following actions, or other action, as Healey Public Contracts Act (41 U.S.C. may be appropriate:

35a). It is directly applicable to execu(a) If an award has not been made tive agencies in negotiated or advertised or offer accepted, determine whether the purchasing and in contracting for the bid or offer should be rejected.

construction, repair, alteration, destruc(b) If the contract has been awarded

tion, or dismantlement of public works

or buildings. Other Federal agencies are or offer accepted, determine what action shall be taken, such as making an inde

requested to comply therewith in conpendent investigation or considering the

ducting their purchasing and contracting eligibility of the contractor as a future

operations. contractor in accordance with estab

§ 1-1.602 Establishment and maintelished procedure.

nance of a list of firms or individuals § 1-1.508–3 Misrepresentations or vio

debarred or ineligible. lations of the covenant against con

(a) Each executive agency shall estabtingent fees.

lish and maintain, on the bases contained In case of misrepresentation, or viola- in section 1-1.603, a consolidated list of tion or breach of the covenant against firms and individuals to whom contracts contingent fees, or some other relevant will not be awarded and from whom bids impropriety, the executive agency con- or proposals will not be solicited as procerned shall take one or more of the fol- vided in section 1-1.604. lowing actions, or other action, as may (b) The list shall show as a minimum be appropriate:

the following information: (a) If an award has not been made,

(1) The names of those firms or inor offer has not been accepted, determine dividuals debarred or ineligible (in alwhether the bid or offer should be

phabetical order) with appropriate cross rejected.

reference where more than one name is (b) If an award has been made or of- involved in a single action; fer has been accepted, take action to en

(2) The basis of authority for each force the covenant in accordance with action; its terms; that is, as the best interests of

(3) The extent of restrictions imthe Government may appear, annul the

posed; and contract without liability or recover the amount of the fee involved.

(4) The termination date for each

debarred listing. (c) Consider the future eligibility as a contractor of the bidder or contractor in

(c) Each executive agency shall deteraccordance with established procedure.

mine, in its discretion, as the interests

of the national security may require, the (d) Determine whether the

case

necessity for and degree of classification should be referred to the Department of

of its list and correspondence relating Justice in accordance with established

thereto. If the agency determines that procedure with respect to determining

its list shall not be classified, the list matters of fraud or criminal conduct.

should be marked "For Official Use Only” § 1-1.509 Preservation of records. or with a word or phrase of equivalent

meaning. Executive agencies shall preserve, for enforcement or report purposes, at least

(d) The list shall be kept current by one executed copy of any representation

issuance of notices of additions and deand completed Standard Form 119 (or

letions. statement in lieu of form), together

§ 1-1.603 Bases for debarment and inwith a record of any other pertinent data, eligible list entry. including data as to action taken.

Entry shall be made on the debarment Subpart 1-1.6-Debarred and and ineligible list of firms or individuals

on the following bases: Ineligible Bidders

(a) Those listed by the Comptroller § 1-1.601 Purpose.

General in accordance with the proThis subpart prescribes policies and visions of section 3 of the Walsh-Healey procedures relating to the debarment of Public Contracts Act (41 U.S.C. 37), bidders for any cause and ineligibility of which have been found by the Secrebidders under section la of the Walsh- tary of Labor to have violated any of

74064 0-62-4

Page 29

the agreements or representations re- § 1-1.604 Treatment to be accorded quired by that Act.

firms or individuals in debarred or (b) Those listed by the Comptroller

ineligible status. General in accordance with the provi- Firms or individuals listed by the sions of section 3 of the Davis-Bacon Act

agency as debarred or ineligible shall be (40 U.S.C. 276a-2(a)), as found by the treated as follows: Comptroller General to have violated

(a) Total restrictions. Contracts shall said Act.

not be awarded to firms or individuals (c) Those listed by the Comptroller that are listed on the basis of section General in accordance with the provi- 1-1.603 (a), (b), or (d), or to any firm, sions of Part 5, Section 5.6(b) of the corporation, partnership, or association Regulations of the Secretary of Labor in which such firm or individual has a issued pursuant to authority granted un- controlling interest, nor shall bids or der Reorganization Plan 14 of 1950, as proposals be solicited therefrom. Howfound by the Secretary of Labor to be ever, when it is determined essential in in aggravated or willful violation of the the public interest by the head of an prevailing wage or overtime pay provi- agency or his designee, an exception may sions of any of the following statutes- be made with respect to a particular pro(1) Davis-Bacon Act (40 U.S.C.

curement action even when a firm or

individual is listed as debarred on the 276a).

basis of section 1-1.603(d). (2) Anti-Kickback Act (18 U.S.C. 874, 40 U.S.C. 276b, c).

