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has any other special or professional title, does not permit answer in the negative. § 1-1.507 Use of Standard Form 119. 8 1-1.507-) Form prescribed.
Pursuant to the Act and in furtherance of the objectives stated in § 1-1.500, Standard Form 119 (December 1952), Contractor's Statement of Contingent or Other Fees for Soliciting or Securing or Resulting from Award of Contract, is hereby prescribed and shall be used in accordance with the provisions of this subpart. Except as provided in § 11.507-3, this form shall be used without deviation by executive agencies when ever either part of the inquiry provided for in § 1-1.505 is answered in the affirmative. The form shall be used also, without deviation, in any other case where an executive agency desires to obtain such information. When, after use of the form, further information is required, it may be obtained in any appropriate manner. Submission of the form shall be required, normally, only of successful bidders and contractors. § 1-1.507-2 Statement in lieu of form.
Any bidder or proposed contractor who has previously furnished a Standard Form 119 to the office issuing the invitation or negotiating the contract may be permitted to accompany his bid, or submit in connection with the proposed contract, a signed statement (a) indicating when such completed form was previously furnished, (b) identifying by number the previous invitation or contract in connection with which such form was submitted, and (c) representa ing that the statements in such previously furnished form are applicable to such subsequent bid or contract. In such case, submission of an additional completed Standard Form 119 need not be required. § 1-1.507–3 Exceptions.
The inquiry and agreement specified in § 1-1.505 need not be made and submission of Standard Form 119 need not be requested in connection with the following:
(a) Any advertised contract in which the aggregate amount involved does not exceed $25,000.
(b) Any negotiated contract in which the aggregate amount involved does not exceed, in the case of the Department of Defense, $5,000; in all other cases, $2,500.
(c) Any negotiated contract for perIshable subsistence supplies in which the aggregate amount Involved does not exceed $25,000.
(d) Any contract for services which are required to be performed by an individual contractor in person under Government supervision and paid for on a time basis.
(e) Any contract for public utility services furnished by a public utility company where the utility company's rates for the services furnished are subject to regulation by Federal, State, or other regulatory body and the public utility company is the sole source of supply.
(f) Contracts to be made in foreign countries.
(g) Any other contracts, individually or by class, of the Department of Defense, designated by the Secretary. Reports of any such exceptions shall be filed promptly with the Administrator of General Services. § 1-1.508 Enforcement. $ 1-1.508_1 Failure or refusal to fur
nish representation and agreement. Each executive agency shall take the necessary steps to assure that the indicated successful bidder or proposed contractor has furnished a representation (negative or affirmative) and agreement as described in § 1-1.505.
(a) If the indicated successful bidder or proposed contractor makes such representation in the negative, such representation may be accepted and award made or offer accepted in accordance with established procedure.
(b) If the indicated successful bidder or proposed contractor makes such representation in the affimative, a completed Standard Form 119 shall be requested from the bidder or proposed contractor. In the case of formal advertising, the making of an award in accordance with established procedure need not be delayed pending receipt of the form. In the case of negotiation, if the proposed contractor makes such representation in the affirmative, he shall be required to file a completed Standard Form 119 prior to acceptance of the offer or execution of the contract unless the head of the executive agency concerned, or his authorized representative, considers that the interest of the Government will be prejudiced by the suspension of negotiations pending receipt and consideration of an executed Standard Form 119.
(c) If the indicated successful bidder
or proposed contractor fails to furnish the representation and agreement as described in § 1-1.505, such failure shall be considered a minor informality and. prior to award, such bidder or proposed contractor shall be afforded a further opportunity to furnish such representation and agreement. A refusal or fall. ure to furnish such representation and agreement, after such opportunity has been afforded, shall require rejection of the bid or offer. $ 1-1.508–2 Failure or refusal to fur.
nish Standard Form 119. If the successful bidder or contractor. upon request, refuses or fails to furnish & completed Standard Form 119, or a statement in lieu thereof as provided in § 1-1.507-2, the executive agency concerned shall take one or more of the followering actions, or other action, as may be appropriate:
(a) If an award has not been made or offer accepted, determine whether the bid or offer should be rejected.
