just0094

SUPPORTING STATEMENT
FOR PAPERWORK REDUCTION ACT SUBMISSION
9000-0094, DEBARMENT AND SUSPENSION
(FAR Case No. 99-010)
A.

Justification.

1. Administrative requirements. This is a request for revision
of the information collection requirement currently approved
under OMB Control Number 9000-0094 for Debarment, Suspension, and
Other Responsibility Matters (FAR Subpart 9.1, Subpart 9.4,
52.209-5, 52.212-3(h), and 52.209-6. The revised information
collection requests an increase from the approved level of 91,667
hours to 596,667 hours, based on increased requirements in the
final rule under FAR Case 99-010, Contractor Responsibility,
Labor Relations Costs, and Costs Relating to Legal and Other
Proceedings.
This information collection, in compliance with Executive
Order 12549, Debarment and Suspension, is necessary to determine
the responsibility of prospective contractors, and to ensure that
contractors protect the interests of the Government when issuing
subcontracts under Government contracts.
i. Certification Regarding Debarment, Suspension, Proposed
Debarment, and Other Responsibility Matters (52.209-5 and 52.2123(h)).
•

Purchases shall be made from, and contracts shall be
awarded to, responsible prospective contractors only
(9.103, Policy).

•

To be determined responsible, a prospective contractor
must have a satisfactory record of integrity and business
ethics (9.104-1, General standards).

•

52.209-5, Certification Regarding Debarment, Suspension,
Proposed Debarment, and Other Responsibility Matters is
prescribed at 9.409(a), for use in solicitations where the
contract value is expected to exceed the simplified
acquisition threshold. This requirement is also at
paragraph (h) of the clause 52.212-3, Offeror
Representations and Certifications—Commercial Items,

prescribed at 12.301(b)(2) for use in all solicitations
for acquisition of commercial items. This certification
requires the disclosure of the following critical factors,
to be considered by the contracting officer in making a
responsibility determination:
•

The offeror or any of its principals have been—
• Debarred, suspended, proposed for debarment, declared
ineligible for contract award;
• Convicted of or had a civil judgment rendered against
them or indicted for commission of a fraud or a
criminal offense in connection with obtaining,
attempting to obtain, or performing a public
contract or subcontract, violation of Federal or
state antitrust statutes relating to the submission
of offers, or commission of embezzlement, theft,
forgery, bribery, falsification or destruction of
records, making false statements, tax evasion, or
receiving stolen property;

• The offeror has had a contract terminated for default.
•

The final rule under FAR Case 99-010 revises 9.104-1 to
state that a satisfactory record of integrity and business
ethics must include satisfactory compliance with laws,
including tax laws, labor and employment laws,
environmental laws, antitrust laws, and consumer
protection laws. Therefore, the final rule revises the
certification at 52.209-5 and 52.212-3(h) to also require
each offeror to certify whether, within the past three
years, relative to tax, labor and employment,
environmental, antitrust, or consumer protection laws, the
offeror has—
• Been convicted of a Federal or state felony (or has any
Federal or state felony indictments currently pending
against them);
• Had a Federal court judgement in a civil case brought by
the United States rendered against them;
• Had an adverse decision by a Federal administrative law
judge, board or commission.

•

If the offeror has responded affirmatively, the offeror
shall provide additional information if requested by the
contracting officer.

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•

ii.

The final rule also corrects an error in the application
of paragraph (h) of 52.212-3, limiting it to solicitations
for contracts expected to exceed the simplified
acquisition threshold. The estimates in the presently
approved burden hours assume application above the
simplified acquisition threshold, so no reduction results
from this correction.
Additional information (9.408(a)).

•

When an offeror responds positively to the certification
at 52.209-5 or 52.212-3(h) with regard to an indictment,
charge, civil judgment, conviction, suspension, debarment,
proposed debarment, ineligibility, or default of a
contract, the contracting officer shall request such
additional information from the offeror as the contracting
officer deems necessary in order to make a determination
of the offeror’s responsibility.

