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notice of suspension, the respondent may submit, in person, in writing, or through a representative, information and argument in opposition to the suspension.
(b) Additional proceedings as to disputed material facts. (1) If the suspending official finds that the respondent's submission in opposition raises a genuine dispute over facts material to the suspension, respondent(s) shall be afforded an opportunity to appear with a representative, submit documentary evidence, present witnesses, and confront any witness the agency presents, unless:
(i) The action is based on an indictment, conviction or civil judgment, or
(ii) A determination is made, on the basis of Department of Justice advice, that the substantial interests of the Federal Government in pending or contemplated legal proceedings based on the same facts as the suspension would be prejudiced.
(2) A transcribed record of any additional proceedings shall be prepared and made available at cost to the respondent, upon request, unless the respondent and the agency, by mutual agreement, waive the requirement for a transcript.
made within 45 days after receipt of any information and argument submitted by the respondent, unless the suspending official extends this period for good cause.
(b) Additional proceedings neces. sary. (1) In actions in which additional proceedings are necessary to determine disputed material facts, written findings of fact shall be prepared. The suspending official shall base the deci. sion on the facts as found, together with any information and argument submitted by the respondent and any other information in the administra. tive record.
(2) The suspending official may refer matters involving disputed mate rial facts to another official for find. ings of fact. The suspending official may reject any such findings, in whole or in part, only after specifically determining them to be arbitrary or capricious or clearly erroneous.
(c) Notice of suspending official's de cision. Prompt written notice of the suspending official's decision shall be sent to the respondent.
8 620.413 Suspending official's decision.
The suspending official may modify or terminate the suspension (for example, see § 620.320(c) for reasons for reducing the period or scope of debarment) or may leave it in force. However, a decision to modify or terminate the suspension shall be without prejudice to the subsequent imposition of suspension by any other agency or debarment by any agency. The decision shall be rendered in accordance with the following provisions:
(a) No additional proceedings necessary. In actions: based on an indictment, conviction, or civil judgment; in which there is no genuine dispute over material facts; or in which additional proceedings to determine disputed material facts have been denied on the basis of Department of Justice advice, the suspending official shall make a decision on the basis of all the information in the administrative record, including any submission made by the respondent. The decision shall be
8 620.415 Period of suspension.
(a) Suspension shall be for a temporary period pending the completion of an investigation or ensuing legal, de barment, or Program Fraud Civil Remedies Act proceedings, unless terminated sooner by the suspending of ficial or as provided in paragraph (b) of this section.
(b) If legal or administrative proceedings are not initiated within 12 months after the date of the suspension notice, the suspension shall be terminated unless an Assistant Attorney General or United States Attor: ney requests its extension in writing, in which case it may be extended for an additional six months. In no event may a suspension extend beyond 18 months, unless such proceedings have been initiated within that period.
(c) The suspending official shall notify the Department of Justice of an impending termination of a suspension, at least 30 days before the 12month period expires, to give that Department an opportunity to request an extension.
8 620.420 Scope of suspension.
(c) The agency shall direct inquiries The scope of a suspension is the
concerning listed persons to the same as the scope of a debarment (see
agency that took the action. $ 620.325), except that the procedures
(d) Agency officials shall check the of $8 620.410 through 620.413 shall be
Nonprocurement List before entering used in imposing a suspension.
covered transactions to determine whether a participant in a primary
transaction is debarred, suspended, inSubpart E-Responsibilities of GSA,
eligible, or voluntarily excluded (Tel. NSF and Participants
#). 8 620.500 GSA responsibilities.
(e) Agency officials shall check the
Nonprocurement List before approv(a) In accordance with the OMB ing principals or lower tier particiguidelines, GSA shall compile, main pants where agency approval of the tain, and distribute a list of all persons principal or lower tier participant is who have been debarred, suspended, required under the terms of the transor voluntarily excluded by agencies action, to determine whether such under Executive Order 12549 and principals or participants are dethese regulations, and those who have barred, suspended, ineligible, or volunbeen determined to be ineligible.
