48 C.F.R. § 9.403

9.403 Definitions.

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As used in this subpart—

Administrative agreement means an agreement between an agency suspending and debarring official and the contractor used to resolve a suspension or debarment proceeding, or a potential suspension or debarment proceeding.

Affiliates. (1) Business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly—

(i) Either one controls or has the power to control the other; or

(ii) A third party controls or has the power to control both.

(2) Indicia of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, common use of employees, or a business entity organized following the debarment, suspension, or proposed debarment of a contractor which has the same or similar management, ownership, or principal employees as the contractor that was debarred, suspended, or proposed for debarment.

Agency means any executive department, military department or defense agency, or other agency or independent establishment of the executive branch.

Civil judgment means the disposition of a civil action by any court of competent jurisdiction, whether by verdict, decision, settlement, stipulation, other disposition that creates a civil liability for the complained of wrongful acts, or a final determination of liability under the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801-3812).

Contractor means any individual or other legal entity that—

(1) Directly or indirectly (e.g., through an affiliate), submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded, a Government contract, including a contract for carriage under Government or commercial bills of lading, or a subcontract under a Government contract; or

(2) Conducts business, or reasonably may be expected to conduct business, with the Government as an agent or representative of another contractor.

Conviction means—

(1) 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

(2) Any other resolution that is the functional equivalent of a judgment establishing a criminal offense by a court of competent jurisdiction, 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.

Indictment means indictment for a criminal offense. An information or other filing by competent authority charging a criminal offense is given the same effect as an indictment.

Legal proceedings means any civil judicial proceeding to which the Government is a party or any criminal proceeding. The term includes appeals from such proceedings.

Nonprocurement Common Rule means the procedures used by Federal Executive Agencies to suspend, debar, or exclude individuals or entities from participation in nonprocurement transactions under Executive Order 12549. Examples of nonprocurement transactions are grants, cooperative agreements, scholarships, fellowships, contracts of assistance, loans, loan guarantees, subsidies, insurance, payments for specified use, and donation agreements. See 2 CFR part 180 and agency enacting regulations in 2 CFR subtitle B.

Pre-notice letter means a written correspondence issued to a contractor in a suspension or debarment matter, which does not immediately result in an exclusion or ineligibility. The letter is issued at the discretion of the suspending and debarring official. The letter is not a mandatory step in the suspension or debarment process.

Unfair trade practices means the commission of any of the following acts by a contractor:

(1) A violation of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) as determined by the International Trade Commission.

(2) A violation, as determined by the Secretary of Commerce, of any agreement of the group known as the “Coordination Committee” for purposes of the Export Administration Act of 1979 (50 U.S.C. App. 2401, et seq.) or any similar bilateral or multilateral export control agreement.

(3) A knowingly false statement regarding a material element of a certification concerning the foreign content of an item of supply, as determined by the Secretary of the Department or the head of the agency to which such certificate was furnished.

Voluntary exclusion means a contractor's written agreement to be excluded for a period under the terms of a settlement between the contractor and the suspending and debarring official of one or more agencies. A voluntary exclusion must have Governmentwide effect.

[48 FR 42142, Sept. 19, 1983, as amended at 54 FR 19814, May 8, 1989; 56 FR 15149, Apr. 15, 1991; 59 FR 11372, Mar. 10, 1994; 60 FR 33065, June 26, 1995; 66 FR 2128, Jan. 10, 2001; 84 FR 19845, May 6, 2019; 90 FR 511, Jan. 3, 2025]

Notes of Decisions

Cited in 17 cases, 1986–2017 · leading case: Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001).

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Impresa Construzioni Geom. Domenico Garufi v. United States, 238 F.3d 1324 (Fed. Cir. 2001). “48 C.F.R. § 9.403 . Furthermore, Carmelo himself was appointed technical manager of Impredil, one of the component companies of JVC, and was listed as a company signatory of Impredil.”

James C. Caiola v. William H. Carroll, 851 F.2d 395 (D.C. Cir. 1988). · cites it 2× “” 48 C.F.R. 9.403. James Caiola and Elsa DeAngelis contend that Carroll’s application of the regulations was unreasonable because his finding that they “had reason to know of the criminal conduct although [they] did not have actual knowledge of the conduct” was not supported by…”

John F. Robinson, Tr. for the Francis E. Heydt Co. v. Richard Cheney, Sec'y, U.S. Dep't of Def., 876 F.2d 152 (D.C. Cir. 1989). · cites it 2× “” 48 C.F.R. § 9.403 . The FAR permit an agency to impute to a contractor the “seriously improper conduct of any officer, director, shareholder, partner, employee, or other individual associated with [the] contractor .”

OSG Prod. Tankers LLC v. United States, 82 Fed. Cl. 570 (Fed. Cl. 2008). “See 48 C.F.R. §§ 9.403 , 9.406-l(b) (noting definition of “affiliate” and when the debarring official may include affiliates of the contractor in the proceedings).”

Burke v. United States Env't Prot. Agency, 127 F. Supp. 2d 235 (D.D.C. 2001). “1989) (noting that in a debarment action an agency may impute improper conduct from one affiliate to another if one controls or can control the other) (citing 48 C.F.R. § 9.403 ). The administrative record also confirms that Burke’s guilty plea and fine were considered as part…”

Shane Meat Co., Inc. & H. Ronald Shane v. United States Dep't of Def. & Def. Logistics Agency, 800 F.2d 334 (3rd Cir. 1986). “48 C.F.R. § 9.403 (1984) provides in relevant part as follows: “ ‘Conviction’ means a judgment or conviction of a criminal offense .”

Agility Def. & Gov't Servs., Inc. v. U.S. Dep't of Def., 739 F.3d 586 (11th Cir. 2013). “See 48 C.F.R. § 9.403 . So long as they are affiliates of Public Warehousing, they can be suspended.”

BMY, a Div. of Harsco Corp. v. United States, 693 F. Supp. 1232 (D.D.C. 1988). “48 C.F.R. § 9.403 (1987). A contractor is “debarred” when it is excluded from participating in government contracts or subcontracts “for a reasonable, specified period.”

United States v. Fred L. Hatfield, Sr., D/B/A Hvac Constr. Co., Inc., 108 F.3d 67 (4th Cir. 1997). “The cause for debarment, if not based on a conviction or judgment, must be established by “a preponderance of the evidence.”

Waterhouse v. United States, 874 F. Supp. 5 (D.D.C. 1994). “In this capacity, he was a government contractor pursuant to 48 C.F.R. § 9.403 . Yassa Yoseph Yassa, owner of Bright Electric Contractors, held a contract for service and maintenance of the commissary from 1987 to 1989 and performed various commissary construction projects.”

Novicki v. Cook, 743 F. Supp. 11 (D.D.C. 1990). “5 Novicki instituted the instant action challenging the DLA decision to debar him and the underlying conclusion that he had reason to know of the fraud. II Before discussing whether the evidence supports the DLA’s conclusion, it is useful to set out basic principles.”

Int'l Exports, Inc. v. Hagel (D.D.C. 2017). · cites it 2× “”), that is codified, in relevant part, at 48 C.F.R. §§ 9.403 and 9.406 (2016). Currently pending before the Court are the Defendants’ Motion for Summary Judgment, ECF No.”

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