|
 |
|
|
 |
|
||||||||||
Subpart I_Definitions
Sec. 85.900 Adequate evidence.
Adequate evidence means information sufficient to support the
reasonable belief that a particular act or omission has occurred.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.905 Affiliate.
Persons are affiliates of each other if, directly or indirectly,
either one controls or has the power to control the other or a third
person controls or has the power to control both. The ways we use to
determine control include, but are not limited to--
(a) Interlocking management or ownership;
(b) Identity of interests among family members;
(c) Shared facilities and equipment;
(d) Common use of employees; or
(e) A business entity which has been organized following the
exclusion of a person which has the same or similar management,
ownership, or principal employees as the excluded person.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.910 Agency.
Agency means any United States executive department, military
department, defense agency, or any other agency of the executive branch.
Other agencies of the Federal government are not considered ``agencies''
for the purposes of this part unless they issue regulations adopting the
governmentwide Debarment and Suspension system under Executive orders
12549 and 12689.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.915 Agent or representative.
Agent or representative means any person who acts on behalf of, or
who is authorized to commit, a participant in a covered transaction.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.920 Civil judgment.
Civil judgment means the disposition of a civil action by any court
of competent jurisdiction, whether by verdict, decision, settlement,
stipulation, other disposition which creates a civil liability for the
complained of wrongful acts, or a final determination of liability
under the Program Fraud Civil Remedies Act of 1988
(31 U.S.C. 3801-3812).
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.925 Conviction.
Conviction means--
(a) A judgment or any other determination of guilt of a criminal
offense by any court of competent jurisdiction, whether entered upon a
verdict or plea, including a plea of nolo contendere; or
(b) Any other resolution that is the functional equivalent of a
judgment, including probation before judgment and deferred prosecution.
A disposition without the participation of the court is the functional
equivalent of a judgment only if it includes an admission of guilt.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.930 Debarment.
Debarment means an action taken by a debarring official under
subpart H of this part to exclude a person from participating in covered
transactions and transactions covered under the Federal Acquisition
Regulation (48 CFR chapter 1). A person so excluded is debarred.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.935 Debarring official.
(a) Debarring official means an agency official who is authorized to
impose debarment. A debarring official is either--
(1) The agency head; or
(2) An official designated by the agency head.
(b) [Reserved]
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.940 Disqualified.
Disqualified means that a person is prohibited from participating in
specified Federal procurement or nonprocurement transactions as required
under a statute, Executive order (other than Executive Orders 12549 and
12689) or other authority. Examples of disqualifications include persons
prohibited under--
(a) The Davis-Bacon Act (40 U.S.C. 276(a));
(b) The equal employment opportunity acts and Executive orders; or
(c) The Clean Air Act (42 U.S.C. 7606), Clean Water Act (33 U.S.C.
1368) and Executive Order 11738 (3 CFR, 1973 Comp., p. 799).
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.942 ED Deciding Official.
The ED Deciding Official is an ED officer who has delegated
authority under the procedures of the Department of Education to decide
whether to affirm a suspension or enter a debarment.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189), E.O. 12689 ( 3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327.
[68 FR 66614, Nov. 26, 2003]
Sec. 85.945 Excluded or exclusion.
Excluded or exclusion means--
(a) That a person or commodity is prohibited from being a
participant in covered transactions, whether the person has been
suspended; debarred; proposed for debarment under 48 CFR part 9, subpart
9.4; voluntarily excluded; or
(b) The act of excluding a person.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.950 Excluded Parties List System
Excluded Parties List System (EPLS) means the list maintained and
disseminated by the General Services Administration (GSA) containing the
names and other information about persons who are ineligible. The EPLS
system includes the printed version entitled, ``List of Parties Excluded
or Disqualified from Federal Procurement and Nonprocurement Programs,''
so long as published.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.952 HEA.
HEA means the Higher Education Act of 1965, as amended.
[68 FR 66614, Nov. 26, 2003]
Sec. 85.955 Indictment.
Indictment means an indictment for a criminal offense. A
presentment, information, or other filing by a competent authority
charging a criminal offense shall be given the same effect as an
indictment.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.960 Ineligible or ineligibility.
Ineligible or ineligibility means that a person or commodity is
prohibited from covered transactions because of an exclusion or
disqualification.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.965 Legal proceedings.
Legal proceedings means any criminal proceeding or any civil
judicial proceeding, including a proceeding under the Program Fraud
Civil Remedies Act (31 U.S.C. 3801-3812), to which the Federal
Government or a State or local government or quasi-governmental
authority is a party. The term also includes appeals from those
proceedings.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.970 Nonprocurement transaction.
(a) Nonprocurement transaction means any transaction, regardless of
type (except procurement contracts), including, but not limited to the
following:
(1) Grants.
(2) Cooperative agreements.
(3) Scholarships.
(4) Fellowships.
(5) Contracts of assistance.
(6) Loans.
(7) Loan guarantees.
(8) Subsidies.
(9) Insurances.
(10) Payments for specified uses.
(11) Donation agreements.
(b) A nonprocurement transaction at any tier does not require the
transfer of Federal funds.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.975 Notice.
