EDGAR Part 85 (Govtwide Debarment & Suspension - Nonprocurement)-Subpart A (General)
TITLE 34--EDUCATION
PART 85_GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
Sec.
85.25 How is this part organized?
85.50 How is this part written?
85.75 Do terms in this part have special meanings?
Subpart A_General
85.100 What does this part do?
85.105 Does this part apply to me?
85.110 What is the purpose of the nonprocurement debarment and
suspension system?
85.115 How does an exclusion restrict a person's involvement in covered
transactions?
85.120 May we grant an exception to let an excluded person participate
in a covered transaction?
85.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
85.130 Does exclusion under the Federal procurement system affect a
person's eligibility to participate in nonprocurement
transactions?
85.135 May the Department of Education exclude a person who is not
currently participating in a nonprocurement transaction?
85.140 How do I know if a person is excluded?
85.145 Does this part address persons who are disqualified, as well as
those who are excluded from nonprocurement transactions?
Subpart B_Covered Transactions
85.200 What is a covered transaction?
85.205 Why is it important to know if a particular transaction is a
covered transaction?
85.210 Which nonprocurement transactions are covered transactions?
85.215 Which nonprocurement transactions are not covered transactions?
85.220 Are any procurement contracts included as covered transactions?
85.225 How do I know if a transaction in which I may participate is a
covered transaction?
Subpart C_Responsibilities of Participants Regarding Transactions
Doing Business With Other Persons
85.300 What must I do before I enter into a covered transaction with
another person at the next lower tier?
85.305 May I enter into a covered transaction with an excluded or
disqualified person?
85.310 What must I do if a Federal agency excludes a person with whom I
am already doing business in a covered transaction?
85.315 May I use the services of an excluded person as a principal under
a covered transaction?
85.320 Must I verify that principals of my covered transactions are
eligible to participate?
85.325 What happens if I do business with an excluded person in a
covered transaction?
85.330 What requirements must I pass down to persons at lower tiers with
whom I intend to do business?
Disclosing Information--Primary Tier Participants
85.335 What information must I provide before entering into a covered
transaction with the Department of Education?
85.340 If I disclose unfavorable information required under Sec.
85.335, will I be prevented from participating in the
transaction?
85.345 What happens if I fail to disclose the information required under
Sec. 85.335?
85.350 What must I do if I learn of the information required under Sec.
85.335 after entering into a covered transaction with the
Department of Education?
Disclosing Information--Lower Tier Participants
85.355 What information must I provide to a higher tier participant
before entering into a covered transaction with that
participant?
85.360 What happens if I fail to disclose the information required under
Sec. 85.355?
85.365 What must I do if I learn of information required under Sec.
85.355 after entering into a covered transaction with a higher
tier participant?
Subpart D_Responsibilities of ED Officials Regarding Transactions
85.400 May I enter into a transaction with an excluded or disqualified
person?
85.405 May I enter into a covered transaction with a participant if a
principal of the transaction is excluded?
85.410 May I approve a participant's use of the services of an excluded
person?
85.415 What must I do if a Federal agency excludes the participant or a
principal after I enter into a covered transaction?
85.420 May I approve a transaction with an excluded or disqualified
person at a lower tier?
85.425 When do I check to see if a person is excluded or disqualified?
85.430 How do I check to see if a person is excluded or disqualified?
85.435 What must I require of a primary tier participant?
85.440 What method do I use to communicate those requirements to
participants?
85.445 What action may I take if a primary tier participant knowingly
does business with an excluded or disqualified person?
85.450 What action may I take if a primary tier participant fails to
disclose the information required under Sec. 85.335?
85.455 What may I do if a lower tier participant fails to disclose the
information required under Sec. 85.355 to the next higher
tier?
