81 FR 17121 - Department of State Acquisition Regulation
DEPARTMENT OF STATE Federal Register Volume 81, Issue 59 (March 28, 2016)
Federal Register Volume 81, Issue 59 (March 28, 2016)
| Page Range | 17121-17123 | |
| FR Document | 2016-06973 |
[Federal Register Volume 81, Number 59 (Monday, March 28, 2016)] [Proposed Rules] [Pages 17121-17123] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-06973] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF STATE 48 CFR Parts 609 and 649 [Public Notice: 9479] RIN 1400-AD90 Department of State Acquisition Regulation AGENCY: Department of State. [[Page 17122]] ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Department of State (DOS) proposes to amend the Department of State Acquisition Regulation (DOSAR) to provide procedural changes relating to the suspension and debarment process. DATES: The Department of State will accept comments on this proposed rule until May 27, 2016. ADDRESSES: You may submit comments by any of the following methods:E-mail: [email protected]. You must include the RIN in the subject line of your message. Mail (paper, disk, or CD-ROM submissions): Ms. Colleen Kosar, Policy Division, Office of the Procurement Executive, A/OPE, 2201 C Street NW., Suite 1060, State Annex Number 15, Washington, DC 20520. Persons with access to the Internet may view this proposed rule and submit comments by visiting the regulations.gov Web site at: http://www.regulations.gov/search/Regs/home.html#home, and searching for docket number DOS-2016-0012. FOR FURTHER INFORMATION CONTACT: Ms. Colleen Kosar, Policy Division, Office of the Procurement Executive, A/OPE, 2201 C Street NW., Suite 1060, State Annex Number 15, Washington, DC 20520. Telephone 703-516- 1685. SUPPLEMENTARY INFORMATION: The purpose of this proposed rule is to update 48 CFR part 609, subpart 609.4, Debarment, Suspension, and Ineligibility and part 649, Termination of Contracts. Primarily, this update simplifies the procedural aspects of the suspension and debarment process, by simplifying the fact-finding process, wherein a single fact-finding official may be used in lieu of a fact-finding panel. Specifically, the proposed rule would: Amend section 609.403-70 to remove the definition of ``Notice,'' and revise the definition of ``fact-finding official.'' Make an editorial change to section 609.405-1. Redesignate section 609.405-70 as section 649.101-70. Amend section 609.406-3(a)(1) to remove references to mandated actions by the Office of the Inspector General (OIG). The OIG is autonomous by statute and not subject to direction from the DOSAR. Make editorial changes to paragraphs 609.406-3(a)(2), (b)(2) and (c)(2). Add paragraph 609.406-3(a)(3) to make it clear that the referral file may be supplemented prior to determining whether or not to propose debarment. Revise paragraphs 609.406-3(b)(3)-(7) to simplify the fact-finding process, wherein a single fact-finding official may be used in lieu of a fact-finding panel and to eliminate specific entitlements and deadlines not required by the FAR. Amend section 609.406-3(d) and 609.407-3(d) to remove ``and to the General Services Administration in accordance with 609.404.'' Amend section 609.407-3(b)(2) to change ``panel'' to ``official.'' Regulatory Findings Administrative Procedure Act In accordance with the provisions of the Administrative Procedure Act governing rules promulgated by federal agencies that affect the public (5 U.S.C. 552 and 553), the Department is publishing this proposed rule and inviting public comment. Regulatory Flexibility Act The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This determination was based on the fact that the changes proposed in this update have no impact on small businesses. The number of small businesses considered for suspension or debarment will not grow or shrink as a result of the proposed changes. The Department analyzed the suspension/debarment actions that occurred in FY14 and no small businesses were impacted. Unfunded Mandates Act of 1995 This proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This proposed rule is not a major rule as defined by the Small Business Regulatory Enforcement Act of 1996 (5 U.S.C. 801 et seq.). This proposed rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and import markets. This determination was based on the fact that the proposed changes are intended to simplify the procedural aspects of the suspension and debarment process. The proposed rule does not place new requirements on contract performance. The proposed rule does not have a significant cost or administrative impact on offerors or contractors. Executive Orders 12866 and 13563 Executive Orders (E.O.) 12866 and 13563 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). E.O. 13563 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department of State does not consider this proposed rule to be an ``economically significant regulatory action'' under Executive Order 12866. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Orders and finds that the benefits of updating this rule outweigh any costs, which the Department assesses to be minimal. Executive Order 13132 This proposed rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this proposed rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. Executive Order 13175 The Department has determined that this proposed rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Executive Order 13175 [[Page 17123]] do not apply to this proposed rulemaking. Paperwork Reduction Act The proposed rule imposes no new or revised information collections under the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35). List of Subjects in 48 CFR Parts 609 and 649 Administrative practice and procedure, Government procurement. For the reasons stated in the preamble, the Department of State proposes to amend 48 CFR chapter 6 as follows: 0 1. The authority citation for 48 CFR parts 609 and 649 continues to read as follows: Authority: 22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 1. PART 609--CONTRACTOR QUALIFICATIONS 0 2. Revise section 609.403-70 to read as follows: 609.403-70 DOSAR definitions. Fact-finding official means the individual designated by the debarring official to conduct additional proceedings as necessary concerning disputed material facts. 