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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
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
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"
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.
(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
and allowances, of a concern and its affiliates.)
(ii) Food canning and preserving industry. For the purpose of bidding on contracts for food canning and preserving, any concern is small if its number of employees does not exceed 500 persons exclusive of agricultural labor as defined in the Federal Unemployment Tax Act, 26 U.S.C. 3306(k).
(iii) Petroleum refining industry. For the purpose of bidding on contracts for petroleum, other than lubricants and miscellaneous petroleum products, any concern is small if its number of employees does not exceed 1,000 persons and it does not have more than 30,000 barrels-per-day crude-oil capacity from owned and leased facilities. (“Crudeoil capacity” means the maximum daily average crude throughput of a refinery ‘in complete operation, with allowance for necessary shutdown time for routine maintenance, repairs, etc. It approximates the maximum daily average crude runs to stills that can be maintained for an extended period.)
(iv) Aircraft equipment industry. For the purpose of bidding on the aircraft equipment set forth below, any concern is small if its number of employees does not exceed 1,000 persons:
(A) Airframes and structural components.
(B) Aircraft propellers and hubs.
(I) Heating and pressurizing equipment.
(J) Fire control systems.
(L) Flight simulators (except small cockpit trainers). (M) Aircraft de-icing systems.
(v) Air transportation industry. For the purpose of bidding on air transportation contracts, any concern is small if its number of employees does not exceed 1,000 persons.
(vi) Trucking and warehousing industry. For the purpose of bidding on contracts for trucking, warehousing, packing and crating, any concern is small if its annual receipts are $3,000,000 or less, except that if the concern is located in Alaska, such receipts are
$3,750,000 or less. No such concern, however, will be denied small business status for the purpose of Government procurement solely because of its relationship with an interstate van line, provided that its annual receipts have not exceeded $3,000,000 during the concern's most recently completed fiscal year, and provided further no more than 50 percent of such annual receipts are directly attributable to the concern's relationship with an interstate van line.
(3) Labor surplus area small business concerns. If a concern qualifies as a labor surplus area concern (see § 1-1.801), the pertinent size standard (i.e., number of employees or annual receipts) is increased by 25 percent.
(b) Small business non-manufacturer. Any concern which submits a bid or offer in its own name, other than for a construction or service contract, but which proposes to furnish a product not manufactured by itself, is deemed to be a small business concern when:
(1) It is a small business concern within the meaning of $ 1-1.701-1(a), and
(2) In the case of Government procurement reserved for or involving the preferential treatment of small business concerns (including equal low bids), such non-manufacturer shall furnish in the performance of the contract products (i) of a small business manufacturer or producer, and (ii) which are manufactured or produced in the United States, its possessions, or Puerto Rico. However, if the goods to be furnished are wool, worsted, knitwear, duck, webbing and thread (spinning and finishing), non-manufacturers (dealers and converters) shall furnish such products which have been manufactured or produced by a small weaver (small knitter for knitwear) and, if finishing is required, by a small finisher. § 1-1.701-2 Affiliates.
Business concerns are affiliates of each other when either directly or indirectly (a) one concern controls or has the power to control the other, or (b) a third party controls or has the power to control both. In determining whether concerns are independently owned and operated and whether or not affiliation exists, consideration shall be given to all appropriate factors including common ownership, common management, and contractual relationships.