(Code KDP-1), citing complete and detailed justification for the proposed action. The recommendation will be based on such factors as (1) urgent delivery or performance schedules, or (2) inability to secure the supplies or services from other sources due to lead time, proprietary data, or lack of procurement data.

[35 FR 18803, Dec. 11, 1970, as amended at 37 FR 14921, July 26, 1972]

§ 18-1.604 Debarment of bidders.

§ 18-1.604-]

Authority in NASA to de

bar firms and individuals. (a) The Administrator may, in the public interest, debar a firm or individual for any of the causes set forth in § 181.604-2.

(b) The Director of Procurement, as an authorized representative of the Administrator, is authorized to debar in the public interest a firm or an individual for any of the causes set forth in § 18-1.604-2, except for paragraph (c) thereof, in accordance with the procedures set forth in this Subpart 18-16. § 18-1.604-2 Causes for debarment.

(a) Conviction by or a judgment obtained in a court of competent jurisdiction for:

(1) Commission of fraud or a criminal offense as an incident to obtaining, attempting to obtain, or in the performance of a public contract;

(2) Violation of the Federal antitrust statutes arising out of the submission of bids or proposals; or

(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty, which seriously and directly affects the question of present responsibility as a Government contractor.

If the conviction or judgment is reversed on appeal, the debarment shall be removed upon receipt of notification thereof. The foregoing does not necessarily require that a firm or individual be debarred. The decision to debar is discretionary; the seriousness of the offense, and all mitigating factors, shall be considered in making the decision to debar.

(b) Clear and convincing evidence of violation of contract provisions, as set forth below, when the violation is of a character so serious as to justify debarment action:

(1) Willful failure to perform in accordance with the specifications or delivery requirements in a contract;

(2) A history of failure to perform, or of unsatisfactory performance, in accordance with the terms of one or more contracts: Provided, That such failure or unsatisfactory performance is within a reasonable period of time preceding the determination to debar (failure to perform or unsatisfactory performance caused by acts beyond the control of the contractor shall not be considered as a basis for debarment); or

(3) Violation of the contractual provision against contingent fees.

(c) Any other causes affecting responsibility as a Government contractor of such serious and compelling nature as may be determined by the Administrator to justify debarment: Provided, That no firm or individual shall be debarred for failure to comply with (1) the Equal Opportunity clause set forth in § 1812.804(a) or (2) the Equal Opportunity (Federally Assisted Construction) (Applicant) clause set forth in § 18-12.804 (b) except as prescribed under § 1812.813-2.

(d) Debarment for any of the above causes by some other executive agency of the Government. Such debarment may be based entirely upon the record of facts obtained by the original debarring agency, or upon a combination of additional facts with the record of facts of the original debarring agency. [37 FR 14921, July 26, 1972]

(a) Period of debarment. All debarments by NASA shall be for a reasonable, specified period of time, commensurate with the seriousness of the cause therefor. As a general rule, a period of debarment will not exceed 3 years. In the event debarment is preceded by suspension, consideration shall be given to such period of suspension in determining the period of debarment. Prior to the expiration of the debarment period of any firm or individual who has been debarred by NASA for any of the causes set forth in § 18-1.604-2, the Director of Procurement will cause all of the facts and circumstances relating to the debarment to be reviewed. The debarment shall be removed at the expiration of the specified period, unless, on the basis of an evaluation of newly developed facts, it is determined that debarment for an addi

tional period is required in order to protect the Government's interests. Where debarment for an additional period is considered necessary, notice of the proposed debarment shall be furnished the firm or individual in accordance with § 18-1.604-4. The debarment of a firm or individual may be modified by reducing the period thereof when the circumstances justify such action. With respect to debarment for violation of the (1) Equal Opportunity clause set forth in § 18-12.804(a), or (2) the Equal Opportunity (Federally Assisted Construction) (Applicant) clause set forth in § 1812.804(b) (Type F), the names of such firms or individuals shall be removed from the NASA list (§ 18-1.601-1) upon receipt of notification from the Secretary of Labor that the eligibility of such firms or individuals has been reestablished.

(b) Scope of debarment. (1) Debarment may include all known affiliates of a firm or individual. For the definition of an affiliate, see § 18-1.600(b).

