Subpart 5-1.6-Debarred and Ineligible Bidders SOURCE: The provisions of this Subpart 5-1.6 appear at 26 F.R. 6199, July 11, 1961, unless otherwise noted. § 5-1.602 Establishment and maintenance of a list of firms or individuals debarred or ineligible. (a) The Compliance Division shall establish and maintain a list of debarred or ineligible firms and individuals pursuant to § 1-1.602. This list shall be designated as the GSA Debarred Bidders List, and its use is mandatory on all GSA procuring activities. (b) (1) Publication of the GSA Debarred Bidders List shall be based, in the case of GSA administrative debarments on determinations made by the service performing the debarment, or confirmation of such determination by the Administrator (or his designee), and, in the case of statutory debarments, on appropriate notification by the Comptroller General, the Secretary of Labor or other debarring agency, or in the case of ineligibility due to violations of the nondiscrimination provisions of contracts, on appropriate notification by the Executive Vice Chairman, President's Committee on Equal Employment Opportunity. [26 F.R. 6199, July 11, 1961, as amended at 27 F.R. 7565, Aug. 1, 1962] § 5-1.603 Bases for debarment and ineligible list entry. All firms and individuals within the categories specified in § 1-1.603, and those which the Executive Vice Chairman of the President's Committee on Equal Employment Opportunity has declared ineligible (see Subpart 5-53.7), shall be placed on the GSA Debarred Bidders List by the Compliance Division as soon as official information is received of debarment or ineligibility. Administrative debarments under § 1-1.603 (d) are subject to determinations by GSA under § 5-1.606, pursuant to § 1-1.605. [27 F.R. 7565, Aug. 1, 1962] § 5-1.604 Treatment to be accorded firms or individuals in debarred or ineligible status. (a) A determination that an exception is essential to the public interest may be made by the Commissioner of the pro curing service for a specific procurement action only when a firm or individual is listed as debarred on the basis of § 11.603(d). In such cases, the contract folder shall be documented to reflect the determination and the justification therefor. (b) Bids or proposals shall not be solicited from concerns which have been found ineligible, as provided in § 11.604 (d), because they do not qualify as "manufacturers" or "regular dealers" within the meaning of section 1(a) of the Walsh-Healey Public Contracts Act, if the procurement is estimated to exceed $10,000 and is for the same materials, supplies, articles, or equipment with respect to which the ineligibility extends. (c) When circumstances indicate that a firm or individual is attempting to evade the prohibitions contained in § 1-1.604 and this § 5-1.604, and the contracting officer can establish identity between the suspect bidder and a debarred firm or individual, he shall apply the basic prohibitions and forward a statement of the circumstances to the Compliance Division. If the facts to confirm a suspected evasion are not available to the contracting officer, he shall document the circumstances and request the Compliance Division to investigate. If time permits, award should be withheld pending receipt of the results of the investigation. Suspicious circumstances may include such actions as change of address, use of multiple addresses, adoption of a new business name, indications that a debarred firm or individual has a controlling or active interest in a new enterprise, etc. (d) Bids shall not be invited, nor proposals solicited from firms or individuals which have been found ineligible by the President's Committee on Equal Employment Opportunity because of violations of the nondiscrimination provisions of Government contracts. [26 F.R. 6199, July 11, 1961, as amended at 27 F.R. 7565, Aug. 1, 1962] § 5-1.605 Causes and conditions applicable to determination of debarment by an executive agency. (a) Administrative debarments by GSA shall be made by the Commissioner of the procuring service primarily concerned in accordance with procedures set forth in § 5-1.606. (b) Debarment shall generally be § 5-1.606-53 Investigations. made for periods of not less than one year and not 'more than three years, depending on the seriousness of the offense. [26 F.R. 6199, July 11, 1961, as amended at 27 F.R. 6143, June 29, 1962] § 5-1.606 Agency procedure. § 5-1.606-50 GSA administrative debarments. Procedures governing GSA administrative debarments are authorized by § 1-1.603 (d). An administrative debarment is a final decision by GSA to debar and register the name of the debarred firm or individual on the GSA Debarred Bidders List. § 5-1.606-51 Debarment by other agencies. The Compliance Division shall review the bases for debarments made by other executive agencies for the purpose of determining whether debarments authorized by § 1-1.605 (a) (4), should be recommended. as (a) If debarment by the other agency was due to conviction for violation of law as set forth in § 1-1.605(a) (1) and (2), or was due to a violation of the Buy American Act (41 US.C. 10(b)), the Compliance Division shall notify the Commissioner primarily concerned, who shall take immediate action to debar. The ending of the period of debarment shall coincide with the date set by the original debarment action. (b) If debarment by the other agency was for cause (a) (3) under § 1-1.605, and if warranted as a result of review, the Compliance Division shall recommend debarment to the Commissioner primarily concerned. § 5-1.606-52 Collection and evaluation of information. The Compliance Division shall collect and evaluate information, developed by GSA and other agencies or otherwise, to determine whether an alleged offense or irregularity falls within the causes listed in § 1-1.605 (a) (1), (2), and (3), and, if warranted, shall