36 C.F.R. §§ 223.136–223.140

5 sections in range

§223.136. Debarment.

36 C.F.R. § 223.136

(a)

General. In accordance with the procedures in § 223.138, the debarring official may in the public interest, debar a purchaser for any of the causes listed in § 223.137. However, the existence of a cause for debarment does not necessarily require that the purchaser be debarred. In making any debarment decision, the debarring official shall consider the seriousness of the purchaser's acts or omissions and any mitigating factors.

(b)

Effect of proposed debarment.

(1)

Upon issuance of a notice of proposed debarment by the debarring official and until the final debarment decision is rendered, the Forest Service shall not solicit or consider bids from, award contracts to, approve a third party agreement with, renew or otherwise extend, except pursuant to the terms of a contract term adjustment, any contract with that purchaser. The Chief of the Forest Service or authorized representative may waive this exclusion upon a written determination identifying compelling reasons to continue doing business with that purchaser pending completion of debarment proceedings.

(2)

In addition to paragraph (b)(1) of this section, issuance of a notice of proposed debarment under § 223.137(g) shall preclude such person from entering into any contract to purchase unprocessed timber originating from Federal lands, and from taking delivery of unprocessed Federal timber from any other party who purchased such timber.

Notes, amendments, and revision history

Amendments

[52 FR 43329, Nov. 12, 1987, as amended at 60 FR 46921, Sept. 8, 1995]

Source

Source: 52 FR 43329, Nov. 12, 1987, unless otherwise noted.

Authority

Authority: 90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16 U.S.C. 618, 104 Stat. 714-726, 16 U.S.C. 620-620j, 25 U.S.C. 3055 and 3057, 113 Stat. 1501a, 16 U.S.C. 528 note; unless otherwise noted. Link to an amendment published at 73 FR 79386, Dec. 29, 2008. This amendment was delayed until Mar. 30, 2009 at 74 FR 5107, Jan. 29, 2009. This amendment was further delayed until May 29, 2009 at 74 FR 14049, Mar. 30, 2009. This amendment was delayed indefinitely at 74 FR 26091, June 1, 2009.

Source

Source: 42 FR 28252, June 2, 1977, unless otherwise noted. Redesignated at 49 FR 2760, Jan. 23, 1984.

Amendments

[52 FR 43329, Nov. 12, 1987, as amended at 60 FR 46921, Sept. 8, 1995]

§223.137. Causes for debarment.

36 C.F.R. § 223.137

The debarring official may debar a purchaser for any of the following causes:

(a)

Conviction of or civil judgment for—

(1)

Theft, forgery, bribery, embezzlement, falsification or destruction of records, making false statements, or receiving stolen property;

(2)

Fraud, a criminal offense, or violation of Federal or State antitrust laws, any of which occurred in connection with obtaining, attempting to obtain, or performing a public contract or subcontract.

(3)

Any other offense indicating a lack of business integrity or honesty that seriously and directly affects the present responsibility of the purchaser.

(b)

A purchaser's debarment from the purchase of timber by another Federal agency which sells timber.

(c)

Cutting and/or removal of more than incidental volumes of timber not designated for the purchaser's cutting from a national forest.

(d)

Substantial violation of the terms of one or more Forest Service timber sale contracts so serious as to justify debarment, such as:

(1)

Willful failure to perform in accordance with contract; or

(2)

A history of failure to perform contract terms; or of unsatisfactory performance of contract terms.

(e)

Among actions the Forest Service regards as so serious as to justify debarment under paragraph (d) of this section are willful violation or repeated failure to perform National Forest System timber sale contract provisions relating to the following:

(1)

Fire suppression, fire prevention, and the disposal of slash;

(2)

Protection of soil, water, wildlife, range, cultural, and timber resources and protection of improvements when such failure causes significant environmental, resource, or improvements damage;

(3)

Removal of designated timber when such failure causes substantial product deterioration or conditions favorable to insect epidemics;

(4)

Observance of restrictions on exportation of timber;

(5)

Observance of restrictions on the disposal of timber from small business set-aside sales;

(6)

Providing access to the Forest Service upon its request to purchaser's books and accounts;

(7)

Payment of monies due under terms of a Forest Service timber sale contract, including payment of damages relating to failure to cut designated timber by the contract termination date;

(8)

Performance of contract by the contract termination date.

(f)

Any other cause so serious or compelling that if affects the present responsibility of a purchaser of Government timber.

(g)

Violation of the Forest Resources Conservation and Shortage Relief Act of 1990 (16 U.S.C. 620, et seq.) (Act) or any regulation or contract issued under the Act.

Notes, amendments, and revision history

Amendments

[52 FR 43329, Nov. 12, 1987, as amended at 60 FR 46921, Sept. 8, 1995]

Source

Source: 52 FR 43329, Nov. 12, 1987, unless otherwise noted.

Authority

Source

Source: 42 FR 28252, June 2, 1977, unless otherwise noted. Redesignated at 49 FR 2760, Jan. 23, 1984.