(2) An attempt shall be made to determine who are the affiliates of any firm or individual who is proposed to be debarred. Consideration shall be given to initiating debarment against such affilates whenever the facts and circumstances justifying debarment of the firm or individual concerned would also justify debarment of such affiliates.

(3) The fraud or criminal conduct of an individual may be imputed to the business firm with which he is connected whenever the impropriety involved was performed in the course of official duty or with the knowledge or approval of the business firm.

[37 FR 14922, July 26, 1972]

§ 18-1.604-4

Notice of debarment.

(a) The firm or individual proposed for debarment shall be furnished with a written notice of the proposed debarment by the Director of Procurement, stating as a minimum:

(1) The fact that debarment is being considered;

(2) The reasons for the proposed debarment; and

(3) The period of time to be afforded to present information for consideration. Information in opposition to a proposed debarment may be presented in person, in writing, or through representation. The period of time to be afforded to present information for consideration shall be limited to 30 days unless the firm or

individual requests and justifies additional time. When no additional time is requested, the debarment determination, including the notice to the firm or individual, shall be completed within 90 days. When additional time is requested and it is determined to grant such additional time, the 90-day period shall be adjusted accordingly. If the firm or individual is not under suspension, pursuant to § 18-1.605, the notice of proposed debarment will inform the firm or individual that no contracts shall be awarded to such firm or individual pending the debarment determination.

(b) If the firm or individual proposed for debarment has affiliates who are also proposed to be debarred, the procedures set forth in paragraph (a) of this section shall be applied to such affiliates.

(c) If debarment is effected, the firm or individual and the affiliates that have been debarred will be notified by the Director of Procurement, in writing, within 10 days after determination of debarment has been made. This notice will:

(1) Reference the earlier notice of proposed debarment;

(2) Specify the reasons for debarment; and

(3) State the period of debarment, including effective dates.

If, following the notice of proposed debarment, a determination is made that debarment will not be effected, the Director of Procurement will notify the firm or individual in writing accordingly.

(d) Copies of the notice of debarment and of any removals from such debarment will be furnished to the General Services Administration.

(e) All inquiries or correspondence from or in behalf of debarred contractors concerning their status, reasons for debarment action, etc., shall be forwarded to the Procurement Office, NASA Headquarters (Code KDP-1) for appropriate action.

§ 18-1.604-50 Reporting procedures.

(a) Procurement officers may submit reports recommending debarment of a firm or individual for any of the causes set forth in § 18-1.604-2. Such actions shall be coordinated with local counsel.

(b) Reports recommending debarment shall be submitted in triplicate to the Procurement Office, NASA Headquarters (Code KDP-1). Each such report shall contain a complete statement of the facts concerning the firm's or individual's dereliction, including affidavits, deposi

tions, records of action, if applicable, and any other relevant data. Names and addresses of all persons having knowledge of the circumstances shall be included. Such reports shall include the names and addresses of all known affiliates of reported firms or individuals, together with the nature of such affiliation.

§ 18-1.605 Suspension of bidders. § 18-1.605-1 General.

Suspension of a firm or an individual is a drastic action which must be based upon adequate evidence rather than mere accusation. In assessing adequate evidence, consideration should be given to how much credible information is available, its reasonableness in view of surrounding circumstances, corroboration or lack thereof as to important allegations, and inferences which may be drawn from the existence or absence of affirmative facts. This assessment should include an examination of basic documents, such as contracts, inspection reports, and correspondence. The suspension of a firm or individual is an administrative determination which may be modified when determined to be in the interest of the Government.

§ 18-1.605-2 Authority in NASA to suspend firms or individuals.

(a) The Administrator may, in the interest of the Government, suspend a firm or individual for any of the causes set forth in § 18-1.605-3.

(b) The Director of Procurement, as an authorized representative of the Administrator, is authorized to suspend in the interest of the Government a firm or individual for any of the causes set forth in § 18-1.605-3, except for paragraph (b) thereof, in accordance with the procedures set forth in this subpart.

§ 18-1.605-3 Causes for suspension.

A firm or individual may be suspended, whenever such suspension is determined to be in the interest of the Government, for the following causes:

(a) Whenever the firm or individual is suspected of

(1) Commission of fraud or a criminal offense as an incident to obtaining, attempting to obtain, or in the performance of a public contract;

(2) Violation of the Federal antitrust statutes arising out of the submission of bids and proposals; or

destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty which seriously and directly affects the question of present responsibility as a Government contractor.