(b) If the contract has been awarded or offer accepted, determine what action shall be taken, such as making an inde pendent investigation or considering the eligibility of the contractor as a future contractor in accordance with established procedure. & 1-1.508-3 Misrepresentations or vio
lations of the covenant against con
tingent fees. In case of misrepresentation, or violation or breach of the covenant against contingent fees, or some other relevant Impropriety. the executive agency concerned shall take one or more of the following actions, or other action, as may be appropriate:
(a) If an award has not been made, or offer has not been accepted, determine whether the bid or offer should be rejected.
(b) If an award has been made or offer has been accepted, take action to enforce the covenant in accordance with Its terms; that is, as the best interests of the Government may appear, annul the contract without Vability or recover the amount of the fee involved.
(c) Consider the future eligiblity as a contractor of the bidder or contractor in accordance with established procedure.
(d) Determine whether the case should be referred to the Department of Justice in accordance with established procedure with respect to determining matters of fraud or criminal conduct.
81–1.509 Preservation of records.
Executive agencies shall preserve, for enforcement or report purposes, at least one executed copy of any representation and completed Standard Form 119 (or statement in lieu of form) together with a record of any other pertinent data, Including data as to action taken. Subpart 1-1.6— Debarred, Suspended, and
Ineligible Bidders § 1-1.600 Scope of subpart.
This subpart prescribes policies and procedures relating to: (a) The debarment of bidders for cause, (b) the suspension of bidders for cause under prescribed conditions, and (c) the placement of bidders in ineligibility status for violations of the provisions of the Equal Opportunity clause. It is directly applicable to the advertised and negotiated purchases and contracts of executive agencies, including contracts for construction, repair, alteration, destruction, or dismantlement of public works or buildings, Other Federal agencies are requested to comply therewith in conducting their purchasing and contracting operations. (37 FR 23337, Nov. 2, 1972) fl-1.601 General.
Debarment, suspension, and placement in ineligibility status are measures which may be invoked by the Government either to exclude or to disqualify bidders and contractors from participation lo Government contracting or subcontracting. These measures should be used for the purpose of protecting the interests of the Government and not for punishment. To assure the Government the benefits to be derived from the full and free competition of interested bidders, these measures should not be instituted for any time longer than deemed necessary to protect the interests of the Government, and should preclude awards only for the probable duration of the period of non-responsibility. § 1-1.601-1 Definitions.
(a) “Debarment” means, in general, an exclusion from Government contracting and subcontracting for a reasonable, specified period of time commensurate with the seriousness of the offense or failure or the inadequacy of performance. However, in connection with Executive Order 11246 of September 24.
1965, as implemented by the rules, regu (c) Each executive agency shall dolations, and relevant orders of the Secre- termine, in its discretion, as the interests tary of Labor in 41 CFR Part 60, the of the national security may require, the term “debarment" also means an exclu- necessity for and degree of classificasion by reason of ineligibility under the tion of its list and correspondence relatSecretary's rules from Government con ing thereto. I the agency determines tracting or subcontracting for an indefi that its list shall not be classified, the
period of time pending the elimina- list should be marked "For Official Use tion of the circumstances for which the Only" or with a word or phrase of exclusion was imposed.
equivalent meaning to prevent inspec(b) “Suspension" means a disqualifi tion of the contents by any and other cation from Government contracting and than personnel required to have access subcontracting for a temporary period thereto. of time because a concern or individual (d) The list shall be kept current by is suspected upon adequate evidence (see Issuance of notices of additions and § 1-1.605) of engaging in criminal, deletions. fraudulent, or seriously improper con
§ 1-1.602-1 Bases for entry on the deduct.
barred, suspended, and ineligible (c) A "debarment list” or “debarred
bidders list. bidders list” means a list of names of concerns or individuals against whom
Entry shall be made on the debarred, any or all of the measures referred to
suspended, and ineligible list of firms or in this section have been invoked.
Individuals on the following bases: (d) “Bidders" means, wherever the
(a) Those listed by the Comptroller term is used in this subpart, any offerors
General in accordance with the provibidding pursuant to an invitation for
sions of section 3 of the Walsh-Healey bids or a request for proposals.
