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$ 1264.137, consideration of the appeal ficer for consideration of such addishall be stayed automatically pending tional evidence. resolution of the motion for reconsid- (i) The authority head may affirm. eration.

reduce, reverse, compromise, remand, (2) If a motion for reconsideration is or settle any penalty or assessment, timely filed, a notice of appeal must be determined by the presiding officer in filed within 30 days after the presiding any initial decision. officer denies the motion or issues a (k) The authority head shall revised initial decision, whichever ap promptly serve each party to the plies.

appeal with a copy of the decision of (3) If no motion for reconsideration the authority head. At the same time is timely filed, a notice of appeal must the authority head shall serve the debe filed within 30 days after the pre fendant with a statement describing siding officer issues the initial deci. the defendant's right to seek judicial sion.

review. (4) The authority head may extend (1) Unless a petition for review is the initial 30-day period for an addi- filed as provided in 31 U.S.C. 3805, tional 30 days if the defendant files

after a defendant has exhausted all with the authority head a request for

administrative remedies under this an extension within the initial 30-day

part and within 60 days after the date period and shows good cause.

on which the authority head serves (c) If the defendant files a timely the defendant with a copy of the aunotice of appeal with the authority

thority head's decision, a determinahead and the time for filing motions

tion that a defendant is liable under for reconsideration under $ 1264.137 $ 1264.102 is final and is not subject to has expired, the presiding officer shall

judicial review. forward the record of the proceeding to the authority head.

(52 FR 39498, Oct. 22, 1987, as amended at (d) A notice of appeal shall be ac

54 FR 600, Jan. 9, 1989) companied by a written brief specify

$ 1264.139 Stays ordered by the Departing exceptions to the initial decision and reasons supporting the excep

ment of Justice.

If at any time the Attorney General (e) The representative for the Gov- or an Assistant Attorney General desernment may file a brief in opposition

ignated by the Attorney General to exceptions within 30 days of receiv transmits to the authority head a writing the notice of appeal and accompa ten finding that continuation of the nying brief.

administrative process described in (f) There is no right to appear per. this part with respect to a claim or sonally before the authority head. statement may adversely affect any

(g) There is no right to appeal any pending or potential criminal or civil interlocutory ruling by the presiding

action related to such claim or stateofficer.

ment, the authority head shall stay (h) In reviewing the initial decision,

the process immediately. If the procthe authority head shall not consider ess is before the presiding officer, the any objection that was not raised

authority head shall promptly transbefore the presiding officer unless a mit the finding to the presiding offidemonstration is made of extraordi

cer, who, in turn, must stay the pronary circumstances causing the failure

ceeding and give notice to all parties to raise the objection.

and their representatives. The author(i) If any party demonstrates to the

ity head may order the process resatisfaction of the authority head that

sumed only upon receipt of the writadditional evidence not presented at

ten authorization of the Attorney such hearing is material and that

hearing is material and that General. there were reasonable grounds for the failure to present such evidence at

8 1264.140 Stay pending appeal. such hearing, the authority head shall (a) An initial decision is stayed autoremand the matter to the presiding of- matically pending disposition of a


motion for reconsideration or of an appeal to the authority head.

(b) No administrative stay is avail. able following a final decision of the authority head. 8 1264.141 Judicial review.

Section 3805 of Title 31, United States Code, authorizes judicial review by an appropriate United States District Court of a final decision of the authority head imposing penalties or assessments under this part and specifies the procedures for such review. § 1264.142 Collection of civil penalties and

assessments. Sections 3806 and 3808(b) of Title 31, United States Code, authorize actions for collection of civil penalties and assessments imposed under this part and specify the procedures for such actions. § 1264.143 Right to administrative offset.

The amount of any penalty or assessment which has become final, or for which a judgment has been entered under § 1264.141 or $ 1264.142, or any amount agreed upon in a compromise or settlement under $ 1264.145, may be collected by administrative offset under 31 U.S.C. 3716, except that an administrative offset may not be made under this subsection against a refund of an overpayment of Federal taxes, then or later owing by the United States to the defendant.

the presiding officer issues an initial decision.

(c) The authority head has exclusive authority to compromise or settle a case under this part at any time after the date on which the presiding officer issues an initial decision, except during the pendency of any judicial review under § 1264.141 or during the pendency of any civil action to collect penalties and assessments under


(d) The Attorney General has exclusive authority to compromise or settle a case under this part during the pendency of any judicial review under 31 U.S.C. 3805 or of any civil action to recover penalties and assessments under 31 U.S.C. 3806.

(e) The investigating official may recommend settlement terms to the reviewing official, the authority head, or the Attorney General, as appropriate. The reviewing official may recommend settlement terms to the authority head, or the Attorney General, as appropriate.

(f) Any compromise or settlement must be in writing.

8 1264.146 Limitations.