Notice means a written communication served in person, sent by
certified mail or its equivalent, or sent electronically by e-mail or
facsimile. (See Sec. 85. 615.)
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.980 Participant.
Participant means any person who submits a proposal for or who
enters into a covered transaction, including an agent or representative
of a participant.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.985 Person.
Person means any individual, corporation, partnership, association,
unit of government, or legal entity, however organized.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.990 Preponderance of the evidence.
Preponderance of the evidence means proof by information that,
compared with information opposing it, leads to
the conclusion that the fact at issue is more probably true than not.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.995 Principal.
Principal means--
(a) An officer, director, owner, partner, principal investigator, or
other person within a participant with management or supervisory
responsibilities related to a covered transaction; or
(b) A consultant or other person, whether or not employed by the
participant or paid with Federal funds, who--
(1) Is in a position to handle Federal funds;
(2) Is in a position to influence or control the use of those funds;
or,
(3) Occupies a technical or professional position capable of
substantially influencing the development or outcome of an activity
required to perform the covered transaction.
(c) For the purposes of Department of Education title IV, HEA
transactions--
(1) A third-party servicer, as defined in 34 CFR 668.2 or 682.200;
or
(2) Any person who provides services described in 34 CFR 668.2 or
682.200 to a title IV, HEA participant, whether or not that person is
retained or paid directly by the title IV, HEA participant.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.1000 Respondent.
Respondent means a person against whom an agency has initiated a
debarment or suspension action.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.1005 State.
(a) State means--
(1) Any of the states of the United States;
(2) The District of Columbia;
(3) The Commonwealth of Puerto Rico;
(4) Any territory or possession of the United States; or
(5) Any agency or instrumentality of a state.
(b) For purposes of this part, State does not include institutions
of higher education, hospitals, or units of local government.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.1010 Suspending official.
(a) Suspending official means an agency official who is authorized
to impose suspension. The suspending official is either:
(1) The agency head; or
(2) An official designated by the agency head.
(b) [Reserved]
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.1015 Suspension.
Suspension is an action taken by a suspending official under subpart
G of this part that immediately prohibits a person from participating in
covered transactions and transactions covered under the Federal
Acquisition Regulation (48 CFR chapter 1) for a temporary period,
pending completion of an agency investigation and any judicial or
administrative proceedings that may ensue. A person so excluded is
suspended.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455, Pub. L. 103-355, 108 Stat. 3243 at 3327.
Sec. 85.1016 Title IV, HEA participant.
A title IV, HEA participant is--
(a) An institution described in 34 CFR 600.4, 600.5, or 600.6 that
provides postsecondary education; or
(b) A lender, third-party servicer, or guaranty agency, as those
terms are defined in 34 CFR 668.2 or 682.200.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327.
[68 FR 66614, Nov. 26, 2003]
Sec. 85.1017 Title IV, HEA program.
A title IV, HEA program includes any program listed in 34 CFR
668.1(c).
Authority: E.O. 12549 (3 CFR, 1986 Comp., p.1890: E.O. 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327.
[68 FR 66614, Nov. 26, 2003]
Sec. 85.1018 Title IV, HEA transaction.
A title IV, HEA transaction includes:
(a) A disbursement or delivery of funds provided under a title IV,
HEA program to a student or borrower;
(b) A certification by an educational institution of eligibility for
a loan under a title IV, HEA program;
(c) Guaranteeing a loan made under a title IV, HEA program; and
(d) The acquisition or exercise of any servicing responsibility for
a grant, loan, or work study assistance under a title IV, HEA program.
Authority: E.O. 12549 (3 CFR, 1986 Comp., p. 189) E.O. 12689 (3 CFR,
1989 Comp., p. 235); 20 U.S.C. 1082, 1094, 1221e-3 and 3474; and Sec.
2455 of Pub. L. 103-355, 108 Stat. 3243 at 3327.
[68 FR 66614, Nov. 26, 2003]
Sec. 85.1020 Voluntary exclusion or voluntarily excluded.
(a) Voluntary exclusion means a person's agreement to be excluded
under the terms of a settlement between the person and one or more
agencies. Voluntary exclusion must have governmentwide effect.
(b) Voluntarily excluded means the status of a person who has agreed
to a voluntary exclusion.
Subpart J [Reserved]
Appendix to Part 85—Covered Transactions
(Below is the text description of the diagram image:
Non-procurement covered transactions are all
transactions defined in 34 CFR 85.970, unless excluded
under section 85.215. The Appendix consists of a diagram
that shows the relationships among the transactions
covered by 34 CFR Part 85. Covered transactions include
all primary tier and lower tier nonprocurement
transactions. Under these covered primary tier and lower
tier covered non-procurement transactions, certain other
transactions are also covered transactions, as follows:
(1) first tier procurement contracts greater than $25,000;
(2) lower tier procurement contracts greater than $25,000;
(3) first tier procurement contracts subject to agency
consent; (4) lower tier procurement contracts subject to
agency consent; (5) all third part servicer contracts; and
(6) any person who provides the services described in 34
CFR section 668.2 or section 682.200.)
Click here to view diagram image (PDF file)
[68 FR 66614, Nov. 26, 2003]
EDGAR version June 23, 2005