609.405-1 [Amended] 0 3. In section 609.405-1, remove ``609.405-70'' and add in its place ``649.101-70''. 609.405-70 [Redesignated as 649.101-70 and Amended] 0 4. Redesignate section 609.405-70 as 649.101-70 and revise the heading of redesignated section 649.101-70 to read as follows: 649.101-70 Termination action decisions after debarment. * * * * * 609.406-3 [Revised] 0 5. In section 609.406-3, revise paragraphs (a), (b)(2)-(b)(7), (c)(2) and (d), to read as follows: 609.406-3 Procedures. (a) Investigation and referral. (1) DOS employees aware of any cause that might serve as the basis for debarment shall refer those cases through the contracting officer to the debarring official. The debarring official shall refer to the Office of the Inspector General all reported cases that involve possible criminal or fraudulent activities for investigation by that office. (2) Referrals for consideration of debarment shall include, as appropriate and available-- (i) The cause for debarment (see FAR 9.406-2); (ii) A statement of facts; (iii) Copies of supporting documentary evidence and a list of all necessary or probable witnesses, including addresses and telephone numbers, together with a statement concerning their availability to appear at a fact-finding proceeding and the subject matter of their testimony; (iv) A list of all contractors involved, either as principals or as affiliates, including current or last known home and business addresses and ZIP codes; (v) A statement of the acquisition history with such contractors; (vi) A statement concerning any known pertinent active or potential criminal investigation, criminal or civil court proceedings, or administrative claim before Boards of Contract Appeals; and (vii) A statement from each DOS organizational element affected by the debarment action as to the impact of a debarment on DOS programs. (3) As deemed appropriate, the debarring official may conduct investigations to supplement the information provided in the referral, or may request investigations by the Office of the Inspector General or other Department office. (b) * * * (2) In response to the debarment notice, if the contractor or its representative notifies the debarring official within 30 days after receipt of the notice that it wants to present information and arguments in person to the debarring official, that official, or a designee, shall chair such a meeting. The oral presentation shall be conducted informally and a transcript need not be made. However, the contractor may supplement its oral presentation with written information and arguments for inclusion in the administrative record. (3) Pursuant to FAR 9.406-3(b)(2), the contractor may request a fact-finding proceeding. (4) The debarring official shall designate a fact-finding official and shall provide the fact-finding official with a copy of all documentary evidence considered in proposing debarment. Upon receipt of such material, the fact-finding official shall notify the contractor and schedule a hearing date. (5) In addition to the purposes provided in FAR 9.406-3(b)(2), the hearing is intended to provide the debarring official with findings of fact based on a preponderance of evidence submitted to the fact-finding official and to provide the debarring official with a determination as to whether a cause for debarment exists, based on the facts as found. (6) The fact-finding proceeding shall be conducted in accordance with procedures determined by the fact-finding official. The rules shall be as informal as is practicable, consistent with FAR 9.406-3(b). The fact-finding official is responsible for making the transcribed record of the hearing, unless the contractor and the fact-finding official agree to waive the requirement for a transcript. (7) The fact-finding official shall deliver written findings and the transcribed record, if made, to the debarring official. The findings shall resolve any facts in dispute based on a preponderance of the evidence presented and recommend whether a cause for debarment exists. (c) * * * (2) When a determination is made to initiate action, the debarring official shall provide to the contractor and any specifically named affiliates written notice in accordance with FAR 9.406-3(c). * * * * * (d) Debarring official's decision. In addition to complying with FAR 9.406-3(d) and FAR 9.406-3(e), the debarring official shall provide single copies of the decision to each DOS organizational element affected by the decision. 609.407-3 [Amended] 0 6. In section 609.407-3: 0 a. In paragraph (b)(2), remove the word ``panel'', and add in its place ``official''. 0 b. In paragraph (d), remove ``and to the General Services Administration in accordance with 609.404''. PART 649--TERMINATION OF CONTRACTS 0 7. In Part 649, add section heading 649.101 to read as follows: 649.101 Authorities and responsibilities. Corey M. Rindner, Procurement Executive, Department of State. [FR Doc. 2016-06973 Filed 3-25-16; 8:45 am] BILLING CODE 4710-24-P
![Federal Register / Vol. 81, No. 59 / Monday, March 28, 2016 / Proposed Rules 17121
more Indian tribes, on the relationship will consider all comments and material bottom, within a 500-yard radius of any
between the Federal Government and received during the comment period. escorted vessel.
