, lower tier covered transaction, participant, person, primary covered transaction, principal, proposal, and voluntarily ercluded, as used in this clause, have the meanings set out in the Definitions and Coverage sections of the rules implementing Executive Order 12549. You may contact the department or agency to which this proposal
is being submitted for assistance in obtaining a copy of those regulations.
6. The prospective primary participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction.
7. The prospective primary participant further agrees by submitting this proposal that it will include the clause titled "Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction,” provided by the department or agency entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions.
8. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that it is not proposed for debarment under 48 CFR part 9, subpart 9.4, debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the List of Parties Excluded from Federal Procurement and Nonprocurement Programs.
9. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of a participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.
10. Except for transactions authorized under paragraph 6 of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is proposed for debarment under 48 CFR part 9, subpart 9.4, suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default.
Certification Regarding Debarment, Suspension,
and Other Responsibility Matters--Primary Covered Transactions
(1) The prospective primary participant certifies to the best of its knowledge and belief, that it and its principals:
(a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded by any Federal department or agency;
(b) Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery. falsification or destruction of records, making false statements, or receiving stolen property;
(c) Are not presently indicted for or otherwise criminally or civilly charged by a goyernmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and
(d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State or local) terminated for cause or default.
(2) Where the prospective primary participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. [60 FR 33042, 33059, June 26, 1995)
tier participant learns that its certificatior was erroneous when submitted or had be come erroneous by reason of changed cir cumstances.
4. The terms covered transaction, debarred suspended, ineligible, lower tier covered trans action, participant, person, primary covere transaction, principal, proposal, and volun tarily excluded, as used in this clause, hav the meaning set out in the Definitions an Coverage sections of rules implementing E. ecutive Order 12549. You may contact th person to which this proposal is submitte for assistance in obtaining a copy of thos regulations.
5. The prospective lower tier participar agrees by submitting this proposal tha should the proposed covered transaction entered into, it shall not knowingly ente into any lower tier covered transaction wit a person who is proposed for debarmer under 48 CFR part 9, subpart 9.4, debarre suspended, declared ineligible, or voluntaril excluded from participation in this covere transaction, unless authorized by the depar ment or agency with which this transactio originated.
6. The prospective lower tier participar further agrees by submitting this propost that it will include this clause titled "Cer tification Regarding Debarment, Suspension Ineligibility and Voluntary Exclusion-Lowi Tier Covered Transaction," without mod fication, in all lower tier covered tran actions and in all solicitations for lower ti covered transactions.
7. A participant in a covered transactic may rely upon a certification of a prospe tive participant in a lower tier covere transaction that it is not proposed for deba ment under 48 CFR part 9, subpart 9. debarred, suspended, ineligible, or volui tarily excluded from covered transaction unless it knows that the certification is err neous. A participant may decide the meth and frequency by which it determines tl eligibility of its principals. Each participa may, but is not required to check the List Parties Excluded from Federal Procuremel and Nonprocurement Programs.
8. Nothing contained in the foregoing sha be construed to require establishment of system of records in order to render in goc faith the certification required by th clause. The knowledge and information of participant is not required to exceed thi which is normally possessed by a prudei person in the ordinary course of busine: dealings.
9. Except for transactions authorized unde paragraph 5 of these instructions, if a partii ipant in a covered transaction knowingly ei ters into a lower tier covered transactio with a person who is proposed for debarmer under 48 CFR part 9, subpart 9.4, suspendet debarred, ineligible, or voluntarily exclude
APPENDIX B TO PART 44-CERTIFICATION
REGARDING DEBARMENT, SUSPEN-
Instructions for Certification 1. By signing and submitting this proposal,
prospective lower tier participant is providing the certification set out below.
2. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment.
3. The prospective lower tier participant shall provide immediate written notice to the person to which this proposal is submitted if at any time the prospective lower