(b) Any other causes of such serious and compelling nature as may be determined to justify suspension: Provided, That no firm or individual shall be suspended for failure to comply with the Equal Opportunity clause set forth in § 18-12.804(a), or the Equal Opportunity (Federally Assisted Construction) (Applicant) clause set forth in § 18-12.804 (b); except as prescribed under § 1812.813-2.

[37 FR 14922, July 26, 1972]

§ 18-1.605-4 Period and scope of suspension.

(a) Period of suspension. All suspensions made by NASA shall be for a temporary period pending the completion of investigations and such legal proceedings as may ensue.

(1) In the event a firm or individual is suspended for any cause set forth in § 18-1.605-3 (a) and prosecutive action is not initiated by the Department of Justice within 12 months from the date of the notice of suspension, the suspension shall be terminated unless an Assistant Attorney General requests continuation of the suspension. If such a request is received, the suspension may be continued for an additional 6 months. Notice of the proposed removal of the suspension shall be given to the Department of Justice 30 days prior to the expiration of the 12-month period. In no event shall suspension continue beyond 18 months unless prosecutive action has been initiated within that period. Where prosecutive action is initiated, the suspension may continue until legal proceedings are completed.

(2) In the event a firm or an individual is suspended by the Administrator for any cause in accordance with § 18-1.605-3 (b), the period of suspension shall not exceed 90 days. The period of suspension may be extended for additional periods of 90 days upon a determination by the Administrator of the reasons and necessity therefor. However, in no event shall the total of any suspension under this § 18-1.605-4 exceed 1 year or be in addition to any period of suspension under subparagraph (1) above.

(3) Upon the completion of the legal proceedings under subparagraph (1)

above or investigation under subparagraph (2) above, the suspension shall be removed and, if appropriate, changed to a debarment in accordance with § 181 604-2(a). Firms or individuals released from suspension and not debarred shall be replaced on appropriate bidders lists.

(b) Scope of suspension. (1) Suspension may include all known affiliates of a firm or individual. For the definition of an affiliate, see § 18-1.600-2.

(2) An attempt shall be made to determine who are the affiliates of any firm or individual who is proposed to be suspended. Consideration shall be given to suspending such affiliates whenever the facts and circumstances justifying suspension of the firm or individual concerned would also justify suspension of such affiliates.

(3) The fraud or criminal conduct of an individual may be imputed to the business firm with which he is connected whenever the impropriety involved was performed in the course of official duty or with the knowledge or approval of the business firm.

§ 18-1.605-5 Restrictions during period of suspension.

Suspended firms or individuals shall be subject to the provisions of § 18-1.603 (a) (4), (b), and (c).

§ 18-1.605-6 Notice of suspension.

(a) The firms or individuals who have been suspended will be furnished a written notice, by the Director of Procurement, of the suspension within 10 days after the effective date of the suspension. The notice of suspension will state:

(1) That the suspension is based on information that the firm or individual has committed irregularities of a serious nature in business dealings with the Government or that the suspension is based on irregularities which seriously reflect on the propriety of further dealings of the firm or individual with the Government, together with a description of the nature of those irregularities, in general terms, without disclosing the Government's evidence;

(2) That the suspension is for a temporary period pending the completion of an investigation and such legal proceedings as may ensue; and

(3) That bids and proposals will not be solicited from such firms or individuals and if received will not be considered, and awards of contracts may not be made, unless it is determined to be in

the best interest of the Government by the Administrator or his authorized representative to do so.

(b) Copies of the notice of suspension and of any removal from such suspension shall be furnished to the Department of Justice.

(c) All inquiries or correspondence from or in behalf of suspended firms and individuals concerning their status, reasons for suspension, and so forth, shall be forwarded to the Procurement Office, NASA Headquarters (Code KDP1) for appropriate action. Information beyond that stated in the notice of suspension concerning the reasons for suspension shall not be furnished to the contractor or his representatives until the Department of Justice has been advised of the inquiry.

§ 18-1.605-50 Reporting procedures.

(a) Procurement officers may submit reports recommending suspension of a firm or individual for any of the causes set forth in § 18-1.605-3. Such actions shall be coordinated with local counsel.