8 620.510 Participants' responsibilities.
ticipant submits its proposal in (2) The type of action;
nection with a primary covered trans(3) The cause for the action;
action, except that States need only (4) The scope of the action;
complete such certification as to their (5) Any termination date for each
principals. Participants may decide listing; and
the method and frequency by which (6) The agency and name and tele
they determine the eligibility of their phone number of the agency point of
principals. In addition, each particicontact for the action.
pant may, but is not required to, check
the Nonprocurement List for its prin8 620.505 NSF responsibilities.
cipals (Tel. #). Adverse information on
the certification will not neces ly (a) The agency shall provide GSA
result in denial of participation. Howwith current information concerning
ever, the certification, and any addidebarments, suspension, determina
tional information pertaining to the tions of ineligibility, and voluntary ex certification submitted by the particiclusions it has taken. Until February pant, shall be considered in the admin18, 1989, the agency shall also provide istration of covered transactions. GSA and OMB with information con
(b) Certification by participants in cerning all transactions in which NSF
lower tier covered transactions. (1) has granted exceptions under $ 620.215
Each participant shall require participermitting participation by debarred,
pants in lower tier covered transacsuspended, or voluntarily excluded tions to include the certification in Appersons.
pendix B to this part for it and its (b) Unless an alternative schedule is principals in any proposal submitted agreed to by GSA, the agency shall in connection with such lower tier covadvise GSA of the information set ered transactions. forth in 8 620.500(b) and of the excep (2) A participant may rely upon the tions granted under $ 620.215 within certification of a prospective particifive working days after taking such ac pant in a lower tier covered transactions.
tion that it and its principals are not
debarred, suspended, ineligible, or voluntarily excluded from the covered transaction by any Federal agency, unless it knows that the certification is erroneous. Participants may decide the method and frequency by which they determine the eligiblity of their principals. In addition, a participant may, but is not required to, check the Nonprocurement List for its principals and for participants (Tel. #).
(c) Changed circumstances regarding certification. A participant shall provide immediate written notice to NSF if at any time the participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circuinstances. Participants in lower tier covered transactions shall provide the same updated notice to the participant to which it submitted its proposals.
Subpart F-Drug-Free Workplace
SOURCE: 54 FR 4964, Jan. 31, 1989, unless otherwise noted.
and as further defined by regulation at 21 CFR 1308.11 through 1308.15.
(2) "Conviction" means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes;
(3) “Criminal drug statute” means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, use or possession of any controlled substance;
(4) "Drug-free workplace” means a site for the performance of work done in connection with a specific grant at which employees the grantee are prohibited from engaging in the un lawful manufacture, distribution, dispensing, possession or use of a con trolled substance;
(5) “Employee" means the employee of a grantee directly engaged in the performance of work pursuant to the provisions of the grant;
(6) "Federal agency” or “agency" means any United States executive department, military department, government corporation, government con: trolled corporation, any other establishment in the executive branch (including the Executive Office of the President), or any independent regulatory agency;
(7) “Grant” means an award of fi. nancial assistance, including a cooper: ative agreement, in the form of money, or property in lieu of money, by a Federal agency directly to & grantee. The term grant includes block grant and entitlement grant programs, whether or not exempted from coverage under the grants management governmentwide regulation (“Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments”). The term does not include technical assistance which provides services instead of money, or other assistance in the form of loans, loan guarantees, interest subsidies, insurance, or direct appropriations; or any veterans' benefits to individuals, i.e., any benefit to veterans, their families
, or survivors by virtue of the service of a veteran in the Armed Forces of the United States;
$ 620.600 Purpose.
(a) The purpose of this subpart is to carry out the Drug-Free Workplace Act of 1988 by requiring that,
(1) A grantee, other than an individual, shall certify to the agency that it will provide a drug-free workplace;
(2) A grantee who is an individual shall certify to the agency that, as a condition of the grant, he or she will not engage in the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance in conducting any activity with the grant.