•

Under the final rule of FAR Case 99-010, this will also
include a positive response regarding Federal or state
felony convictions or indictments; adverse Federal court
judgment in a civil case brought by the United States; or
an adverse decision by a Federal administrative law judge,
board, or commission for violation of any tax law, labor
or employment law, environmental law, antitrust law or
consumer protection law during the last three years.

iii. Obtaining disclosure from first-tier subcontractors
(52.209-6(b)).
•

Contractors shall not enter into a subcontract greater
than $25,000 with a subcontractor that has been debarred,
suspended, or proposed for debarment, unless there is a
compelling reason to do so (9.405-2(b)).

•

The clause at 52.209-6, Protecting the Government’s
Interest When Subcontracting with Contractor’s Debarred,
Suspended, or Proposed for Debarment, is prescribed at
9.409(b), for use in solicitations and contracts where the
contract value exceeds $25,000. Paragraph (b) requires
that the contractor must require that each proposed firsttier subcontractor disclose to the contractor, in writing,
whether as of the time of award of the subcontract, the
subcontractor is or is not debarred, suspended, or
proposed for debarment by the Government.

iv.

Contractor notification to contracting officer.

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•

Paragraph (c) of clause 52.209-6 requires that before
entering into a subcontract with a party that is debarred,
suspended, or proposed for debarment, a corporate officer
or designee of the contractor must notify the contracting
officer, in writing, of the name of the subcontractor; why
the subcontractor is debarred, suspended, or ineligible;
the compelling reason(s) for doing business with the
subcontractor; and how the Contractor will protect the
Government’s interests when dealing with such
subcontractor.

•

For any subcontract subject to Government consent,
contracting officers shall not consent to such
subcontracts, unless the agency head or a designee states
in writing the compelling reasons for approving such
subcontract (9.405-2(a)).

2. Uses of information. The certifications in 52.209-5 and
52.212-3(h) and the additional information required pursuant to
9.408(a) are used by the contracting officer in evaluating a
firm's responsibility for contract award. The information
provided by the subcontractors under 52.209-6(b) is used by prime
contractors to evaluate the responsibility of the subcontractors.
The information provided by the prime contractor under 52.2096(c) when proposing to subcontract with a subcontractor debarred,
suspended, or proposed for debarment, is used by the contracting
officer in cases where Government consent to subcontractor is
required, and to evaluate the purchasing system of the Contractor
during a Contractor Purchasing System Review.
3. Consideration of information technology. We use improved
information technology to the maximum extent practicable. Where
both the Government agency and contractors are capable of
electronic interchange, the contractors may submit this
information collection requirement electronically.
4. Efforts to identify duplication. This requirement is being
issued under the Federal Acquisition Regulation (FAR) which has
been developed to standardize Federal procurement practices and
eliminate unnecessary duplication. The information requirement
in paragraphs 1.i. and 1.iii. of this section A is only partially
available through GSA’s List of Parties Excluded from Procurement
and Nonprocurement Programs. For example, GSA’s list does not
contain information about an offeror’s convictions, civil
judgments, or indictments. Furthermore, there is always a time
lag between debarment, suspension, or proposed debarment, and
actual appearance on the list. Information requirements in
paragraphs 1.ii. and 1.iv. are not available from any other
source.

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5. If the collection of information impacts small businesses or
other entities, describe methods used to minimize burden. The
burden applied to small businesses is the minimum consistent with
applicable laws, Executive orders, regulations, and prudent
business practices. The provision 52.209-5 and 52.212-3(h) (as
modified) does not apply to solicitations at or below the
simplified acquisition threshold. The clause 52.209-6 only
requires information regarding subcontracts greater than $25,000.
A high percentage of lower dollar value contracts and
subcontracts are awarded to small businesses.
6. Describe consequence to Federal program or policy activities
if the collection is not conducted or is conducted less
frequently. Collection of information on a less frequent basis is
not practical. The information is needed prior to award of a
contract or subcontract to evaluate responsibility, and must be
accurate at time of contract or subcontract award.
7. Special circumstances for collection. Collection is
consistent with guidelines in 5 CFR 1320.6.
8. Efforts to consult with persons outside the agency. Under the
procedures established for development of the FAR, agency and
public comments were solicited and each comment addressed before
finalization of the text. A notice in the December 14, 2006,
(71 FR 75236), Federal Register, as required by 5 CFR 1320.8(d))
made this requirement available to the public and requested
comments.
9. Explanation of any decision to provide any payment or gift to
respondents, other than reenumeration of contractors or
guarantees. There will be no payment or gift to respondents,
other than remuneration of contractors.
10. Describe assurance of confidentiality provided to
respondents. This information is disclosed only to the extent
consistent with prudent business practices and current
regulations.
11. Additional justification for questions of a sensitive
nature. No sensitive questions are involved.
12 & 13. Estimated total annual public hour and cost burden. The
proposed rule required each offeror that responded affirmatively
to the new certification to explain the nature of the violation
and whether any fines, penalties, or damages were assessed and
also permitted the contracting officer to request additional
information. The paperwork burden estimate for the proposed rule
included 375,000 hours for response to the new certification (3

