tenders, tenders of service, commercial or Government bills of lading, and similar arrangements to or from specified transportation facilities.

(0) Transportation facility means an agency installation, depot, or shipping and receiving point which handles Government traffic.

(p) Transportation officer means agency traffic managers or other officials responsible for managing bill of lading type commitments. Agencies may designate other personnel as transportation officers for the purpose of imposing temporary nonuse status provided such designations are consistent with the individual's current duties and responsibilities.

[51 FR 24337, July 3, 1986]

§ 101-40.404 Maintenance of a list of temporary nonuse, debarred, or suspended carriers.

§ 101-40.404-1 Listing temporary nonuse carriers.

Each agency that places a carrier in temporary nonuse shall:

(a) Compile and maintain a current list of carriers placed in temporary nonuse;

(b) Direct inquiries concerning the listed carriers to the transportation officer that took the action; and

(c) Establish procedures to provide for the effective use of the list to ensure that the scope and duration of the temporary nonuse status are communicated to all affected transportation facilities.

[51 FR 24338, July 3, 1986; 51 FR 27539, Aug. 2, 1986]

§ 101-40.404-2 Listing debarred or suspended carriers.

(a) Carriers which have been debarred or suspended by agency debarring/suspending officials will be included on the consolidated list in accordance with the procedures established at 48 CFR 9.404.

(b) Agency transportation officers should make arrangements for access to the consolidated list through their agency's debarring and/or suspending official.

(c) Agencies shall establish effective internal procedures for the use of the consolidated list to ensure that the

§ 101-40.405 Agency records.

(a) At a minimum, each agency's records relating to a carrier's temporary nonuse shall, in accordance with the agency's internal records retention procedures, contain the following information:

(1) The name, address, and Standard Carrier Alpha Code (SCAC) (see 41 CFR 101-41.310-2(d)) of each carrier placed in temporary nonuse status;

(2) The duration and scope of the temporary nonuse status;

(3) The cause for imposing temporary nonuse, and the facts which demonstrate the existence of such a cause;

(4) Information and arguments in opposition to the imposition of temporary nonuse period submitted by the carrier or his/her representative; and

(5) The reviewing official's determination regarding maintaining or removing the temporary nonuse status.

(b) Records concerning debarment or suspension of carriers shall be maintained in accordance with 48 CFR 9.4063 and 9.407–3.

[51 FR 24338, July 3, 1986]

§ 101-40.406 Treatment to be accorded debarred or suspended carriers.

(a) Carriers debarred or suspended by an agency in accordance with 48 CFR subpart 9.4 shall be excluded from receiving awards of contracts for transportation. Debarment and suspension shall be applied on a Governmentwide basis on the named carriers and their named affiliates.

(b) Prior to requesting transportation services, agencies shall review the consolidated list for debarred or suspended carriers. If a carrier is listed, the carrier shall receive such treatment as specified therein.

[51 FR 24338, July 3, 1986]

§ 101-40.407 Agency coordination.

When more than one agency has an interest in debarring or suspending a

carrier, consideration shall be given to designating one agency as the lead agency for making a decision. Similarly, when the cause for considering placing a carrier in temporary nonuse status involves more than one transportation facility, consideration should be given to designating one transportation officer as the lead official for the decision.

[51 FR 24339, July 3, 1986]

§ 101-40.408 Temporary nonuse. § 101-40.408-1 General.

The agency's authorized transportation officer may, in the best interest of the Government, place a carrier in temporary nonuse for a period not to exceed 90 consecutive days for any of the causes contained in §101-40.408-2 using the procedures in §101-40.408-3, except that if a carrier fails within the period specified to correct the cause(s) for which temporary nonuse was imposed, the period of nonuse will be extended an additional 30 days for debarment referral. The existence of a cause for temporary nonuse under §10140.408-2 does not necessarily require that a carrier be placed in temporary nonuse; the seriousness of the carrier's acts or omissions and any mitigating factors should be considered in making a temporary nonuse decision. A carrier placed in temporary nonuse is excluded from participating in the agency's transportation activities and programs to the extent and for the period specified. The extent or scope of temporary nonuse may be limited to those agency transportation facilities which have experienced the problems leading to the imposition of temporary nonuse on which may be reasonably expected to experience similar problems. Temporary nonuse shall not be extended to unaffected facilities solely for punitive reasons or to damage the carrier's operations.

[51 FR 24339, July 3, 1986]

§ 101-40.408-2 Causes for temporary

nonuse.

A carrier may be placed in temporary nonuse for the causes listed in paragraphs (a) through (n) of this section.