Subpart E_Excluded Parties List System
85.500 What is the purpose of the Excluded Parties List System (EPLS)?
85.505 Who uses the EPLS?
85.510 Who maintains the EPLS?
85.515 What specific information is in the EPLS?
85.520 Who places the information into the EPLS?
85.525 Whom do I ask if I have questions about a person in the EPLS?
85.530 Where can I find the EPLS?
Subpart F_General Principles Relating to Suspension and Debarment
Actions
85.600 How do suspension and debarment actions start?
85.605 How does suspension differ from debarment?
85.610 What procedures does the Department of Education use in
suspension and debarment actions?
85.611 What procedures do we use for a suspension or debarment action
involving title IV, HEA transaction?
85.612 When does an exclusion by another agency affect the ability of
the excluded person to participate in title IV, HEA
transaction?
85.615 How does the Department of Education notify a person of a
suspension and debarment action?
85.620 Do Federal agencies coordinate suspension and debarment actions?
85.625 What is the scope of a suspension or debarment action?
85.630 May the Department of Education impute the conduct of one person
to another?
85.635 May the Department of Education settle a debarment or suspension
action?
85.640 May a settlement include a voluntary exclusion?
85.645 Do other Federal agencies know if the Department of Education
agrees to a voluntary exclusion?
Subpart G_Suspension
85.700 When may the suspending official issue a suspension?
85.705 What does the suspending official consider in issuing a
suspension?
85.710 When does a suspension take effect?
85.711 When does a suspension affect title IV, HEA transactions?
85.715 What notice does the suspending official give me if I am
suspended?
85.720 How may I contest a suspension?
85.725 How much time do I have to contest a suspension?
85.730 What information must I provide to the suspending official if I
contest a suspension?
85.735 Under what conditions do I get an additional opportunity to
challenge the facts on which the suspension is based?
85.740 Are suspension proceedings formal?
85.745 How is fact-finding conducted?
85.750 What does the suspending official consider in deciding whether to
continue or terminate my suspension?
85.755 When will I know whether the suspension is continued or
terminated?
85.760 How long may my suspension last?
Subpart H_Debarment
85.800 What are the causes for debarment?
85.805 What notice does the debarring official give me if I am proposed
for debarment?
85.810 When does a debarment take effect?
85.811 When does a debarment affect title IV, HEA transactions?
85.815 How may I contest a proposed debarment?
85.820 How much time do I have to contest a proposed debarment?
85.825 What information must I provide to the debarring official if I
contest a proposed debarment?
85.830 Under what conditions do I get an additional opportunity to
challenge the facts on which the proposed debarment is based?
85.835 Are debarment proceedings formal?
85.840 How is fact-finding conducted?
85.845 What does the debarring official consider in deciding whether to
debar me?
85.850 What is the standard of proof in a debarment action?
85.855 Who has the burden of proof in a debarment action?
85.860 What factors may influence the debarring official's decision?
85.865 How long may my debarment last?
85.870 When do I know if the debarring official debars me?
85.875 May I ask the debarring official to reconsider a decision to
debar me?
85.880 What factors may influence the debarring official during
reconsideration?
85.885 May the debarring official extend a debarment?
Subpart I_Definitions
85.900 Adequate evidence.
85.905 Affiliate.
85.910 Agency.
85.915 Agent or representative.
85.920 Civil judgment.
85.925 Conviction.
85.930 Debarment.
85.935 Debarring official.
85.940 Disqualified.
85.942 ED Deciding Official.
85.945 Excluded or exclusion.
85.950 Excluded Parties List System.
85.952 HEA.
85.955 Indictment.
85.960 Ineligible or ineligibility.
85.965 Legal proceedings.
85.970 Nonprocurement transaction.
85.975 Notice.
85.980 Participant.
85.985 Person.
85.990 Preponderance of the evidence.
85.995 Principal.
85.1000 Respondent.
85.1005 State.
85.1010 Suspending official.
85.1015 Suspension.
85.1016 Title IV, HEA participant.
85.1017 Title IV, HEA program.
85.1018 Title IV, HEA transaction.
85.1020 Voluntary exclusion or voluntarily excluded.
Subpart J [Reserved]
Appendix to Part 85--Covered Transactions
Authority: E.O. 12549 (3 CFR 1986 Comp., p.189); E.O. 12698 (3 CFR
1989 Comp., p.235); sec. 2455, Pub. L. 103-355, 108 Stat. 3327 (31
U.S.C. 6101 note); 20 U.S.C. 1082, 1094, 1221e-3, and 3474, unless
otherwise noted.