(b) Reports recommending suspension shall be submitted in triplicate to the Procurement Office, NASA Headquarters (Code KDP-1). Such reports shall contain a complete statement of the pertinent facts indicating alleged criminal conduct, fraudulent activity, or suspicion thereof, and shall be supported by appropriate exhibits, including copies of any contracts involved and any assignments of claims thereunder. Such reports shall include the names and addresses of all known affiliates of reported firms or individuals, together with the nature of such affiliation.

§ 18-1.606 Limited debarment or suspension.

When it is determined to debar or suspend a concern pursuant to § 18-1.604 or § 18-1.605, the Administrator or his authorized representative shall decide whether the debarment or suspension should extend to procurement contracts or sales contracts or to both. If the debarment or suspension is limited to either procurement contracts or sales contracts, the listing should so indicate. Likewise, a decision may be made to except from an administrative debarment or suspension a particular commodity or commodities or a particular division or subsidiary or other appropriate organizational element of the contractor where such action is considered to be in the best interests of the Government.

§ 18-1.607 Interchange of debarment

information.

(a) The General Services Administration, in accordance with FPR 1-1.607(a), is charged with compiling from the notice of debarments furnished it by NASA and other executive agencies a combined list of such debarments, including the basis of action, and distributing a copy of such list to NASA and all other executive agencies.

(b) The list furnished by General Services Administration shall be for information purposes only; it is not intended to take the place of, or be an addition to, the lists used by NASA.

(c) The Procurement Office, NASA Headquarters will check the combined list of debarred bidders furnished by the General Services Administration and consider firms or individuals thereon for inclusion upon the NASA list, in accordance with the provisions of this subpart.

listed

(d) On specific request of the Director of Procurement, the General Services Administration has agreed to furnish to NASA, in accordance with FPR 1-1.607 (b), a copy of the notice reflecting the basis for debarment action taken by another agency pursuant to its regulations or under the Buy American Act (see § 181.603 (a) (3) Type C listing). If desired, the Director of Procurement may make a direct inquiry concerning any debarment case to the agency which originated the action.

Subpart 18-1.7-Small Business
Concerns

This Subpart 18-1.7, which applies only in the United States, its possessions, Puerto Rico, and the Trust Territory of the Pacific Islands implements the National Aeronautics and Space Act of 1958, as amended (42 U.S.C. 2451-2459), and the Small Business Act, as amended (15 U.S.C. 631 et seq.), and sets forth policy and procedures governing (a) contract awards to small business concerns, (b) relationships with the Small Business Administration (SBA), (c) small business set-asides, and (d) small business subcontracting.

[36 F.R. 21455, Nov. 10, 1971]

§ 18-1.701 Definitions.

The definitions of small business concerns are promulgated by the Small Business Administration. As used throughout

this subpart, the following terms shall have the meanings set forth in this section. When a procurement office is in doubt as to the specific small business definition that should apply to a particular procurement, a written determination from the Small Business Administration regional office having jurisdiction over the geographical area in which the contracting officer is located will be requested for inclusion in the procurement file.

[36 F.R. 21455, Nov. 10, 1971]

§ 18-1.701-1 Small business concern.

(a) (1) General definition. A small business concern is a concern that is independently owned and operated, is not dominant in the field of operation in which it is bidding on Government contracts, and with its affiliates, can further qualify under the criteria set forth in subparagraphs (2) and (3) of this paragraph. "Concern" means any business entity organized for profit with a place of business in the United States, its possessions, Puerto Rico, or the Trust Territory of the Pacific Islands, including but not limited to an individual, partnership, corporation, joint venture, association, or cooperative. For the purpose of a procurement of a product or service that could be classified into two or more industries with different size standards, the size standard to be used in determining a bidder's size status shall be that for the industry whose definition best describes the principal nature of the product or service being procured.

(2) Industry small business size standards. In addition to being independently owned and operated, and not dominant in the field of operation in which it is bidding on Government contracts, a small business concern in order to qualify as such must meet the criteria established for the industries set forth below. "Annual receipts" means the gross income (less returns and allowances, sales of fixed assets and interaffiliate transactions) of a concern (and its affiliates) from sales of products and services, interest, rents, fees, commissions, and/or from whatever other source derived, as entered on its regular books of account for its most recently completed fiscal year (whether on a cash, accrual, completed contracts, percentage of completion, or other acceptable accounting basis) and reported or to be reported to the U.S. Treasury Department, Internal Revenue Service, for Federal income tax