EDGAR Part 85 Subpart F (General Principles Relating to Suspension & Debarment Actions)
Subpart F_General Principles Relating to Suspension and Debarment
Actions
Sec. 85.600 How do suspension and debarment actions start?
When we receive information from any source concerning a cause for
suspension or debarment, we will promptly report and investigate it. We
refer the question of whether to suspend or debar you to our suspending
or debarring official for consideration, if appropriate.
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. 85.605 How does suspension differ from debarment?
Suspension differs from debarment in that--
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A suspending official . . . A debarring official . . .
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(a) Imposes suspension as a temporary Imposes debarment for a
status of ineligibility for specified period as a final
procurement and nonprocurement determination that a person is
transactions, pending completion of an not presently responsible.
investigation or legal proceedings.
(b) Must--............................. Must conclude, based on a
(1) Have adequate evidence that there preponderance of the evidence,
may be a cause for debarment of a that the person has engaged in
person; and. conduct that warrants
(2) Conclude that immediate action is debarment.
necessary to protect the Federal
interest.
(c) Usually imposes the suspension Imposes debarment after giving
first, and then promptly notifies the the respondent notice of the
suspended person, giving the person an action and an opportunity to
opportunity to contest the suspension contest the proposed
and have it lifted. debarment.
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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. 85.610 What procedures does the Department of Education use in
suspension and debarment actions?
In deciding whether to suspend or debar you, we handle the actions
as informally as practicable, consistent with principles of fundamental
fairness.
(a) For suspension actions, we use the procedures in this subpart
and subpart G of this part.
(b) For debarment actions, we use the procedures in this subpart and
subpart H of 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. 85.611 What procedures do we use for a suspension or debarment
action involving a title IV, HEA transaction?
(a) If we suspend a title IV, HEA participant under Executive Order
12549, we use the following procedures to ensure that the suspension
prevents participation in title IV, HEA transactions:
(1) The notification procedures in Sec. 85.715.
(2) Instead of the procedures in Sec. 85.720 through Sec. 85.760,
the procedures in 34 CFR part 668, subpart G or 34 CFR part 682, subpart
D or G as applicable.
(3) In addition to the findings and conclusions required by 34 CFR
part 668, subpart G or 34 CFR part 682, subpart D or G, the suspending
official, and, on appeal, the Secretary determines whether there is
sufficient cause for suspension as explained in Sec. 85.700.
(b) If we debar a title IV, HEA participant under E.O. 12549, we use
the following procedures to ensure that the debarment also precludes
participation in title IV, HEA transactions:
(1) The notification procedures in Sec. 85.805 and Sec. 85.870.
(2) Instead of the procedures in Sec. 85.810 through Sec. 85.885,
the procedures in 34 CFR part 668, subpart G or 34 CFR part 682, subpart
D or G, as applicable.
(3) On appeal from a decision debarring a title IV, HEA participant,
we issue a final decision after we receive any written materials from
the parties.
(4) In addition to the findings and conclusions required by 34 CFR
part 668, subpart G or 34 CFR part 682, subpart D or G, the debarring
official, and, on appeal, the Secretary determines whether there is
sufficient cause for debarment as explained in Sec. 85.800.
Authority: E.O. 12549 (3 CFR 1986 Comp., p. 189); E.O. 12689 (3 CFR
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 66612, Nov. 26, 2003]
Sec. 85.612 When does an exclusion by another agency affect the
ability of the excluded person to participate in a title IV,
HEA transaction?
(a) If a title IV, HEA participant is debarred by another agency
under E.O. 12549, using procedures described in paragraph (d) of this
section, that party is not eligible to enter into title IV, HEA
transactions for the duration of the debarment.
(b)(1) If a title IV, HEA participant is suspended by another agency
under E.O. 12549 or under a proposed debarment under the Federal
Acquisition Regulation (FAR) (48 CFR part 9, subpart 9.4), using
procedures described in paragraph (d) of this section, that party is not
eligible to enter into title IV, HEA transactions for the duration of
the suspension.
(2)(i) The suspension of title IV, HEA eligibility as a result of
suspension by another agency lasts for at least 60 days.
(ii) If the excluded party does not object to the suspension, the
60-day period begins on the 35th day after that agency issues the notice
of suspension.
(iii) If the excluded party objects to the suspension, the 60-day
period begins on the date of the decision of the suspending official.
(3) The suspension of title IV, HEA eligibility does not end on the
60th day if--
(i) The excluded party agrees to an extension; or
(ii) Before the 60th day we begin a limitation or termination
proceeding against the excluded party under 34 CFR part 668, subpart G
or part 682, subpart D or G.
(c)(1) If a title IV, HEA participant is debarred or suspended by
another Federal agency--
(i) We notify the participant whether the debarment or suspension
prohibits participation in title IV, HEA transactions; and
(ii) If participation is prohibited, we state the effective date and
duration of the prohibition.