Source: 68 FR 66544, 66611, 66612, 66613, 66614, Nov. 26, 2003,
unless otherwise noted.
Sec. 85.25 How is this part organized?
(a) This part is subdivided into ten subparts. Each subpart contains
information related to a broad topic or specific audience with special
responsibilities, as shown in the following table:
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In subpart . . . You will find provisions related to . . .
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A............................ general information about this rule.
B............................ the types of ED transactions that are
covered by the Governmentwide
nonprocurement suspension and debarment
system.
C............................ the responsibilities of persons who
participate in covered transactions.
D............................ the responsibilities of ED officials who
are authorized to enter into covered
transactions.
E............................ the responsibilities of Federal agencies
for the Excluded Parties List System
(Disseminated by the General Services
Administration).
F............................ the general principles governing
suspension, debarment, voluntary
exclusion and settlement.
G............................ suspension actions.
H............................ debarment actions.
I............................ definitions of terms used in this part.
J............................ [Reserved]
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(b) The following table shows which subparts may be of special
interest to you, depending on who you are:
------------------------------------------------------------------------
If you are . . . See subpart(s) . . .
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(1) a participant or principal in a A, B, C, and I.
nonprocurement transaction.
(2) a respondent in a suspension action... A, B, F, G and I.
(3) a respondent in a debarment action.... A, B, F, H and I.
(4) a suspending official................. A, B, D, E, F, G and I.
(5) a debarring official.................. A, B, D, E, F, H and I.
(6) a (n) ED official authorized to enter A, B, D, E and I.
into a covered transaction.
(7) Reserved.............................. J.
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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. 85.50 How is this part written?
(a) This part uses a ``plain language'' format to make it easier for
the general public and business community to use. The section headings
and text, often in the form of questions and answers, must be read
together.
(b) Pronouns used within this part, such as ``I'' and ``you,''
change from subpart to subpart depending on the audience being
addressed. The pronoun ``we'' always is the Department of Education.
(c) The ``Covered Transactions'' diagram in the appendix to this
part shows the levels or ``tiers'' at which the Department of Education
enforces an exclusion under this part.
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. 85.75 Do terms in this part have special meanings?
This part uses terms throughout the text that have special meaning.
Those terms are defined in Subpart I of this part. For example, three
important terms are--
(a) Exclusion or excluded, which refers only to discretionary
actions taken by a suspending or debarring official under this part or
the Federal Acquisition Regulation (48 CFR part 9, subpart 9.4);
(b) Disqualification or disqualified, which refers to prohibitions
under specific statutes, executive orders (other than Executive Order
12549 and Executive Order 12689), or other authorities.
Disqualifications frequently are not subject to the discretion of an
agency official, may have a different scope than exclusions, or have
special conditions that apply to the disqualification; and
(c) Ineligibility or ineligible, which generally refers to a person
who is either excluded or disqualified.
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.
Subpart A_General
Sec. 85.100 What does this part do?
This part adopts a governmentwide system of debarment and suspension
for ED nonprocurement activities. It also provides for reciprocal
exclusion of persons who have been excluded under the Federal
Acquisition Regulation, and provides for the consolidated listing of all
persons who are excluded, or disqualified by statute, executive order,
or other legal authority. This part satisfies the requirements in
section 3 of Executive Order 12549, ``Debarment and Suspension'' (3 CFR
1986 Comp., p. 189), Executive Order 12689, ``Debarment and Suspension''
(3 CFR 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Section 2455, Public
Law 103-355, 108 Stat. 3327).
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. 85.105 Does this part apply to me?