(a) The notice of hearing with re. spect to a claim or statement must be served in the manner specified in $ 1264.107 within 6 years after the date on which such claim or statement is made.

(b) If the defendant fails to file a timely answer, service of a notice under $1264.109(b) shall be deemed a notice of hearing for purposes of this section.

(c) The statute of limitations may be extended by agreement of the parties.

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§ 1264.145 Compromise or settlement.

(a) Parties may make offers of compromise or settlement at any time, including proposals for alternative dispute resolution.

(b) The reviewing official has the exclusive authority to compromise or settle a case under this part at any time after the date on which the reviewing official is permitted to refer allegations of liability to a presiding officer and before the date on which

In accordance with the provisions of 14 CFR 1264.106, you are hereby notified that the Chairperson, NASA Board of Contract Appeals (BCA), or designee, in addition to other duties, upon your consent, may conduct any or all proceedings as the presiding officer, pursuant to 14 CFR Part 1264 which

Sec. 1265.315 Settlement and voluntary exclu

sion. 1265.320 Period of debarment. 1265.325 Scope of debarment.

implements the Program Fraud Civil Penalties Act of 1986.

You should be aware that your decision to consent, or not to consent, to the referral of this case to the NASA/BCA must be entirely voluntary. Only if you and the authority head consent to this reference will either the Chairperson or the designee to whom the case may be assigned be informed of your decision.

An appeal from a decision by the presiding officer under this consent procedure may be taken in the same manner as an appeal from a decision by any other presiding officer, as provided in 14 CFR 1264.136(d), 1264.137, 1264.138, and 1264.141.

If you consent, you must sign, date, and return this form within the 30-day period provided for your answer (see 14 CFR 1264.108, 1264.109). I consent: (Signature of person alleged to be liable)

Subpart D—Suspension 1265.400 General. 1265.405 Causes for suspension. 1265.410 Procedures. 1265.411 Notice of suspension. 1265.412 Opportunity to contest suspen

sion. 1265.413 Suspending official's decision. 1265.415 Period of suspension. 1265.420 Scope of suspension.

Subpart E-Responsibilities of GSA, Agency

and Participants

1265.500 GSA responsibilities. 1265.505 NASA responsibilities. 1265.510 Participants' responsibilities.

(Print name)

(Date of signature)

Subpart F-Drug-Free Workplace Requirements



Subpart A-General

Sec. 1265.100 Purpose. 1265.105 Definitions. 1265.110 Coverage. 1265.115 Policy.

Subpart B-Effect of Action

1265.600 Purpose. 1265.605 Definitions. 1265.610 Coverage. 1265.615 Grounds for suspension of pay

ments, suspension or termination of

grants, or suspension or debarment. 1265.620 Effect of violation. 1265.625 Exception provision. 1265.630 Certification requirements and

procedures. 1265.635 Reporting of and employee sanc

tions for convictions of criminal drug of







QUIREMENTS AUTHORITY: E.O. 12549; Secs. 5151-5160 of the Drug-Free Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701 et seq.); National Aeronautics and Space Act, Pub. L. 85-568, July 29, 1958, as amended, sec. 203(c)(1).

SOURCE: 53 FR 19177, 19204, May 26, 1988, unless otherwise noted.

CROSS REFERENCE: See also Office of Management and Budget notice published at 55 FR 21679, May 25, 1990.

1265.200 Debarment or suspension. 1265.205 Ineligible persons. 1265.210 Voluntary exclusion. 1265.215 Exception provision. 1265.220 Continuation of covered transac

tions. 1265.225 Failure to adhere to restrictions.

Subpart C-Debarment

1265.300 General. 1265.305 Causes for debarment. 1265.310 Procedures. 1265.311 Investigation and referral. 1265.312 Notice of proposed debarment. 1265.313 Opportunity to contest proposed

debarment. 1265.314 Debarring official's decision.

EDITORIAL NOTE: For additional informa. tion, see related documents published at 52 FR 20360, May 29, 1987, 53 FR 19160, May 26, 1988, and 53 FR 34474 September 6, 1988.

Subpart A-General

8 1265.100 Purpose.

(a) Executive Order 12549 provides that, to the extent permitted by law, Executive departments and agencies shall participate in a governmentwide system for nonprocurement debarment and suspension. A person who is debarred or suspended shall be excluded from Federal financial and nonfinancial assistance and benefits under Federal programs and activities. Debarment or suspension of a partici. pant in a program by one agency shall have governmentwide effect.

(b) These regulations implement section 3 of Executive Order 12549 and the guidelines promulgated by the Office of Management and Budget under section 6 of the Executive order by:

(1) Prescribing the programs and activities that are covered by the governmentwide system;

(2) Prescribing the governmentwide criteria and governmentwide minimum due process procedures that each agency shall use;

(3) Providing for the listing of debarred and suspended participants, participants declared ineligible (see definition of ineligible in § 1265.105(i)), and participants who have voluntarily excluded themselves from participation in covered transactions

(4) Setting forth the consequences of a debarment, suspension, determination of ineligibility, or voluntary exclusion; and

(5) Offering such other guidance as necessary for the effective implementation and administration of the governmentwide system.

