81 FR 17121 - Department of State Acquisition Regulation

DEPARTMENT OF STATE

Federal Register Volume 81, Issue 59 (March 28, 2016)

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.

[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]


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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.

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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