Portions of this part (see table at Sec. 85.25(b)) apply to you if
you are a(n)--
(a) Person who has been, is, or may reasonably be expected to be, a
participant or principal in a covered transaction;
(b) Respondent (a person against whom the Department of Education
has initiated a debarment or suspension action);
(c) ED debarring or suspending official; or
(d) ED official who is authorized to enter into covered transactions
with non-Federal parties.
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. 85.110 What is the purpose of the nonprocurement debarment and
suspension system?
(a) To protect the public interest, the Federal Government ensures
the integrity of Federal programs by conducting business only with
responsible persons.
(b) A Federal agency uses the nonprocurement debarment and
suspension system to exclude from Federal programs persons who are not
presently responsible.
(c) An exclusion is a serious action that a Federal agency may take
only to protect the public interest. A Federal agency may not exclude a
person or commodity for the purposes of punishment.
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. 85.115 How does an exclusion restrict a person's involvement in
covered transactions?
With the exceptions stated in Sec. Sec. 85.120, 85.315, and 85.420,
a person who is excluded by the Department of Education or any other
Federal agency may not:
(a) Be a participant in a(n) ED transaction that is a covered
transaction under subpart B of this part;
(b) Be a participant in a transaction of any other Federal agency
that is a covered transaction under that agency's regulation for
debarment and suspension; or
(c) Act as a principal of a person participating in one of those
covered transactions.
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. 85.120 May we grant an exception to let an excluded person
participate in a covered transaction?
(a) The ED Deciding Official may grant an exception permitting an
excluded person to participate in a particular covered transaction. If
the ED Deciding Official grants an exception, the exception must be in
writing and state the reason(s) for deviating from the governmentwide
policy in Executive Order 12549.
(b) An exception granted by one agency for an excluded person does
not extend to the covered transactions of another agency.
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. 85.125 Does an exclusion under the nonprocurement system affect a
person's eligibility for Federal procurement contracts?
If any Federal agency excludes a person under its nonprocurement
common rule on or after August 25, 1995, the excluded person is also
ineligible to participate in Federal procurement transactions under the
FAR. Therefore, an exclusion under this part has reciprocal effect in
Federal procurement transactions.
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. 85.130 Does exclusion under the Federal procurement system affect
a person's eligibility to participate in nonprocurement
transactions?
If any Federal agency excludes a person under the FAR on or after
August 25, 1995, the excluded person is also ineligible to participate
in nonprocurement covered transactions under this part. Therefore, an
exclusion under the FAR has reciprocal effect in Federal
nonprocurement transactions.
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. 85.135 May the Department of Education exclude a person who is
not currently participating in a nonprocurement transaction?
Given a cause that justifies an exclusion under this part, we may
exclude any person who has been involved, is currently involved, or may
reasonably be expected to be involved 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. 85.140 How do I know if a person is excluded?
Check the Excluded Parties List System (EPLS) to determine whether a
person is excluded. The General Services Administration (GSA) maintains
the EPLS and makes it available, as detailed in subpart E of this part.
When a Federal agency takes an action to exclude a person under the
nonprocurement or procurement debarment and suspension system, the
agency enters the information about the excluded person into the EPLS.
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. 85.145 Does this part address persons who are disqualified, as
well as those who are excluded from nonprocurement
transactions?
Except if provided for in Subpart J of this part, this part--
(a) Addresses disqualified persons only to--
(1) Provide for their inclusion in the EPLS; and
(2) State responsibilities of Federal agencies and participants to
check for disqualified persons before entering into covered
transactions.
(b) Does not specify the--
(1) ED transactions for which a disqualified person is ineligible.
Those transactions vary on a case-by-case basis, because they depend on
the language of the specific statute, Executive order, or regulation
that caused the disqualification;
(2) Entities to which the disqualification applies; or
(3) Process that the agency uses to disqualify a person. Unlike
exclusion, disqualification is frequently not a discretionary action
that a Federal agency takes.
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.
EDGAR version June 23, 2005
