9.406-2 Causes for debarment
Source: FAR 9.406-2 on acquisition.gov
FAR 9.406-2 lists specific offenses and failures that can result in a contractor being debarred, emphasizing the importance of integrity, compliance, and disclosure in government contracting.
Overview
FAR 9.406-2 outlines the specific causes for which a contractor or subcontractor may be debarred from government contracting. Debarment is a serious administrative action that excludes a contractor from receiving government contracts and subcontracts for a specified period. The regulation details both mandatory and discretionary grounds for debarment, including criminal convictions, civil judgments, serious contract violations, tax delinquency, failure to disclose certain violations, and other offenses that impact a contractor’s business integrity or responsibility.
Key Rules
- Criminal Convictions and Civil Judgments
- Debarment may result from convictions or judgments involving fraud, criminal offenses, antitrust violations, embezzlement, bribery, tax evasion, or other crimes affecting government contracts.
- Serious Contract Violations
- Willful or repeated failure to perform contract terms, or violations of the Drug-Free Workplace Act, can justify debarment.
- False “Made in America” Labeling
- Intentionally mislabeling products as “Made in America” when they are not is a cause for debarment.
- Unfair Trade Practices and Tax Delinquency
- Engaging in unfair trade practices or having delinquent federal taxes exceeding $10,000 can lead to debarment.
- Failure to Disclose Violations
- Principals must disclose credible evidence of certain violations or overpayments; failure to do so is grounds for debarment.
- Immigration Law Noncompliance
- Noncompliance with employment provisions of the Immigration and Nationality Act, as determined by DHS or DOJ, is a cause for debarment.
- Other Serious Causes
- Any other cause that seriously affects present responsibility may also justify debarment.
Responsibilities
- Contracting Officers: Must review contractor conduct and refer potential debarment cases to the suspending and debarring official.
- Contractors: Must avoid prohibited conduct, maintain compliance with contract terms, disclose required violations, and ensure accurate certifications and labeling.
- Agencies: Oversee contractor performance, investigate allegations, and enforce debarment actions as necessary.
Practical Implications
- This section exists to protect the government from doing business with non-responsible contractors.
- Contractors must maintain high ethical standards and compliance to avoid debarment.
- Common pitfalls include failing to disclose violations, tax delinquency, or misrepresenting product origin.
The suspending and debarring official may debar-
(a) A contractor for a conviction of or civil judgment for-
(1) Commission of fraud or a criminal offense in connection with-
(i) Obtaining;
(ii) Attempting to obtain; or
(iii) Performing a public contract or subcontract.
(2) Violation of Federal or State antitrust statutes relating to the submission of offers;
(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property;
(4) Intentionally affixing a label bearing a "Made in America" inscription (or any inscription having the same meaning) to a product sold in or shipped to the United States or its outlying areas, when the product was not made in the United States or its outlying areas (see Section 202 of the Defense Production Act (Public Law102-558)); or
(5) Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a Government contractor or subcontractor.
(b)
(1) A contractor, based upon a preponderance of the evidence, for any of the following-
(i) Violation of the terms of a Government contract or subcontract so serious as to justify debarment, such as-
(A) Willful failure to perform in accordance with the terms of one or more contracts; or
(B) A history of failure to perform, or of unsatisfactory performance of, one or more contracts.
(ii) Violations of http://uscode.house.gov/view.xhtml?req=granuleid%3AUSC-prelim-title41-chapter81&saved=%7CZ3JhbnVsZWlkOlVTQy1wcmVsaW0tdGl0bGU0MC1jaGFwdGVyMzctZnJvbnQ%3D%7C%7C%7C0%7Cfalse%7Cprelim&edition=prelim" target="_blank">41 U.S.C. chapter 81, Drug-Free Workplace, as indicated by-
(A) Failure to comply with the requirements of the clause at 52.226-7, Drug-Free Workplace; or
(B) Such a number of contractor employees convicted of violations of criminal drug statutes occurring in the workplace as to indicate that the contractor has failed to make a good faith effort to provide a drug-free workplace (see 26.504).
(iii) Intentionally affixing a label bearing a "Made in America" inscription (or any inscription having the same meaning) to a product sold in or shipped to the United States or its outlying areas, when the product was not made in the United States or its outlying areas (see Section 202 of the Defense Production Act (Public Law102-558)).
(iv) Commission of an unfair trade practice as defined in 9.403 (see Section 201 of the Defense Production Act (Pub.L.102-558)).
(v) Delinquent Federal taxes in an amount that exceeds $10;000.
(A) Federal taxes are considered delinquent for purposes of this provision if both of the following criteria apply:
(1) The tax liability is finally determined. The liability is finally determined if it has been assessed. A liability is not finally determined if there is a pending administrative or judicial challenge. In the case of a judicial challenge to the liability, the liability is not finally determined until all judicial appeal rights have been exhausted.
(2) The taxpayer is delinquent in making payment. A taxpayer is delinquent if the taxpayer has failed to pay the tax liability when full payment was due and required. A taxpayer is not delinquent in cases where enforced collection action is precluded.
(B) Examples.
(1) The taxpayer has received a statutory notice of deficiency, under I.R.C. §6212, which entitles the taxpayer to seek Tax Court review of a proposed tax deficiency. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek Tax Court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.
(2) The IRS has filed a notice of Federal tax lien with respect to an assessed tax liability, and the taxpayer has been issued a notice under I.R.C. §6320 entitling the taxpayer to request a hearing with the IRS Office of Appeals contesting the lien filing, and to further appeal to the Tax Court if the IRS determines to sustain the lien filing. In the course of the hearing, the taxpayer is entitled to contest the underlying tax liability because the taxpayer has had no prior opportunity to contest the liability. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek tax court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.
(3) The taxpayer has entered into an installment agreement pursuant to I.R.C. §6159. The taxpayer is making timely payments and is in full compliance with the agreement terms. The taxpayer is not delinquent because the taxpayer is not currently required to make full payment.
(4) The taxpayer has filed for bankruptcy protection. The taxpayer is not delinquent because enforced collection action is stayed under http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title11-section362&num=0&edition=prelim" target="_blank">11 U.S.C. 362 (the Bankruptcy Code).
(vi) Knowing failure by a principal, until 3 years after final payment on any Government contract awarded to the contractor, to timely disclose to the Government, in connection with the award, performance, or closeout of the contract or a subcontract thereunder, credible evidence of-
(A) Violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in Title 18 of the United States Code;
(B) Violation of the civil False Claims Act (http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section3729&num=0&edition=prelim" target="_blank">31 U.S.C. 3729-http://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title31-section3733&num=0&edition=prelim" target="_blank">3733); or
(C) Significant overpayment(s) on the contract, other than overpayments resulting from contract financing payments as defined in 32.001.
(vii) Determination of a false certification under 52.209-13, Violation of Arms Control Treaties or Agreements-Certification.
(2) A contractor, based on a determination by the Secretary of Homeland Security or the Attorney General of the United States, that the contractor is not in compliance with Immigration and Nationality Act employment provisions (see Executive Order 12989, as amended by Executive Order 13286). Such determination is not reviewable in the debarment proceedings.
(c) A contractor or subcontractor based on any other cause of so serious or compelling a nature that it affects the present responsibility of the contractor or subcontractor.