§ 29.

110 49 CFR Subtitle A (10–1–99 Edition)

Person. Any individual, corporation, (3) Suspending Official. For DOT the
partnership, association, unit of gov- designated official is the head of a De-
ernment or legal entity, however orga- partmental operating administration,
nized, except: foreign governments or who may delegate any of his or her
foreign governmental entities, public functions under this part and authorize
international organizations, foreign successive delegations.
government owned (in whole or in part) Suspension. An action taken by a sus-
or controlled entities, and entities con- pending official in accordance with
sisting wholly or partially of foreign these regulations that immediately ex-
governments or foreign governmental cludes a person from participating in
entities. covered transactions for a temporary
Preponderance of the evidence. Proof period, pending completion of an inves-
by information that, compared with tigation and such legal, debarment, or
that opposing it, leads to the conclu- Program Fraud Civil Remedies Act
sion that the fact at issue is more prob- proceedings as may ensue. A person so
ably true than not. excluded is ‘‘suspended.’’
Principal. Officer, director, owner, Voluntary exclusion or voluntarily ex-
partner, key employee, or other person cluded. A status of nonparticipation or
within a participant with primary limited participation in covered trans-
management or supervisory respon- actions assumed by a person pursuant
sibilities; or a person who has a critical to the terms of a settlement.
influence on or substantive control
over a covered transaction, whether or [Amdt. 29–1, 53 FR 19203, 19204, May 26, 1988,
not employed by the participant. Per- as amended at 53 FR 19203, May 26, 1988; 60
FR 33040, 33064, June 26, 1995]
sons who have a critical influence on or
substantive control over a covered § 29.110 Coverage.
transaction are:
(1) Principal investigators. (a) These regulations apply to all per-
Proposal. A solicited or unsolicited sons who have participated, are cur-
bid, application, request, invitation to rently participating or may reasonably
consider or similar communication by be expected to participate in trans-
or on behalf of a person seeking to par- actions under Federal nonprocurement
ticipate or to receive a benefit, directly programs. For purposes of these regula-
or indirectly, in or under a covered tions such transactions will be referred
transaction. to as ‘‘covered transactions.’’
Respondent. A person against whom a (1) Covered transaction. For purposes
debarment or suspension action has of these regulations, a covered trans-
been initiated. action is a primary covered transaction
State. Any of the States of the United or a lower tier covered transaction.
States, the District of Columbia, the Covered transactions at any tier need
Commonwealth of Puerto Rico, any not involve the transfer of Federal
territory or possession of the United funds.
States, or any agency of a State, exclu- (i) Primary covered transaction. Except
sive of institutions of higher education, as noted in paragraph (a)(2) of this sec-
hospitals, and units of local govern- tion, a primary covered transaction is
ment. A State instrumentality will be any nonprocurement transaction be-
considered part of the State govern- tween an agency and a person, regard-
ment if it has a written determination less of type, including: grants, coopera-
from a State government that such tive agreements, scholarships, fellow-
State considers that instrumentality ships, contracts of assistance, loans,
to be an agency of the State govern- loan guarantees, subsidies, insurance,
ment. payments for specified use, donation
Suspending official. An official au- agreements and any other nonprocure-
thorized to impose suspension. The sus- ment transactions between a Federal
pending official is either: agency and a person. Primary covered
(1) The agency head, or transactions also include those trans-
(2) An official designated by the actions specially designated by the
agency head. U.S. Department of Housing and Urban

306

VerDate 29<OCT>99 10:50 Nov 02, 1999 Jkt 183196 PO 00000 Frm 00306 Fmt 8010 Sfmt 8010 Y:\SGML\183196T.XXX pfrm07 PsN: 183196T
 Office of the Secretary of Transportation § 29.115

Development in such agency’s regula- (vii) Other transactions where the ap-
tions governing debarment and suspen- plication of these regulations would be
sion. prohibited by law.
(ii) Lower tier covered transaction. A (b) Relationship to other sections. This
lower tier covered transaction is: section describes the types of trans-
(A) Any transaction between a par- actions to which a debarment or sus-
ticipant and a person other than a pro- pension under the regulations will
curement contract for goods or serv- apply. Subpart B, ‘‘Effect of Action,’’
ices, regardless of type, under a pri- § 29.200, ‘‘Debarment or suspension,’’
mary covered transaction. sets forth the consequences of a debar-
(B) Any procurement contract for ment or suspension. Those con-
goods or services between a participant sequences would obtain only with re-
and a person, regardless of type, ex- spect to participants and principals in
pected to equal or exceed the Federal the covered transactions and activities
procurement small purchase threshold described in § 29.110(a). Sections 29.325,
fixed at 10 U.S.C. 2304(g) and 41 U.S.C. ‘‘Scope of debarment,’’ and 29.420,
253(g) (currently $25,000) under a pri- ‘‘Scope of suspension,’’ govern the ex-
mary covered transaction. tent to which a specific participant or
(C) Any procurement contract for organizational elements of a partici-
pant would be automatically included
goods or services between a participant
within a debarment or suspension ac-
and a person under a covered trans-
tion, and the conditions under which
action, regardless of amount, under
affiliates or persons associated with a
which that person will have a critical
participant may also be brought within
influence on or substantive control
the scope of the action.
over that covered transaction. Such
(c) Relationship to Federal procurement
persons are:
activities. In accordance with E.O. 12689
(1) Principal investigators. and section 2455 of Public Law 103–355,
(2) Providers of federally-required any debarment, suspension, proposed
audit services. debarment or other governmentwide
(2) Exceptions. The following trans- exclusion initiated under the Federal
actions are not covered: Acquisition Regulation (FAR) on or
(i) Statutory entitlements or manda- after August 25, 1995 shall be recog-
tory awards (but not subtier awards nized by and effective for Executive
thereunder which are not themselves Branch agencies and participants as an
mandatory), including deposited funds exclusion under this regulation. Simi-
insured by the Federal Government; larly, any debarment, suspension or
(ii) Direct awards to foreign govern- other governmentwide exclusion initi-
ments or public international organiza- ated under this regulation on or after
tions, or transactions with foreign gov- August 25, 1995 shall be recognized by
ernments or foreign governmental en- and effective for those agencies as a de-
tities, public international organiza- barment or suspension under the FAR.
tions, foreign government owned (in [Amdt. 29–1, 53 FR 19203, 19204, May 26, 1988,
whole or in part) or controlled entities, as amended at 60 FR 33041, 33064, June 26,
entities consisting wholly or partially 1995]
of foreign governments or foreign gov-
ernmental entities; § 29.115 Policy.
(iii) Benefits to an individual as a (a) In order to protect the public in-
personal entitlement without regard to terest, it is the policy of the Federal
the individual’s present responsibility Government to conduct business only
(but benefits received in an individual’s with responsible persons. Debarment
business capacity are not excepted); and suspension are discretionary ac-
(iv) Federal employment; tions that, taken in accordance with
(v) Transactions pursuant to national Executive Order 12549 and these regula-
or agency-recognized emergencies or tions, are appropriate means to imple-
disasters; ment this policy.
(vi) Incidental benefits derived from (b) Debarment and suspension are se-
ordinary governmental operations; and rious actions which shall be used only

307

VerDate 29<OCT>99 10:50 Nov 02, 1999 Jkt 183196 PO 00000 Frm 00307 Fmt 8010 Sfmt 8010 Y:\SGML\183196T.XXX pfrm07 PsN: 183196T