Public Contracts Act (41 U.S.C. 37), (e) "Affiliates" means business con
which have been found by the Secretary cerns which are affiliates of each other
of Labor to have violated any of the when either directly or indirectly one
agreements or representations required concern or individual controls or has the
by that Act. power to control another, or when a third
(b) Those listed by the Comptroller party controls or has the power to con
General in accordance with the provi. trol both,
sions of section 3 of the Davis-Bacon
Act (40 U.S.C. 2768-2(a)), as found by 137 FR 23337, Nov. 2, 1972)
the Comptroller General to have vio81-1.602 Establishment and mainte lated said Act.
nanco of a list of concerns or indi. (c) Those listed by the Comptroller viduals debarred, ruspended, or de General in accordance with the proclared ineligible.
visions of Part 5, section 56(b) of the (a) Each executive agency shall es Regulations of the Secretary of Labor tablish and maintain, on the bases con issued pursuant to authority granted tained in § 1-1.602-1, a consolidated list under Reorganization Plan 14 of 1950, of concerns and individuals to whom as found by the Secretary of Labor to contracts will not be awarded and from be in aggravated or wilful violation of whom bids or proposals will not be so the prevailing wage or overtime pay prolicited as provided in § 1-1.603.
visions of any of the following statutes(b) The list shall show as a minimum (1) Davis-Bacon Act (40 U.S.C. 276a). the following information:
(2) Anti-Kickback Act (18 U.S.C. 874, (1) The names of those concerns or 40 U.S.C. 276b, c). Individuals debarred or ineligible (in al. (3) The Contract Work Hours Standphabetical order) with appropriate crossards Act (40 U.S.C. 327-330). reference where more than one name is (4) National Housing Act '12 U.S.C. involved in a single action;
1703). (2) The basis of authority for each (5) Hospital Survey and Construction action;
Act (42 U.S.C. 291). (3) The extent of restrictions im. (6) Federal Airport Act (49 U.S.C. posed; and
1101). (4) The termination date for each de- (7) Housing Act of 1949 (42 U.S.C. barred listing.
(8) School Survey and Construction 602-1 (a), (b), (d), or (e), or to any Act of 1950 (20 U.S.C. 251).
concern, corporation, partnership, or (9) Defense Housing and Community association in which the listed concern Facilities and Services Act of 1951 (42 or individual has actual control or a conU.S.C. 1591).
trolling interest; nor shall bids or pro(10) Federal Civil Defense Act of 1950 posals be solicited therefrom. However, (50 App. U.S.C. 2281 (1)).
when it is determined essential in the (11) Area Redevelopment Act of 1961 public interest by the head of an agency (42 U.S.C. 2518).
or his designee, an exception may be (12) Delaware River Basin Compact made with respect to a particular pro(sec. 15.1, 75 Stat. 714).
curement action when a concern or in(13) Health Professions Educational dividual is listed as debarred on the Assistance Act of 1963 (sec. 721, 77 Stat. basis of § 1-1.602-1(d). 167).
(b) Restrictions under statutes desig(14) Mental Retardation Facilities nated in the regulations of the Secretary Construction Act (secs. 101, 122, 135, 77 of Labor. A contractor listed on the basis Stat. 282, 284, 288).
of § 1-1.602-1(c), or any concern, cor(15) Community Mental Health Cen poration, partnership, or association in ters Act (sec. 205, 77 Stat. 292).
which that contractor has actual control (d) Those the executive agency deter
or a controlling interest, shall be inelimines to debar administratively for any gible for a period of 3 years (from the of the causes and under all of the appro
date of publication by the Comptroller priate conditions listed in § 1-1.604.
General) to receive any contracts sub(e) Those listed by the Director of
ject to any of the statutes listed in the Office of Federal Contract Compli
§ 1-1.602-1(c). ance of the Department of Labor on the
(c) Buy American Act restrictions. As Contract Ineligibility List, which gives
specified in the Buy American Act (41 the names of prime contractors and sub
U.S.C. 10b(b)), contracts shall not be contractors that have been declared in
awarded for construction, alteration, or eligible to participate in Government repair of public buildings or public works contracting or subcontracting by reason in the continental United States or elseof noncompliance with the Equal Oppor where to concerns or their affiliates or tunity clause.
individuals listed on the basis of $ 1(f) Those the executive agency deter
1.602-1(g); nor shall bids or proposals mines to suspend administratively for therefor be solicited therefrom. However, the reasons and under the conditions set
firms or individuals listed on this basis forth in § 1-1.605.
may be awarded contracts and may be (g) Those determined by an executive
solicited for bids or proposals for other agency in accordance with section 3(b)
than construction, alteration, or repair of the Buy American Act (41 U.S.C.
of public buildings or public works in the
continental United States or elsewhere. 10b(b)) to have failed to comply with the provisions of section 3(a) of that Act
(d) Restrictions for noncompliance
with the Equal Opportunity clause. A under any contract containing the spe
concern or individual debarred for noncific provision required by said section
compliance with the Equal Opportunity 3(a) and made by the agency for con
clause shall not be awarded a Governstruction, alteration, or repair of any
ment contract. public building or public work.
