9.406-3
Procedures
FAR 9.406-3 mandates fair, transparent, and timely procedures for debarment, ensuring contractors have notice and an opportunity to respond before exclusion from federal contracting.
Overview
FAR 9.406-3 outlines the required procedures agencies must follow when considering the debarment of contractors. It details the steps for investigation, notification, decision-making, and record-keeping to ensure fairness and due process. The regulation ensures contractors are given notice, an opportunity to respond, and a fair hearing before debarment decisions are made. It also covers administrative agreements, voluntary exclusions, and the use of pre-notice letters.
Key Rules
- Investigation and Referral
- Agencies must have prompt procedures for reporting, investigating, and referring potential debarment cases to the suspending and debarring official.
- Decision-Making Process
- Agencies must provide informal, fair procedures allowing contractors to respond to proposed debarments, including opportunities to present evidence and arguments.
- If material facts are disputed, contractors may appear with counsel, present evidence, and confront witnesses, with proceedings transcribed unless waived.
- Notice of Proposal to Debar
- Contractors and affiliates must receive written notice of proposed debarment, reasons, procedures, and their rights, including a 30-day response period.
- Debarring Official’s Decision
- Decisions are based on the administrative record, with timelines for action and requirements for findings of fact if facts are disputed.
- Notice of Decision
- Prompt notification of the decision (to debar or not) must be sent to the contractor and affiliates, specifying reasons and effective dates if debarred.
- Administrative Agreements and Voluntary Exclusions
- If resolved by agreement or voluntary exclusion, officials must upload documentation to FAPIIS or SAM within 3 working days, following FOIA procedures for sensitive information.
- Pre-notice Letters
- Agencies may issue pre-notice letters at their discretion, but these are not required.
Responsibilities
- Contracting Officers: Must ensure proper referral, notification, and adherence to procedural requirements.
- Contractors: Must respond to notices, provide required information, and may contest debarment through specified procedures.
- Agencies: Must maintain fair, timely, and documented processes, and ensure accurate reporting in FAPIIS/SAM.
Practical Implications
- This section ensures due process and transparency in debarment actions, protecting both government interests and contractor rights.
- Contractors must be proactive in responding to notices and providing complete, truthful information.
- Agencies must document all actions and meet strict timelines, with potential consequences for procedural failures.