recommend to the appropriate Commissioner that debarment proceedings be initiated. (a) When a procuring activity becomes suspicious of offenses or irregularities which might support debarment, a request for investigation shall be forwarded to the Compliance Division with a statement of the pertinent circumstances. (b) The Compliance Division shall make a thorough investigation of the circumstances as expeditiously as possible, and shall report the results to the service primarily concerned with a recommendation as to whether debarment proceedings should be instituted. The files of the Compliance Division compiled in support of such reports of investigation shall, upon request, be made available for review by the service primarily concerned. § 5-1.606-54 Determination to debar. The Commissioner of the service primarily concerned, after consultation with legal counsel, shall determine whether the facts are sufficient to warrant debarment. If a Commissioner decides to institute debarment proceedings, he shall send a letter by certified mail (return receipt requested) to the firm or individual proposed for debarment. The letter shall summarize the facts on which the debarment is predicated, specify a reasonable and definite period for the debarment, and advise that, unless a request for a hearing is received within 15 days from the date of receipt of such letter, the debarment will become effective when the 15-day period has elapsed. When debarment action is based on debarment by another agency, the firm or individual shall be so notified. However, no hearing is required in such cases, pursuant to § 1-1.605(b) (4) and (6). The Compliance Division shall be notified of this action. [27 F.R. 7565, Aug. 1, 1962] § 5-1.606-56 Hearings. Hearings requested in connection with debarment proceedings shall be conducted before the Administrator or his designee, referred to in this § 5-1.606-56 as the reviewing authority. An opportunity shall be afforded to the firm or individual to appear, with witnesses and counsel, to present facts or circumstances showing cause why such firm or individual should not be debarred. If the firm or individual elects not to appear, the reviewing authority shall make a decision based on the facts on record and such additional evidence as may be furnished by the parties involved. (a) The reviewing authority shall give notice of the date and place of hearing to the appropriate Commissioner and to the Office of General Counsel. (b) Hearings shall be held by the reviewing authority within 30 days after the receipt of the request for a hearing. unless the reviewing authority considers that additional time should be granted. (c) If a firm or individual who requested a hearing is determined by the reviewing authority to be responsible for any unreasonable delay in disposing of the matter, the reviewing authority shall authorize the Compliance Division to place such firm or individual on the GSA Debarred Bidders List pending final action by the reviewing authority. A copy of such notification shall be furnished to the Commissioner who initiated the debarment action. (d) After consideration of the facts, the reviewing authority shall notify the firm or individual of the final decision. [27 F.R. 6143, June 29, 1962] a hearing, or as the result of forfeiture of the right to be heard, the reviewing authority shall notify the firm or individual of the decision confirming the intended debarment, setting forth the period during which such debarment shall be effective. The period shall be equivalent to that originally imposed by the debarring Commissioner. If an intended debarment is not upheld by the reviewing authority, the reviewing authority shall so notify the firm or individual. Copies of such notification shall be furnished to the interested Commissioner, and to the Compliance Division for action to include the firm or individual in the GSA Debarred Bidders List or for retention without action, as appropriate. [27 F.R. 6143, June 29, 1962] § 5-1.606-58 Inquiries from debarred or ineligible bidders. Inquiries presented by debarred or ineligible bidders shall be referred, without comment, to the Office of General Counsel. [27 F.R. 7566, Aug. 1, 1962] § 5-1.607 General Services Administra. tion responsibility. [27 F.R. 6143, June 29, 1962] § 5-1.607-51 Consolidated List of Administrative Debarments by Execu tive Agencies. (a) The Compliance Division compiles and arranges for the distribution of the Consolidated List of Administrative Debarments by Executive Agencies, and provides necessary related background material to other agencies, as set forth in § 1-1.607, under Reports Control Symbol AA-5. (b) Notices issued by other agencies and furnished to GSA in accordance with 1-1.606(c) are collected, processed, and disseminated by the Compliance Division as set forth in § 1-1.606(e) and § 1-1.607. [27 F.R. 6143, June 29, 1962] § 5-1.704 Agency program direction and operations. § 5-1.704-1 Program direction. (a) The Office of the Assistant Administrator is responsible for the overall administration of the GSA small business program. (b) The legislative, public information, and business services aspects of the GSA small business program shall be carried out under the direction of the Office of the Assistant Administrator, in coordination with the Central Office operating services. (c) The procurement and contracting aspects of this program shall be carried out under the direction of Central Office operating services. (d) Field implementation of the public information and business services aspects of the program shall be effected by the regional Business Service Centers, under the technical direction and guidance of the Office of the Assistant Administrator, and under the direct administrative and operational control of the Regional Administrators. § 5-1.704-2 Program operations. (a) Each