(a) Willful violations of the terms of the tariffs, tenders of service, commercial or Government bills of lading, or similar arrangements determining the relationship of the parties;

(b) Persistent and/or willful failure to meet requested packing/pickup service requirements;

(c) Deliveries exceeding time-in-transit standards when established by the Government; e.g., the GSA household goods tender of service and transit times established for shipments from agencies or the GSA Federal Supply Service distribution centers;

(d) Failure to meet required delivery dates on commercial or Government bills of lading;

(e) Failure to furnish and use clean and safe vehicles and freight handling equipment;

(f) Violation of Department of Transportation (DOT) hazardous materials regulations;

(g) Mishandling of freight; e.g., damaged or missing transportation seals, or improper loading, blocking, packing, or bracing of property;

(h) Excessive damage or loss to material transported;

(i) Improper routing;

(j) Failure to pay just debts so as to subject Government shipments to possible frustration, unlawful seizure, or detention;

(k) Failure to maintain insurance coverage;

(1) Operating without legal authority; (m) Failure to settle claims in accordance with applicable Government regulations; and

(n) Repeated failure to comply with the regulations of the DOT, the Interstate Commerce Commission (ICC), or State or local governments; or failure to comply with other applicable Government regulations.

[51 FR 24339, July 3, 1986]

§ 101-40.408-3 Procedures.

(a) Investigation and referral. Agencies shall prescribe procedures for placing a carrier in temporary nonuse. Further, the procedures shall provide that a carrier which fails, within the period of temporary nonuse, to correct the cause(s) for which temporary nonuse was imposed shall be referred to the

179-165 0—98——15

agency's debarring official for appropriate action.

(b) Notice of proposal to place a carrier in temporary nonuse. The carrier shall be notified by certified mail with return receipt requested of the following information:

(1) The effective dates of the proposed temporary nonuse;

(2) The extent or scope of the proposed temporary nonuse including the specific transportation facilities to which the period of exclusion will be applicable;

(3) The facts relied on to support the specified cause(s) for temporary non

use;

(4) A period of 7 calendar days from the date the transportation officer's notice is received during which the carrier may submit in person, in writing, or through a representative, rebuttal information and arguments opposing the temporary nonuse;

(5) A period of 5 workdays during which the transportation officer will evaluate the carrier's rebuttal information and opposing arguments and render a decision;

(6) The availability of an appeal of the transportation officer's decision to a reviewing official, provided the request for review is received within 5 work days of receipt of the transportation officer's decision;

(7) The corrective action required by the carrier to be removed from temporary nonuse; and

(8) An additional nonuse period of 30 calendar days during which the carrier that fails to correct the cause(s) for temporary nonuse will be referred to the agency's debarring official for appropriate action.

(c) Decision-making process. (1) Agencies shall prescribe procedures governing the temporary nonuse decisionmaking process, which shall be as informal as practicable, consistent with principles of fundamental fairness. The procedures shall afford the carrier an opportunity to submit in person, in writing, or through a representative, information and argument in opposition to a temporary nonuse status.

(2) If the carrier requests a review of the transportation officer's decision, the transportation officer shall afford the carrier an opportunity to make a

presentation, orally or in writing, or through a representative, to a designated agency reviewing official. This presentation shall be held within 5 workdays of the transportation officer's receipt of the carrier's request for a review of his/her decision. The reviewing official shall:

(i) Consider the carrier's submission, investigate the contentions made, and make written findings of fact concerning the matters in dispute;

(ii) Assess mitigating factors and corrective measures proposed by the carrier;

(iii) Determine whether the facts, as found during his/her review, support a cause for imposition of the period of temporary nonuse proposed by the transportation officer; and

(iv) Inform the carrier of the result of his/her review within 5 workdays of receiving the carrier's submission or presentation.

(3) The effective date of the period of temporary nonuse may be delayed if there is a review by a designated agency reviewing official. Should a period of temporary nonuse be imposed following such a review, the period of temporary nonuse shall be adjusted to reflect the period proposed by the transportation officer unless a different period is recommended by the reviewing official.

(d) Decision to impose temporary nonuse. In actions in which a carrier does not request a review of the transportation officer's decision, the transportation officer shall make a decision on the basis of all the information contained in the administrative record, including any submission by the carrier. The Transportation officer shall inform the carrier of his/her decision within 5 workdays of the closing of the period for evaluating the carrier's information and arguments or his/her receipt of the reviewing officer's report. This decision shall be communicated in writing, by return receipt mail, and shall include notice of:

(1) The extent or scope of the period of nonuse including the specific transportation facilities affected by the period of temporary nonuse;

(2) The effective dates of the period of temporary nonuse;

(3) The corrective action, if any, necessary to be removed from temporary nonuse status;

(4) An additional period of 30 calendar days for debarment referral if the conduct leading to the imposition of the period of temporary nonuse continues; and

(5) Procedures for the carrier to obtain a review of the transportation officer's decision by a designated reviewing official.

[51 FR 24339, July 3, 1986; 51 FR 27539, Aug. 2, 1986]

§ 101-40.408-4 Period of temporary

nonuse.