Indian tribes, or on the distribution of Your comment can help shape the (b) Definitions. The following
power and responsibilities between the outcome of this rulemaking. If you definitions apply to this section:
Federal Government and Indian tribes. submit a comment, please include the (1) Escorted Vessel. ‘‘Escorted vessel’’
If you believe this proposed rule has docket number for this rulemaking, as used in this section means any
implications for federalism or Indian indicate the specific section of this vessels deemed to be in need of escort
tribes, please contact the person listed document to which each comment protection by the COTP for security
in the FOR FURTHER INFORMATION applies, and provide a reason for each reasons.
CONTACT section above. suggestion or recommendation. (2) Designated Representative. A
We encourage you to submit ‘‘designated representative’’ is any Coast
E. Unfunded Mandates Reform Act comments through the Federal Guard commissioned, warrant or petty
The Unfunded Mandates Reform Act eRulemaking Portal at http:// officer of the Coast Guard who has been
of 1995 (2 U.S.C. 1531–1538) requires www.regulations.gov. If your material designated by the COTP to act on his or
Federal agencies to assess the effects of cannot be submitted using http:// her behalf. The designated
their discretionary regulatory actions. In www.regulations.gov, contact the person representative may be on an official
particular, the Act addresses actions in the FOR FURTHER INFORMATION patrol vessel or may be on shore and
that may result in the expenditure by a CONTACT section of this document for will communicate with vessels via
State, local, or tribal government, in the alternate instructions. VHF–FM radio or loudhailer. In
aggregate, or by the private sector of We accept anonymous comments. All addition, members of the Coast Guard
$100,000,000 (adjusted for inflation) or comments received will be posted Auxiliary may be present to inform
more in any one year. Though this without change to http:// vessel operators of this regulation.
proposed rule would not result in such www.regulations.gov and will include (3) Official Patrol Vessels. ‘‘Official
an expenditure, we do discuss the any personal information you have patrol vessels’’ may consist of any Coast
effects of this rule elsewhere in this provided. For more about privacy and Guard, Coast Guard Auxiliary, state, or
preamble. the docket, you may review a Privacy local law enforcement vessels assigned
Act notice regarding the Federal Docket or approved by the COTP.
F. Environment (c) Regulations. (1) In accordance with
Management System in the March 24,
We have analyzed this proposed rule 2005, issue of the Federal Register (70 the general regulations contained in
under Department of Homeland FR 15086). § 165.33 of this part, entry into or
Security Management Directive 023–01 Documents mentioned in this NPRM movement within this zone is
and Commandant Instruction as being available in the docket, and all prohibited unless previously authorized
M16475.lD, which guide the Coast public comments, will be in our online by the COTP, Sector Long Island Sound
Guard in complying with the National docket at http://www.regulations.gov or his designated representative.