(e) Restrictions on subcontracting. If 129 FR 10104, July 24, 1964, as amended at
a concern or individual listed on the de37 FR 23337, Nov. 2, 1972)
barred bidders list is proposed as a sub$1-1.603 Treatment to be accorded
contractor, the contracting officer shall firms or individuals in debarred,
decline to approve subcontracting with suspended, or ineligible status.
that firm or individual in any instance Firms or individuals listed by the in which consent is required of the Govagency as debarred, suspended, or in ernment before the subcontract is made, eligible shall be treated as follows: unless it is determined by the agency
(a) Total restrictions. A contract shall to be in the best interest of the Governnot be awarded to a concern or individ- ment to grant approval. ual that is listed on the basis of $1-1.- 137 FR 23337, Nov. 2, 1972)
§ 1-1.604 Causes and conditions appli.
cable to determination of debarment
by an executive agency. Subject to the following conditions, each executive agency is authorized to debar a firm or Individual in the public Interest for any of the following causes:
(a) Causes. (1) Conviction for commission of a criminal offense as an incident to obtaining or attempting to obtain a public or private contract, or subcontract thereunder, or in the performance of such contract or subcontract.
(2) Conviction under the Organized Crime Control Act of 1970, or conviction 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.
(3) Conviction under the Federal Antitrust Statutes arising out of the submission of bids or proposals.
(4) Violation of contract provisions, as set forth below, of a character which is regarded by the agency involved to be so serious as to justify debarment action:
(i) Willful failure to perform in accordance with the specifications or within the time limit provided in the contract.
(ii) A record 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 has occurred 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 firm or individual as a contractor shall not be considered to be a basis for debarment.
(iii) Violation of the contractural provision against contingent fees.
(iv) Acceptance of a contingent fee, which is paid in violation of contractual provisions against contingent fees.
(5) Any other cause affecting responsibility as a Government contractor of such serious and compelling nature as may be determined by the head of the agency to warrant debarment.
(6) Debarment by some other executive agency.
(b) Conditions. (1) Debarment for any of the causes set forth in (a) of this
§ 1-1.604 shall be made only upon approval of the head of the executive agency or his duly authorized representative.
(2) The existence of any of the causes set forth in (a) of this § 1-1.604 does not necessarily require that a firm or indi. vidual be debarred. In each instance, whether the offense or failure, or inadequacy of performance, be of a criminal, fraudulent, or serious nature, the decision to debar shall be made within the discretion of the executive agency and shall be rendered in the best interests of the Govermanent. Likewise, all mitigating factors may be considered in determining the seriousness of the offense, failure, or inadequacy of performance, and in deciding whether debarment is warranted.
(3) The existence of a cause set forth in (a) (1), (2) and (3) of this § 1-1.604 shall be established by criminal conviction by a court of competent jurisdiction. In the event that an appeal taken from such conviction results in a reversal of the conviction, the debarment shall be removed upon the request of the bidder (unless other cause for debarment exists).
(4) The existence of a cause set forth in (a) (4) and (5) of this § 1-1.604 shall be established by evidence which the executive agency determines to be clear and convincing in nature.
(5) Debarment for the cause set forth in (a) (6) of this § 1-1.604 (debarment by another agency) shall be proper provided that one of the causes for debarment set forth in (a) (1) through (5) of this § 1-1.604 was the basis for debarment by the original debarring agency. Such debarment may be based entirely on the record of facts obtained by the original debarring agency, or upon a combination of such facts and additional facts.
(c) Period of debarment. (1) Debarment of a firm or individual for causes other than failure to comply with the provisions of the Equal Opportunity clause (see 1-1.602-1(e)) shall be for a reasonable, definitely stated period of time commensurate with the seriousness of the offense or the failure or inadequacy of performance. As a general rule, a period of debarment shall not exceed 3 years. However, when debarment for an additional period is deemed necessary, notice of the proposed additional debar