Temporary nonuse shall be for a period commensurate with the seriousness of the cause(s) for temporary nonuse, but not for more than 90 consecutive days, except that the period of temporary nonuse may be extended an additional 30 calendar days for debarment referral when the carrier fails to correct the cause(s) for which temporary nonuse was imposed. The transportation officer, for good cause, may impose temporary nonuse beginning the same day that the notice of proposed temporary nonuse is given when continued use of the carrier's services would place the Government at risk. The transportation officer may consider terminating the temporary nonuse or reducing the period of temporary nonuse, upon the carrier's application, supported by documentation, for reasons deemed appropriate by the transportation officer, such as:

(a) Newly discovered material evidence;

(b) Bona fide change in the carrier's ownership or management; or

(c) Elimination of the cause(s) for which temporary nonuse was imposed. [51 FR 24340, July 3, 1986] § 101-40.409 Debarment.

§ 101-40.409-1 General.

(a) The debarring official may, in the best interest of the Government, debar a carrier for any of the causes contained in §101-40.409-2, using the procedures provided in 48 CFR 9.406-3. The existence of a cause for debarment under § 101-40.409-2 does not necessarily require that a carrier be debarred; the

seriousness of the carrier's acts or omissions and the mitigating factors should be considered in making any debarment decision.

(b) Debarment of of a carrier constitutes debarment of all divisions or other organizational elements of the carrier, unless the debarment decision is limited by its terms to specific divisions or organizational elements. The debarring official may extend the debarment decision to include any affiliates of the carrier, if the affiliates

are

(1) Specifically named and

(2) Given written notice of the proposed debarment and an opportunity to respond.

(c) A carrier's debarment shall apply to all agencies including the Department of Defense unless the head of the agency requiring transportation services, or an authorized representative, states in writing the compelling reasons justifying continued business dealings between that agency and the carrier.

[51 FR 24340, July 3, 1986; 51 FR 27539, Aug. 2, 1986]

§ 101-40.409-2 Causes for debarment.

The debarring official may debar a carrier for any of the following rea

sons:

(a) Failure of a carrier, within the prescribed period of temporary nonuse, to correct any of the causes listed in § 101-40.408-2;

(b) Conviction of or civil judgment for:

(1) Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a contract for transportation;

(2) Violation of Federal or State antitrust statutes;

(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; or

(4) Commission of any other offense indicating a lack of business integrity or business honesty which seriously and directly affects the present responsibility of the carrier as a transporter of the Government's property or the

household goods of its employees relocated in the interest of the Government.

(c) Violation of the terms of a contract for transportation so serious as to justify debarment, such as:

(1) Willful failure to perform in accordance with the terms of one or more contracts for transportation, or

(2) A history of failure to perform, or of unsatisfactory performance of, one or more contracts for transportation;

(d) Any other cause of so serious or compelling a nature that it affects the present responsibility of the carrier; or

(e) Debarment for any of the causes stated in paragraphs (a) through (d) of this section by another agency where the orignal debarment did not have Governmentwide effect.

[51 FR 24340, July 3, 1986]

§ 101-40.410 Suspension.

§ 101-40.410-1 General.

(a) The suspending official may, in the Government's best interest, suspend a carrier for any of the causes stated in § 101-40.410-2, using the procedures provided in 48 CFR 9.407-3.

(b) Suspension is a serious action to be imposed on the basis of adequate evidence of one or more of the causes set forth in § 101-40.410-2, pending the completion of investigation or legal proceedings, when it has been determined that immediate action is necessary to protect the Government's interest. In assessing the adequacy of the evidence, consideration should be given to how much information is available, how credible it is given the circumstances, whether or not important allegations are corroborated, and what inferences can reasonably be drawn as a result. This assessment should include an examination of basic documents such as contracts of carriage, loss or damage reports, and correspondence, as appropriate.

(c) Suspension of a carrier constitutes suspension of all divisions or other organizational elements of the carrier, unless the suspension decision is limited by its terms to specific divisions or organizational elements. The suspending official may extend the sus

pension decision to include any affiliates of the carrier, if they are

(1) Specifically named and

(2) Given written notice of the suspension and an opportunity to respond. (d) A carrier's suspension shall apply to all agencies, including the Department of Defense, unless the head of an agency requiring transportation services, or an authorized representative, states in writing the compelling reasons justifying continued business dealings between that agency and the carrier.

[51 FR 24340, July 3, 1986]

§ 101-40.410-2 Causes for suspension.

(a) The suspending official may suspend a carrier suspected upon adequate evidence of:

(1) Commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a contract for transportation;

(2) Violation of Federal or State antitrust statutes;

(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; or

(4) Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of the carrier as a transporter of the Government's property property or the household goods of its employees relocated in the interest of the Government.

(b) Indictment for any of the causes in paragaph (a) of this section constitutes adequate evidence for suspension;

(c) The suspending official, may upon adequate evidence also suspend a carrier for any other cause of so serious or compelling a nature that it affects the present responsiblity of a carrier; or

(d) A carrier may be suspended for any of the above causes based on a suspension by another agency where the original suspension does not have Governmentwide effect.

[51 FR 24340, July 3, 1986]