procuring activity and each Business Service Center shall use its best efforts to identify commodities and services where a potential exists for increasing the small business share of contract awards. Business Service Centers and contracting offices shall cooperate in de veloping effective methods for identifying such categories. (b) Each procuring activity shall arrange for the making of small business set-asides in accordance with the procedures contained in § 1-1.706. (c) Each Business Service Center shall keep all other Business Service Centers and the Director of Business Services and Small Business continuously informed on a timely basis as to the commodities and services identified under paragraph (a) of this section. (d) Each Business Service Center, with respect to the commodities and services identified under paragraph (a) of this section, and with respect to small business concerns doing business in such commodities and services in their regional areas, shall: (1) Take appropriate actions to publicize advance and current information about regional and national GSA business opportunities to the maximum extent feasible. (2) Provide maximum advance and current information, assistance, and counseling of such nature, extent, and timeliness as to enable small business concerns to take full advantage of the available GSA business opportunities and to compete for contracts. (3) Develop and conduct public information and business relation techniques designed to obtain maximum interest and participation of small business concerns. Such activity shall include, but not be limited to, the following: (i) Arranging for and participating in meetings with business groups such as Chambers of Commerce, trade associations and similar organizations, State development corporations, Governors' and Mayors' advisory groups, local business and civic organizations, and small business councils. (ii) Developing, preparing, and distributing informational material designed to stimulate interest on the part of trade publications and the local press, and other media. § 5-1.705-3 Screening of procurements. (a) Individual set-asides. Where SBA representatives are not available to screen proposed procurements and to initiate joint small business set-asides, unilateral small business set-asides shall be made by the contracting officer as appropriate. (b) Class set-asides. Class set-asides may be entered into jointly with SBA representatives for any group, type, or category of items. Joint class set-asides shall be effective until revoked or amended by agreement between the procuring activity and the SBA representative. Contracting officers shall review each joint class set-aside periodically, and initiate action for its extension, amendment, or revocation based on operating experience. When SBA representatives are not available, procuring activities shall periodically review individual set-asides made unilaterally pursuant to paragraph (a) of this section, and other appropriate procurements to develop recommendations for class set-asides. SBA representatives shall be requested to visit the procuring activity (or the data shall be forwarded to the SBA) for the purpose of initiating joint class set-asides as appropriate. (c) Contracts for construction, alteration, maintenance, and repair. An understanding has been reached with the Small Business Administration under which it is agreed that the Small Business Administration has initiated a joint set-aside for small business on each proposed contract for new construction, alteration, maintenance, or repair having an estimated value from $2,500 up to $500,000. When in the judgment of the contracting officer a particular contract falling within these dollar limits is determined unsuitable for a set-aside for exclusive small business participation, he shall notify the appropriate SBA representative of this decision. Unless SBA appeals the decision, pursuant to the provisions of § 1-1.706-2, the contracting officer shall proceed to process the procurement on an unrestricted basis. Proposed contracts for construction, alteration, maintenance, and repair having an estimated value of more than $500,000 shall be handled on a caseby-case basis pursuant to § 1-1.705-3 (a). § 5-1.706 Procurement set-asides for small business. § 5-1.706-1 General. (a) Where a small business set-aside is feasible under Subpart 1-1.7, such setaside shall be made unless a labor surplus area set-aside is required by Subpart 1-1.8. (b) When a total or partial small business set-aside is made, a statement to that effect shall be placed on the face of the invitation for bids. In this regard, the following statements are recommended for use, as appropriate: (1) Notice of total small business setaside applies to all items of this invitation. (2) Notice of total small business setaside applies to items ---- through -in this invitation. (3) The attached notice of partial small business set-aside (GSA Form 1773) applies to all items in this invitation. The form requires certain information to be furnished by the bidder. § 5-1.706-6 Partial set-asides. (a) The short-form notice of partial small business set-aside prescribed in FPR 1-1, 706-6(c) is printed on GSA Form 1773, Notice of Partial Small Business Set-Aside, together with spaces for each bidder to provide certain information required by the notice. When this short-form notice is used, GSA Form 1773 shall be made a part of invitations for bids and requests for proposals by means of a statement substantially as set forth in § 5-1.706-1(b). (b) Where the short-form notice has been used and bids or offers are received which appear designed to take unfair advantage of other bidders, by devices such as unrealistically low bids on mere token quantities, the matter shall be referred to the head of the procuring activity in the Central Office for resolution. |