Environmental Policy Act of 1969 (42 and can be viewed by following that (2) All persons and vessels must
U.S.C. 4321–4370f), and have made a Web site’s instructions. Additionally, if comply with the instructions of the
preliminary determination that this you go to the online docket and sign up COTP or the designated representative.
action is one of a category of actions that for email alerts, you will be notified (3) No person may swim upon or
do not individually or cumulatively when comments are posted or a final below the surface of the water of this
have a significant effect on the human rule is published. security zone unless previously
environment. This proposed rule authorized by the COTP or his
involves establishing a security zone List of Subjects in 33 CFR Part 165 designated representative.
and maybe categorically excluded from Harbors, Marine safety, Navigation (4) Upon being hailed by an official
further review under paragraph 34(g) of (water), Reporting and recordkeeping patrol vessel or the designated
Figure 2–1 of Commandant Instruction requirements, Security measures, representative, by siren, radio, flashing
M16475.lD. A preliminary Waterways. light or other means, the operator of the
environmental analysis checklist For the reasons discussed in the vessel shall proceed as directed. Failure
supporting this is available in the preamble, the Coast Guard proposes to to comply with a lawful direction may
docket where indicated under amend 33 CFR part 165 as follows: result in expulsion from the area,
ADDRESSES. We seek any comments or citation for failure to comply, or both.
information that may lead to the PART 165—REGULATED NAVIGATION Dated: March 8, 2016.
discovery of a significant environmental AREA AND LIMITED ACCESS AREAS E.J. Cubanski, III,
impact from this proposed rule. Captain, U.S. Coast Guard, Captain of the
■ 1. The authority citation for part 165
G. Protest Activities Port Sector Long Island Sound.
continues to read as follows:
[FR Doc. 2016–06911 Filed 3–25–16; 8:45 am]
The Coast Guard respects the First Authority: in 33 U.S.C., 1231; 50 U.S.C.
BILLING CODE 9110–04–P
Amendment rights of protesters. 191, 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5;
Protesters are asked to contact the and Department of Homeland Security
person listed in the FOR FURTHER Delegation No. 0170.1.
INFORMATION CONTACT section to DEPARTMENT OF STATE
■ 2. Add § 165.155 to read as follows:
coordinate protest activities so that your
48 CFR Parts 609 and 649
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message can be received without § 165.155 Security Zone, Escorted
jeopardizing the safety or security of Vessels, Sector Long Island Sound Captain [Public Notice: 9479]
people, places, or vessels. of the Port Zone.
(a) Location. The following areas are RIN 1400–AD90
V. Public Participation and Request for security zones: All navigable waters
Comments Department of State Acquisition
within the Sector Long Island Sound
Regulation
We view public participation as Captain of the Port (COTP) Zone,
essential to effective rulemaking, and extending from the surface to the AGENCY: Department of State.
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![Federal Register / Vol. 81, No. 59 / Monday, March 28, 2016 / Proposed Rules 17123
do not apply to this proposed (i) The cause for debarment (see FAR determination as to whether a cause for
rulemaking. 9.406–2); debarment exists, based on the facts as
(ii) A statement of facts; found.
Paperwork Reduction Act (iii) Copies of supporting
The proposed rule imposes no new or (6) The fact-finding proceeding shall
documentary evidence and a list of all
revised information collections under necessary or probable witnesses, be conducted in accordance with
the Paperwork Reduction Act of 1980 including addresses and telephone procedures determined by the fact-
(44 U.S.C. Chapter 35). numbers, together with a statement finding official. The rules shall be as
concerning their availability to appear at informal as is practicable, consistent
List of Subjects in 48 CFR Parts 609 and with FAR 9.406–3(b). The fact-finding
649 a fact-finding proceeding and the
subject matter of their testimony; official is responsible for making the
Administrative practice and (iv) A list of all contractors involved, transcribed record of the hearing, unless
procedure, Government procurement. either as principals or as affiliates, the contractor and the fact-finding
For the reasons stated in the including current or last known home official agree to waive the requirement
preamble, the Department of State and business addresses and ZIP codes; for a transcript.
proposes to amend 48 CFR chapter 6 as (v) A statement of the acquisition (7) The fact-finding official shall
follows: history with such contractors; deliver written findings and the
■ 1. The authority citation for 48 CFR (vi) A statement concerning any
transcribed record, if made, to the
parts 609 and 649 continues to read as known pertinent active or potential
criminal investigation, criminal or civil debarring official. The findings shall
follows: resolve any facts in dispute based on a
court proceedings, or administrative
Authority: 22 U.S.C. 2651a, 40 U.S.C. preponderance of the evidence
121(c) and 48 CFR chapter 1.
claim before Boards of Contract
Appeals; and presented and recommend whether a
(vii) A statement from each DOS cause for debarment exists.