(b) Requirements implementing the Drug-Free Workplace Act of 1988 for contractors with the agency are found at 48 CFR Subparts 9.4, 23.5, and 52.2.
8 620.605 Definitions.
(a) Except as amended in this section, the definitions of 620.105 apply to this subpart.
(b) For purposes of this subpart
(1) “Controlled substance" means a controlled substance in schedules I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812),
grantee shall be subject to one or more of the following actions:
(1) Suspension of payments under the grant;
(2) Suspension or termination of the grant; and
(3) Suspension or debarment of the grantee under the provisions of this part.
(b) Upon issuance of any final decision under this part requiring debarment of a grantee, the debarred grantee shall be ineligible for award of any grant from any Federal agency for a period specified in the decision, not to exceed five years (see 8 620.320(a)(2) of this part).
(8) “Grantee" means a person who 2001
applies for or receives a grant directly Eind
from a Federal agency; LOR
(9) "Individual" means a natural ten
person. Deten 8620.610 Coverage. Org
(a) This subpart applies to any grantee of the agency.
(b) This subpart applies to any _re, i
grant, except where application of this subpart would be inconsistent with the international obligations of the United States or the laws or regulations of a
foreign government. Fork
(c) The provisions of Subparts A, B, STA
C, D and E of this part apply to matante
ters covered by this subpart, except the
where specifically modified by this ution
subpart. In the event of any conflict between provisions of this subpart and
other provisions of this part, the proemail
visions of this subpart are deemed to ed i
control with respect to the implementation of drug-free workplace require
ments concerning grants. age cutir
$ 620.615 Grounds for suspension of payment
ments, suspension or termination of
grants, or suspension or debarment. A grantee shall be deemed in violation of the requirements of this sub
part if the agency head or his or her nt ma
official designee determines, in writing, that,
(a) The grantee has made a false cer
tificaiton under 620.630; for
(b) The grantee has violated the certification by failing to carry out the requirements of subparagraphs (A.)(a)-(g) of the certification for grantees other than individuals (Alternate I to Appendix C) or by failing to carry out the requirements of the certification for grantees who are individuals (Alternate II to Appendix C); or
(c) Such a number of employees of the grantee have been convicted of violations of criminal drug statutes for violations occurring in the workplace as to indicate that the grantee has failed to make a good faith effort to provide a drug-free workplace.
8 620.625 Exception provision.
The agency head may waive with respect to a particular grant, in writing, a suspension of payments under a grant, suspension or termination of a grant, or suspension or debarment of a grantee if the agency head determines that such a waiver would be in the public interest. This exception authority cannot be delegated to any other official.
ment ner & ranch te d
8 620.630 Grantees' responsibilities.
(a) As a prior condition of being awarded a grant, each grantee shall make the appropriate certification to the agency, as provided in Appendix C to this part.
(b) Except as provided in this paragraph, a grantee shall make the required certification for each grant. A grantee that is a State may elect to submit an annual certification to each Federal agency from which it obtains grants in lieu of certifications for each grant during the year covered by the certification.
(c) Grantees are not required to provide a certification in order to continue receiving funds under a grant awarded before the effective date of this subpart or under a no-cost time extension of any grant.
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APPENDIX A-CERTIFICATION REGARD
ING DEBARMENT, SUSPENSION, AND
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 certification 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 out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure 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 of default.
4. The prospective primary participant shall privide immediate written notice to the department or agency to whom 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 excluded," 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 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 "Certifi. cation Regarding Debarment, Suspension, Ineligibility and Voluntary ExclusionLower 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 debarred, suspend. ed, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A partici
. pant 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 Nonprocurement List (Tel. #).
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 & participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is 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, Suspen.
sion, 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 from covered transactions by any Federal department of 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 of: fense in connection with obtaining, attempting to obtain, or performing a public (Feder: al, State of 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,