(b) Restrictions under statutes desig

nated in the regulations of the Secretary (3) Eight-Hour Law (40 U.S.C. 321).

of Labor. A contractor listed on the basis (4) National Housing Act (12 U.S.C. of section 1-1.603(c), or any firm, cor1703).

poration, partnership, or association in (5) Hospital Survey and Construc- which such contractor has a controlling tion Act (42 U.S.C. 291).

interest, shall be ineligible for a period (6) Federal Airport Act (49 U.S.C.

of three years (from the date of publi1101).

cation by the Comptroller General) to

receive any contracts subject to any of (7) Housing Act of 1949 (42 U.S.C.

the statutes listed in section 1-1.603(c). 1401).

(c) Buy American Act restrictions. (8) School Survey and Construction

As specified in the Buy American Act (41 Act of 1950 (20 U.S.C. 251).

U.S.C. 10b(b)), contracts shall not be (9) Defense Housing and Commu

awarded for construction, alteration, or nity Facilities and Services Act of 1951

repair of public buildings or public works (42 U.S.C. 1591).

in the continental United States or else(d) Those the executive agency de- where to firms or individuals listed on the termines to debar administratively for basis of section 1-1.603, nor shall bids any of the causes and under all of the or proposals therefor be solicited thereappropriate conditions listed in section from. However, firms or individuals 1-1.605.

listed on this basis may be awarded con(e) Those determined by an executive

tracts and may be solicited for bids or agency in accordance with section 3(b) proposals for other than construction, of the Buy American Act (41 U.S.C.

alteration, or repair of public buildings 10b(b)) to have failed to comply with

or public works in the continental United the provisions of section 3(a) of that Act

States or elsewhere. under any contract containing the (d) Ineligibility restrictions of the specific provision required by said section Walsh-Healey Act. Contracts shall not 3(a) and made by the agency for con- be awarded to firms or individuals in any struction, alteration, or repair of any amount exceeding $10,000 for those mapublic building or public work.

erials, supplies, articles, or equipment (f) Those found by the Secretary of with respect to which the firm or indiLabor ineligible to be awarded contracts vidual has been found to be ineligible for the reason that they do not qualify to be awarded a contract by the Secretary as “manufacturers” or “regular dealers"

of Labor,

as

provided in section within the meaning of section 1(a) of the 1-1.603 (f). However, firms or individWalsh-Healey Public Contracts Act (41 uals listed on this basis may, in the disU.S.C. 35(a)).

cretion of each executive agency, be awarded contracts and may be solicited the decision to debar is still within the by bids or proposals, for (1) such ma- discretion of the executive agency conterials, supplies, articles, or equipment cerned. The seriousness of the offense, when the amount does not exceed the civil satisfaction received by the Gov$10,000; (2) services regardless of ernment or available to the Government, amount; and (3) commodities in which and all mitigating factors should be connot declared ineligible regardless of sidered in making the determination to amount.

debar. § 1-1.605 Causes and conditions appli

(3) Cause (a) (3) shall be estabcable to determination of debarment

lished by evidence which the executive by an executive agency.

agency determines to be clear and

convincing. Each executive agency is authorized to

(4) Debarment for cause (a) (4) debar in the public interest a firm or individual for any of the causes and under

shall be made on the same bases as pro

vided for whichever of causes (a) (1) to all appropriate conditions listed:

(3) is appropriate, and may be based (a) Causes.

entirely upon the record of facts obtained (1) Conviction for commisison of a by the original debarring agency, or criminal offense as an incident to obtain- upon a combination of additional facts ing a contract or in an attempt to obtain with the record of facts of the original a contract or in the performance thereof. debarring agency. (2) Conviction under the Federal

(5) The debarment shall be for a Antitrust Statutes arising out of the sub

reasonable, definitely stated period of mission of bids or proposals.

time commensurate with the serious(3) Violation of contract provisions, ness of the offense. as set forth below, of a character which

(6) The firm or individual shall be is regarded by the agency involved to

given written notice of the debarment or be so serious as to justify debarment

of the intent to debar, except in the case action

of cause (a) (4). The notice shall state, (i) Willful failure to perform in as a minimum, the period of the proposed accordance with the specifications or

debarment, including effective dates; the within the time limit provided in the

reasons for debarment, including a statecontract.

ment of the specific instances of dere(ii) A history of unsatisfactory liction; and shall provide reasonable performance of one or more Government

opportunity for the contractor to present contracts.

information for consideration upon his (iii) Violation of the contractual behalf. When the contractor does preprovision against contingent fees.

sent such information he shall be given (iv) Acceptance of a contingent

written notice of the final decision, and, fee, which is paid in violation of con

if the decision provides for debarment, tractual provision against contingent

the period and effective dates thereof. fees.