(2) If a debarment or suspension by another agency prohibits
participation in title IV, HEA transactions, that prohibition takes
effect 20 days after we mail notice of our action.
(3) If ED or another Federal agency suspends a title IV, HEA
participant, we determine whether grounds exist for an emergency action
against the participant under 34 CFR part 668, subpart G or part 682,
subpart D or G, as applicable.
(4) We use the procedures in Sec. 85.611 to exclude a title IV, HEA
participant excluded by another Federal agency using procedures that did
not meet the standards in paragraph (d) of this section.
(d) If a title IV, HEA participant is excluded by another agency, we
debar, terminate, or suspend the participant--as provided under this
part, 34 CFR part 668, or 34 CFR part 682, as applicable--if that agency
followed procedures that gave the excluded party--
(1) Notice of the proposed action;
(2) An opportunity to submit and have considered evidence and
argument to oppose the proposed action;
(3) An opportunity to present its objection at a hearing--
(i) At which the agency has the burden of persuasion by a
preponderance of the evidence that there is cause for the exclusion; and
(ii) Conducted by an impartial person who does not also exercise
prosecutorial or investigative responsibilities with respect to the
exclusion action;
(4) An opportunity to present witness testimony, unless the hearing
official finds that there is no genuine dispute about a material fact;
(5) An opportunity to have agency witnesses with personal knowledge
of material facts in genuine dispute testify about those facts, if the
hearing official determines their testimony to be needed, in light of
other available evidence and witnesses; and
(6) A written decision stating findings of fact and conclusions of
law on which the decision is rendered.
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 66613, Nov. 26, 2003]
Sec. 85.615 How does the Department of Education notify a person of a
suspension or debarment action?
(a) The suspending or debarring official sends a written notice to
the last known street address, facsimile number, or e-mail address of--
(1) You or your identified counsel; or
(2) Your agent for service of process, or any of your partners,
officers, directors, owners, or joint venturers.
(b) The notice is effective if sent to any of these persons.
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. 85.620 Do Federal agencies coordinate suspension and debarment
actions?
Yes, when more than one Federal agency has an interest in a
suspension or debarment, the agencies may consider designating one
agency as the lead agency for making the decision. Agencies are
encouraged to establish methods and procedures for coordinating their
suspension and debarment actions.
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. 85.625 What is the scope of a suspension or debarment?
If you are suspended or debarred, the suspension or debarment is
effective as follows:
(a) Your suspension or debarment constitutes suspension or debarment
of all of your divisions and other organizational elements from all
covered transactions, unless the suspension or debarment decision is
limited--
(1) By its terms to one or more specifically identified individuals,
divisions, or other organizational elements; or
(2) To specific types of transactions.
(b) Any affiliate of a participant may be included in a suspension
or debarment action if the suspending or debarring official--
(1) Officially names the affiliate in the notice; and
(2) Gives the affiliate an opportunity to contest the 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. 85.630 May the Department of Education impute conduct of one
person to another?
For purposes of actions taken under this rule, we may impute conduct
as follows:
(a) Conduct imputed from an individual to an organization. We may
impute the fraudulent, criminal, or other improper conduct of any
officer, director, shareholder, partner, employee, or other individual
associated with an organization, to that organization when the improper
conduct occurred in connection with the individual's performance of
duties for or on behalf of that organization, or with the organization's
knowledge, approval or acquiescence. The organization's acceptance of
the benefits derived from the conduct is evidence of knowledge, approval
or acquiescence.
(b) Conduct imputed from an organization to an individual, or
between individuals. We may impute the fraudulent, criminal, or other
improper conduct of any organization to an individual, or from one
individual to another individual, if the individual to whom the improper
conduct is imputed either participated in, had knowledge of, or reason
to know of the improper conduct.
(c) Conduct imputed from one organization to another organization.
We may impute the fraudulent, criminal, or other improper conduct of one
organization to another organization when the improper conduct occurred
in connection with a partnership, joint venture, joint application,
association or similar arrangement, or when the organization to whom the
improper conduct is imputed has the power to direct, manage, control or
influence the activities of the organization responsible for the
improper conduct. Acceptance of the benefits derived from the conduct is
evidence of knowledge, approval or acquiescence.
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. 85.635 May the Department of Education settle a debarment or
suspension action?
Yes, we may settle a debarment or suspension action at any time if
it is in the best interest of the Federal 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. 85.640 May a settlement include a voluntary exclusion?
Yes, if we enter into a settlement with you in which you agree to be
excluded, it is called a voluntary exclusion and has governmentwide
effect.
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. 85.645 Do other Federal agencies know if the Department of
Education agrees to a voluntary exclusion?
(a) Yes, we enter information regarding a voluntary exclusion into
the EPLS.
(b) Also, any agency or person may contact us to find out the
details of a voluntary exclusion.
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
