9.407-1 General
Source: FAR 9.407-1 on acquisition.gov
Suspension is a serious, government-wide action taken to protect the government's interests when there is adequate evidence of contractor misconduct, and contractors must act promptly to address any causes for suspension.
Overview
FAR 9.407-1 outlines the general principles and procedures for suspending contractors from government contracting. Suspension is a protective, interim measure taken by the government when there is adequate evidence of misconduct or other causes listed in FAR 9.407-2, and immediate action is deemed necessary to protect the government's interests. The suspending and debarring official has broad discretion in determining the need for suspension and must consider the seriousness of the contractor's actions, as well as any mitigating or aggravating factors. Suspension typically applies to all divisions and affiliates of the contractor unless specifically limited, and is effective government-wide unless an agency head provides a written exception. The regulation also addresses the coordination of suspensions under both the FAR and the Federal Management Regulation (FMR) for acquisition contracts and the purchase of federal personal property.
Key Rules
- Authority to Suspend
- The suspending and debarring official may suspend a contractor in the public interest for causes listed in FAR 9.407-2, following procedures in FAR 9.407-3.
- Basis and Scope of Suspension
- Suspension is based on adequate evidence and is intended to protect the government's interests pending investigation or legal proceedings. It can apply to all divisions and affiliates unless limited.
- Consideration of Factors
- Officials must weigh the seriousness of the contractor's conduct and may consider remedial, mitigating, or aggravating factors. Contractors must present evidence of remedial actions if aware of a cause for suspension.
- Government-wide Effect
- Suspension is effective across the executive branch unless an agency head provides a written justification for continued dealings.
- Dual Suspension Authority
- If the official has authority under both FAR and FMR, suspensions should be coordinated and clearly indicated in the notice.
Responsibilities
- Contracting Officers: Must recognize and enforce suspensions, and ensure no awards are made to suspended contractors.
- Contractors: Must promptly present evidence of remedial or mitigating factors if aware of a suspension cause, and comply with suspension terms.
- Agencies: Must assess evidence, notify affected parties, and ensure suspensions are properly documented and communicated government-wide.
Practical Implications
- This section ensures the government can act quickly to protect its interests when contractor misconduct is suspected. Contractors must be proactive in addressing potential causes for suspension and understand that suspension can have broad, immediate impacts across all business units and affiliates. Failure to respond or remediate can result in loss of eligibility for all federal contracts and property purchases.
(a) The suspending and debarring official may, in the public interest, suspend a contractor for any of the causes in 9.407-2, using the procedures in 9.407-3.
(b)
(1) Suspension is a serious action to be imposed on the basis of adequate evidence, pending the completion of an investigation or legal proceedings, when it has been determined that immediate action is necessary to protect the Government's interest. In deciding whether immediate action is necessary to protect the Government's interest, the suspending and debarring official has wide discretion. The suspending and debarring official may infer the necessity for immediate action to protect the Government's interest either from the nature of the circumstances giving rise to a cause for suspension or from potential business relationships or involvement with a program of the Federal Government. In assessing the adequacy of the evidence, agencies should consider how much information is available, how credible it is given the circumstances, whether or not important allegations are corroborated, and what inferences can reasonably be drawn as a result. This assessment should include an examination of basic documents such as contracts, inspection reports, and correspondence. An indictment or other official findings by Federal, State, or local bodies that determine factual and/or legal matters, constitutes adequate evidence for purposes of suspension actions.
(2) The existence of a cause for suspension does not necessarily require that the contractor be suspended. The suspending and debarring official should consider the seriousness of the contractor's acts or omissions and may, but is not required to, consider remedial measures, mitigating factors, or aggravating factors, such as those in 9.406-1(a). A contractor has the burden of promptly presenting to the suspending and debarring official evidence of remedial measures or mitigating factors when it has reason to know that a cause for suspension exists. The existence or nonexistence of any remedial measures or aggravating or mitigating factors is not necessarily determinative of a contractor's present responsibility.
(c) Suspension constitutes suspension of all divisions or other organizational elements of the contractor, unless the suspension decision is limited by its terms to specific divisions, organizational elements, or commodities. The suspending and debarring official may extend the suspension decision to include any affiliates of the contractor if they are-
(1) Specifically named; and
(2) Given written notice of the suspension and an opportunity to respond (see 9.407-3(c)).
(d) A contractor’s suspension shall be effective throughout the executive branch of the Government, unless the agency head or a designee (except see 26.505(e)) states in writing the compelling reasons justifying continued business dealings between that agency and the contractor.
(e)
(1) When the suspending and debarring official has authority to suspend contractors from both contracts pursuant to the Federal Acquisition Regulation in this chapter and contracts for the purchase of Federal personal property pursuant to Federal Management Regulation (FMR) in 41 CFR part 102-38, that official shall consider simultaneously suspending the contractor from the award of acquisition contracts and from the purchase of Federal personal property.
(2) When suspending a contractor from the award of acquisition contracts and from the purchase of Federal personal property, the suspension notice shall so indicate and the appropriate FAR and FMR citations shall be included.