§ 1-1.606 Agency procedure. (4) Debarment by some other executive agency.

Each executive agency shall: (b) Conditions.

(a) Establish internal procedures and

methods for giving effect to this Sub(1) Debarment for any of the causes

part 1-1.6. of (a) shall be made only upon approval of the head of the executive agency or

(b) Notify the General Services Adhis duly authorized representative.

ministration (GSA) of the name and

address of its central office where de(2) Causes (a) (1) and (2) shall

barment information should be sent. have been established by criminal conviction by a court of competent jurisdic

(c) Furnish to GSA at time of issuance tion. In the event appeal taken from a copy of the notice of debarment on such conviction results in reversal of

those debarments made under provisions conviction, the debarment shall be re

of section 1-1.605(a), or the Buy Amermoved if the bidder so requests. Crim

ican Act, and of any removals from such inal conviction for the above mentioned

debarments. offenses does not necessarily require that (d) Check the list of debarred bidders the firm or individual be debarred, since furnished by GSA, and consider firms or individuals listed thereon for inclusion the Small Business Administration and upon its own list, in accordance with the the Government agencies having proprovisions of this Subpart 1-1.6.

curement responsibility, sets forth (1) (e) As needed, request from GSA a procurement policy with reference to copy of the notice on any debarment case

small business concerns; (2) policy govappearing on the list herein provided to

erning relationship 02 procurement be compiled and distributed by GSA. If

agencies with SBA; (3) SBA certificate desired, direct inquiry concerning any

of competency program; (4) small busidebarment case may be made of the

ness set-aside procedures; (5) small agency which originated the action.

business subcontracting policies; and (f) Make its list available to all con

(6) information concerning SBA's size tracting officers within the agency.

standards.

(b) This subpart applies only in the (24 F.R. 1933, Mar. 17, 1959, as amended at 24 F.R. 4454, June 2, 1959)

United States, its possessions, and Puerto

Rico. § 1-1.607 General Services Administration responsibility,

§ 1-1.701 Definitions. In addition to the agency procedure

The definitions in this section apply provided in section 1-1.606, GSA will: throughout this Subpart 1-1.7. Those (a) Compile and distribute to the des

definitions relating to SBA size standignated central office address of each

ards for procurement purposes are based agency a listing of the administrative

on the governing regulations of SBA on debarments and debarments under the

the subject (13 CFR Part 121). Buy American Act taken by the agencies, including the basis of action, in order § 1-1.701-1 Small business concern (for that each executive agency may be in

Government procurement). formed of actions taken by each other

(a) (1) General definition. Except as agency. In general application, this listing will be for information purposes

provided in (2) and (3) of this § 1-1.701

1(a), a small business concern for the only and it is not intended to take the

purpose of Government procurement is place of, or be an addition to, the lists

a concern, including its affiliates, which maintained by the various agencies.

is independently cwned and operated, is (b) Furnish to any agency, on specific not dominant in the field of operation in request, a copy of the notice reflecting

which it is bidding on Government conthe basis for debarment action taken by

tracts, and (i) its number of employees another agency for causes contained in does not exceed 500 persons, or (ii) it is section 1-1.605(a) or under the Buy

certified as a small business concern by American Act.

SBA. ("Concern” means any business § 1-1.608 Supplemental names included

entity organized for profit with a place for other causes.

of business located in the United States,

its possessions, and Puerto Rico, includNothing in this Subpart 1-1.6 shall

ing but not limited to, an individual, prevent any agency from supplementing

partnership, corporation, joint venture, the consolidated list with names of firms

association, or cooperative.) or individuals administratively deter

(2) Specific industry definitions. mined to be included, in accordance with

Unless certified as a small business conprocedures established by such agency,

cern by SBA, in addition to being indefor causes other than those specifically

pendently owned and operated, and not set forth herein, or from establishing

dominant in its field of operation, a such other lists as any agency, in its

small business concern in order to qualdiscretion, may elect to use.

ify as such must meet special criteria Subpart 1-1.7—Small Business in the following industries: Concerns

(i) Construction industry. For § 1-1.700 General.

the purpose of bidding on construction

contracts, any concern is small if its (a) This subpart, which implements

average annual receipts for the precedprograms developed cooperatively with

ing three fiscal years do not exceed

$5,000,000; except that if the concern is $S 1-1.700 to 1-1.709 under this located in Alaska, such receipts do not subpart appear at 26 F.R. 9196, Sept.

exceed $6,250,000. (“Annual receipts" 30, 1961.

means the annual receipts, less returns