PART 609—CONTRACTOR
QUALIFICATIONS organizational element affected by the (c) * * *
debarment action as to the impact of a
■ 2. Revise section 609.403–70 to read (2) When a determination is made to
debarment on DOS programs.
as follows: (3) As deemed appropriate, the initiate action, the debarring official
debarring official may conduct shall provide to the contractor and any
609.403–70 DOSAR definitions. specifically named affiliates written
investigations to supplement the
Fact-finding official means the information provided in the referral, or notice in accordance with FAR 9.406–
individual designated by the debarring may request investigations by the Office 3(c).
official to conduct additional
of the Inspector General or other * * * * *
proceedings as necessary concerning
Department office. (d) Debarring official’s decision. In
disputed material facts. (b) * * * addition to complying with FAR 9.406–
609.405–1 [Amended] (2) In response to the debarment
3(d) and FAR 9.406–3(e), the debarring
■ 3. In section 609.405–1, remove notice, if the contractor or its
representative notifies the debarring official shall provide single copies of the
‘‘609.405–70’’ and add in its place decision to each DOS organizational
‘‘649.101–70’’. official within 30 days after receipt of
the notice that it wants to present element affected by the decision.
609.405–70 [Redesignated as 649.101–70 information and arguments in person to 609.407–3 [Amended]
and Amended] the debarring official, that official, or a
■ 4. Redesignate section 609.405–70 as designee, shall chair such a meeting. ■ 6. In section 609.407–3:
649.101–70 and revise the heading of The oral presentation shall be ■ a. In paragraph (b)(2), remove the
redesignated section 649.101–70 to read conducted informally and a transcript word ‘‘panel’’, and add in its place
as follows: need not be made. However, the ‘‘official’’.
contractor may supplement its oral
649.101–70 Termination action decisions ■ b. In paragraph (d), remove ‘‘and to
after debarment. presentation with written information
and arguments for inclusion in the the General Services Administration in
* * * * * accordance with 609.404’’.
administrative record.
609.406–3 [Revised] (3) Pursuant to FAR 9.406–3(b)(2), the
contractor may request a fact-finding PART 649—TERMINATION OF
■ 5. In section 609.406–3, revise CONTRACTS
paragraphs (a), (b)(2)–(b)(7), (c)(2) and proceeding.
(d), to read as follows: (4) The debarring official shall
designate a fact-finding official and ■ 7. In Part 649, add section heading
609.406–3 Procedures. shall provide the fact-finding official 649.101 to read as follows:
(a) Investigation and referral. (1) DOS with a copy of all documentary 649.101 Authorities and responsibilities.
employees aware of any cause that evidence considered in proposing
might serve as the basis for debarment debarment. Upon receipt of such Corey M. Rindner,
shall refer those cases through the material, the fact-finding official shall Procurement Executive, Department of State.
contracting officer to the debarring notify the contractor and schedule a [FR Doc. 2016–06973 Filed 3–25–16; 8:45 am]
Lhorne on DSK5TPTVN1PROD with PROPOSALS
official. The debarring official shall refer hearing date.
BILLING CODE 4710–24–P
to the Office of the Inspector General all (5) In addition to the purposes
reported cases that involve possible provided in FAR 9.406–3(b)(2), the
criminal or fraudulent activities for hearing is intended to provide the
investigation by that office. debarring official with findings of fact
(2) Referrals for consideration of based on a preponderance of evidence
debarment shall include, as appropriate submitted to the fact-finding official and
and available— to provide the debarring official with a
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Document Created: 2016-03-26 00:13:09
Document Modified: 2016-03-26 00:13:09
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | The Department of State will accept comments on this proposed rule until May 27, 2016. | |
| Contact | Ms. Colleen Kosar, Policy Division, Office of the Procurement Executive, A/OPE, 2201 C Street NW., Suite 1060, State Annex Number 15, Washington, DC 20520. Telephone 703-516- 1685. | |
| FR Citation | 81 FR 17121 | |
| RIN Number | 1400-AD90 | |
| CFR Citation | 48
CFR
609 48 CFR 649 | |
| CFR Associated | Administrative Practice and Procedure and Government Procurement |
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