Amendments

[52 FR 43329, Nov. 12, 1987, as amended at 60 FR 46921, Sept. 8, 1995]

§223.138. Procedures for debarment.

36 C.F.R. § 223.138

(a)

Investigation and referral. Information which may be sufficient cause for debarment of a timber sale purchaser and affiliates shall be reported to the Forest Service Debarring Official. Generally, such information should be referred through the Forest Supervisor and the Regional Forester. The referral shall be accompanied by a complete statement of the facts supported by appropriate exhibits and a recommendation for action. Where the statement of facts indicates a possible criminal offense, except possible antitrust violations, the debarring official shall notify the Office of Inspector General, USDA. Where the statement of facts indicates a possible antitrust violation, the debarring official shall notify the Antitrust Division, Department of Justice.

(b)

Decisionmaking process—

(1)

Notice of proposal to debar. The debarring official shall initiate debarment by advising the purchaser and any specifically named affiliate, by certified mail, return receipt requested. The notice document shall include the following information:

(i)

That debarment is being considered.

(ii)

The reasons for the proposed debarment in terms sufficient to put the recipient on notice of the conduct or transaction(s) upon which it is based.

(iii)

The cause(s) relied upon under § 223.137 for proposing debarment.

(iv)

The specific procedures governing debarment decisionmaking in § 223.138 (b)(1) through (b)(8).

(v)

The effect of the issuance of the notice of proposed debarment pending a final debarment decision (see § 223.136(b)).

(vi)

The potential effect of a debarment.

(2)

Submission in opposition. Within 30 calendar days after receipt of the notice of proposed debarment, the respondent my submit, in person, in writing, or through a representative, information and argument in opposition to and/or in mitigation of the proposed debarment, including any additional specific information that raises a genuine dispute over the material facts.

(3)

Informal hearing. Pursuant to paragraph (b)(2) of this section, a respondent may request an informal hearing with the debarring official. The informal hearing shall be held within 20 calendar days from the date the request is received. The debarring official may postpone the date of the hearing if the respondent requests a postponement in writing. At the hearing, the respondent, appearing personally or through an attorney or other authorized representative, may informally present and explain evidence that causes for debarment do not exist, evidence of any mitigating factors, and arguments concerning the imposition, scope, duration or effects of proposed debarment or debarment. A transcript of the informal hearing shall not be required.

(4)

Additional proceedings as to disputed material facts. In actions not based upon a conviction or civil judgment, if the debarring official finds that and gives notice that the submission in opposition raises a genuine dispute over facts material to the proposed debarment, respondent(s) may request a fact-finding conference on those disputed material facts. Such a conference shall be held within 20 calendar days from the date the request is received unless mutually agreed otherwise. The fact-finding conference shall conform with the following requirements:

(i)

At least 10 days before the fact-finding conference, the debarring official shall send the respondent a copy of all documents in the administrative record as of the date of transmittal and not objected to by the Department of Justice.

(ii)

At the conference, the respondent shall have the opportunity to appear with counsel, submit documentary evidence, present witnesses, and confront any person the Forest Service presents.

(iii)

A transcribed record of any additional proceedings shall be made available at cost to the respondent upon request, unless the respondent and the Forest Service, by mutual agreement, waive the requirement for a transcript.

(5)

Debarring official's decision—

(i)

No additional proceedings necessary. In actions based upon a conviction or civil judgement or in which there is no genuine dispute over material facts, the debarring official shall make a decision on the basis of all the information in the administrative record, including any submission made by the purchaser or any specifically named affiliate. The decision shall be made within 30 working days after receipt of any information and argument submitted, unless the debarring official extends this period for good cause.

(ii)

Additional proceedings necessary.

(A)

In actions in which additional proceedings are necessary to determine disputed material facts, the debarring official shall promptly prepare written findings of fact. The debarring official shall base the decision on the facts as found, together with any information and argument submitted by the purchaser or any specifically named affiliate and any other information in the administrative record.

(B)

The debarring official may refer matters involving disputed material facts to another official for findings of fact. The debarring official may reject any such findings, in whole or in part, only after specifically determining them to be arbitrary and capricious or clearly erroneous.

(C)

The debarring official's decision shall be made after the conclusion of the proceedings with respect to disputed facts.

(6)

Standard of evidence. In any action in which the proposed debarment is not based upon a conviction or civil judgment, the cause for debarment must be established by a preponderance of the evidence. In any action in which the proposed debarment is based upon a conviction or civil judgment, the standard shall be deemed to have been met.

(7)

Notice of debarring official's decision.

(i)

The purchaser and any affiliates involved shall be given prompt notice of the debarring official's decision by certified mail, return receipt requested. If the debarring official decides to impose debarment, the notice shall:

(A)

Refer to the notice of proposed debarment—

(B)

Specify the reasons for debarment;

(C)

State the period of debarment, including effective dates (see § 223.139); and

(D)

Specify any limitations on the terms of the debarment.