(c) Although these regulations cover the listing of ineligible participants and the effect of such listing, they do not prescribe policies and procedures governing declarations of ineligibility.


8 1265.105 Definitions.

(a) Adequate evidence. Information sufficient to support the reasonable belief that a particular act or omission has occurred.

(b) Affiliate. Persons are affiliates of each another if, directly or indirectly, either one controls or has the power to control the other, or, a third person controls or has the power to control both. Indicia of control include, but are not limited to: interlocking management or ownership, identity of interests among family members, shared facilities and equipment, common use of employees, or a business entity organized following the suspension or debarment of a person which has the same or similar management, ownership, or principal employees as the suspended, debarred, ineligible, or voluntarily excluded person.

(c) Agency. Any executive department, military department or defense agency or other agency of the executive branch, excluding the independent regulatory agencies.

(d) Civil judgment. The disposition of a civil action by any court of competent jurisdiction, whether entered by verdict, decision, settlement, stipulation, or ctherwise creating a civil liability for the wrongful acts complained of; or a final determination of liability under the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12).

(e) Conviction. A judgment of conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, including a plea of nolo contendere.

(f) Debarment. An action taken by a debarring official in accordance with these regulations to exclude a person from participating in covered transactions. A person so excluded is “debarred.”

(g) Debarring official. An official authorized to impose debarment. The debarring official is either:

(1) The agency head, or

(2) An official designated by the agency head.

(h) Indictment. Indictment for a criminal offense. An information or other filing by competent authority

charging a criminal offense shall be an agent or representative of another given the same effect as an indict- participant. ment.

(n) Person. Any individual, corpora(i) Ineligible. Excluded from partici- tion, partnership, association, unit of pation in Federal nonprocurement government or legal entity, however programs pursuant to a determination organized, except: foreign governof ineligibility under statutory, execu- ments or foreign governmental entitive order, or regulatory authority, ties, public international organizaother than Executive Order 12549 and tions, foreign government owned (in its agency implementing regulations; whole or in part) or controlled entifor exemple, excluded pursuant to the ties, and entities consisting wholly or Davis-Bacon Act and its implementing partially of foreign governments or regulations, the equal employment op- foreign governmental entities. portunity acts and executive orders, or (0) Preponderance of the evidence. the environmental protection acts and Proof by information that, compared executive orders. A person is ineligible with that opposing it, leads to the conwhere the determination of ineligibil- clusion that the fact at issue is more ity affects such person's eligibility to probably true than not. participate in more than one covered (p) Principal. Officer, director, transaction.

owner, partner, key employee, or other (j) Legal proceedings. Any criminal person within a participant with priproceeding or any civil judicial pro mary management or supervisory receeding to which the Federal Govern sponsibilities; or a person who has a ment or a State of local government or critical influence on or substantive quasi-governmental authority is a control over a covered transaction, party. The term includes appeals from whether or not employed by the parsuch proceedings.

ticipant. Persons who have a critical (k) Nonprocurement List. The por influence on or substantive control tion of the List of Parties Excluded over a covered transaction are: from Federal Procurement or Nonpro (1) Principal investigators. curement Programs complied, main (q) Proposal. A solicited or unsolictained and distributed by the General ited bid, application, request, invitaServices Administration (GSA) con- tion to consider or similar communicataining the names and other informa tion by or on behalf of a person seektion about persons who have been de ing to participate or to receive a benebarred, suspended, or voluntarily ex- fit, directly or indirectly, in or under a cluded under Executive Order 12549 covered transaction. and these regulations, and those who (r) Respondent. A person against have been determined to be ineligible. whom a debarment or suspension

(1) Notice. A written communication action has been initiated. served in person or sent by certified (s) State. Any of the States of the mail, return receipt requested, or its United States, the District of Columequivalent, to the last known address bia, the Commonwealth of Puerto of a party, its identified counsel, its Rico, any territory or possession of the agent for service of process, or any United States, or any agency of a partner, officer, director, owner, or State, exclusive of institutions of joint venturer of the party. Notice, if higher education, hospitals, and units undeliverable, shall be considered to of local government. A State instruhave been received by the addressee mentality will be considered part of live days after being properly sent to the State government if it has a writthe last address known by the agency. ten determination from a State gov

(m) Participant. Any person who ernment that such State considers submits a proposal for enters into, or that instrumentality to be an agency reasonably may be expected to enter of the State government. into a covered transaction. This term (t) Suspending official. An official

so includes any person who acts on authorized to impose suspension. The behalf of or is authorized to commit a suspending official is either: participant in a covered transaction as (1) The agency head, or

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