(ii)

The debarring official shall also promptly notify Regional Foresters and Forest Supervisors of the decision.

Notes, amendments, and revision history

Amendments

[52 FR 43329, Nov. 12, 1987, as amended at 72 FR 31438, June 7, 2007]

Source

Source: 52 FR 43329, Nov. 12, 1987, unless otherwise noted.

Authority

Source

Source: 42 FR 28252, June 2, 1977, unless otherwise noted. Redesignated at 49 FR 2760, Jan. 23, 1984.

Amendments

[52 FR 43329, Nov. 12, 1987, as amended at 72 FR 31438, June 7, 2007]

§223.139. Period of debarment.

36 C.F.R. § 223.139

(a)

Debarment shall be for a period commensurate with the seriousness of the cause(s):

(1)

The debarring official shall consider any suspension period or period since issuance of the notice of proposed debarment in determining the debarment period.

(2)

Generally, a debarment for those causes listed at § 223.137 (a)-(f) of this subpart should not exceed three (3) years, except as otherwise provided by law.

(3)

A debarment for the causes listed at § 223.137(g) shall not exceed five (5) years.

(b)

The debarring official may extend the debarment for those causes listed at § 223.137 (a)-(f) of this subpart for an additional period if that official determines that an extension is necessary to protect the Government's interest. However:

(1)

A debarment may not be extended solely on the basis of the facts and circumstances upon which the initial debarment action was based;

(2)

If debarment for an additional period is necessary, the debarring official shall initiate and follow the procedures in § 223.138 to extend the debarment.

(c)

The debarring official may consider terminating the debarment or reducing the period or extent of debarment, upon the purchaser's request, supported by documentation, for reasons such as:

(1)

Newly discovered material evidence;

(2)

Reversal of the conviction or judgment upon which the debarment was based;

(3)

Bona fide change in ownership or management;

(4)

Elimination of other causes for which the debarment was imposed; or

(5)

Other reasons the debarring official deems appropriate.

(d)

The debarring official shall make final disposition of a reconsideration request under paragraph (c) of this section in writing within 30 working days of receipt of the reconsideration request and supporting documentation, unless the debarring official extends this period for good cause. The notice of the decision shall set forth the reasons for granting or denying the request.

Notes, amendments, and revision history

Amendments

[52 FR 43329, Nov. 12, 1987, as amended at 60 FR 46921, Sept. 8, 1995]

Source

Source: 52 FR 43329, Nov. 12, 1987, unless otherwise noted.

Authority

Source

Source: 42 FR 28252, June 2, 1977, unless otherwise noted. Redesignated at 49 FR 2760, Jan. 23, 1984.

Amendments

[52 FR 43329, Nov. 12, 1987, as amended at 60 FR 46921, Sept. 8, 1995]

§223.140. Scope of debarment.

36 C.F.R. § 223.140

(a)

Scope in general.

(1)

Debarment of a purchaser constitutes debarment of all divisions or other organizational elements of the purchaser, unless the debarment decision is limited by its terms to specific divisions, organizational elements, or classes of sales.

(2)

The debarring official may extend a debarment decision to include any affiliates of the purchaser, if they are—

(i)

Specifically named and

(ii)

Given written notice of the proposed debarment and provided an opportunity to respond (see § 223.138(b)).

(b)

Imputing conduct. For purposes of determining the scope of debarment, conduct may be imputed as follows:

(1)

The fraudulent, criminal, or other seriously improper conduct of any officer, director, shareholder, partner, employee, or other individual associated with a purchaser may be imputed to a purchaser when the conduct occurred in connection with the individual's performance of duties for or on behalf of the purchaser, or with the purchaser's knowledge, approval, or acquiescence. The purchaser's acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval, or acquiescence.

(2)

The fraudulent, criminal, or other seriously improper conduct of a purchaser may be imputed to any officer, director, shareholder, partner, employee, or other individual associated with the purchaser who participated in, knew of, or has reason to know of the purchaser's conduct.

(3)

The fraudulent, criminal, or other seriously improper conduct of one purchaser participating in a joint venture or similar arrangement may be imputed to other participating purchasers if the conduct occurred for or on behalf of the joint venture or similar arrangement or with the knowledge, approval, or acquiescence of those purchasers. Acceptance of the benefits derived from the conduct shall be evidence of such knowledge, approval or acquiescence.

Notes, amendments, and revision history

Source

Source: 52 FR 43329, Nov. 12, 1987, unless otherwise noted.

Authority

Source

Source: 42 FR 28252, June 2, 1977, unless otherwise noted. Redesignated at 49 FR 2760, Jan. 23, 1984.

36 C.F.R. §§ 223.136–223.140

§223.136. Debarment.

Amendments

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Authority

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Amendments

§223.137. Causes for debarment.

Amendments

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Authority

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Amendments

§223.138. Procedures for debarment.

Amendments

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Authority

Source

Amendments

§223.139. Period of debarment.

Amendments

Source

Authority

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Amendments

§223.140. Scope of debarment.

Source

Authority

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