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hours per initial response, .5 hours per subsequent response) and
140,000 hours to supply additional information requested by the
contracting officer (4 hours per initial response and 1 hour per
subsequent response).
The final rule does not require any information other than
the certification, unless requested by the contracting officer.
Therefore, we have reduced the estimated hours per response to 1
hour per initial response and .3 hours per subsequent response,
for a total of 185,000 hours for the certification itself, a
reduction of 190,000 hours. We estimate than in many
acquisitions, the contracting officer will only request
additional information if the otherwise apparently successful
offeror has certified affirmatively. However, in some source
selections, the contracting officer may request such information
from all offerors in the competitive range that certified
affirmatively. Therefore, we still estimate 50,000 additional
requests for information from 30,000 respondents. We have
retained the burden estimate of 4 hours per initial response and
1 hour per subsequent response, for a total of 140,000 hours for
providing additional information.
Several commenters on the proposed rule stated that
businesses wishing to do business with the Government in excess
of the simplified acquisition threshold will have to establish a
system to track compliance and keep it current. As one commenter
stated, no single official at any but the smallest companies is
presently able to keep track of their compliance with all
applicable laws, nor would they have reason to do so. We concur
that most large businesses and some small businesses will
probably establish a system to track such compliance. Such a
system would be required in any complex organization to obtain
the significant reductions that we have built into estimates of
subsequent response time. Therefore, we have included an
estimated average of 6 hours per year for recordkeeping for each
of the 30,000 respondents to the request for additional
information, for a total of 180,000 annual recordkeeping hours.

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Current

Proposed
Increase

TOTAL

Annual Reporting Burden
Number of respondents

89,995

0

89,995

12.22

.56

x 12.78

1,100,000

50,000

1,150,000

Preparation time per response x .083

.318

Number of responses per
respondent per year

x

Total annual responses

Total response burden hours

91,667

325,000

x

.362

416,667

Recordkeeping hours:

180,000

Total burden hours:

596,667

Annual Cost to the Public
Total burden hours

91,667

Average wages + overhead

x

$42*

Total cost to the public

3,850,014

505,000

596,667

$9.97**
$27,160,000

x $51.97

$31,010,014

*$24/hr + 75%OH
**The additional hours are estimated to cost $56 per hour ($32/hr + 75%OH),
which results in an increase in the average cost per hour of $9.97.

14. Estimated cost to the Government. We have reduced the
current estimated cost to the Government because the Government
does not review subcontractor responses to the prime contractor.
Average time required for Government review of the certification
requirement is now estimated at 6 minutes per response, rather
than 5 minutes for 400,000 of the 500,000 responses. However,
for an estimated 100,000 responses in which the contracting
officer must review the data in detail to make a responsibility
determination, we estimate 12 hours per response.
Also, the
Government estimates the need for an additional 400,000 hours to
review the additional information requested with regard to
approximately 50,000 positive responses to the new certification
requirement.

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Current
Total responses to Govt.
Govt. hours/response
Total burden hours

Proposed
Increase

TOTAL

500,072

50,000

550,072

.084

2.675

2.706

41,843

1,606,800 1,488,662

Average wages + overhead ($20/hr + 100% OH)
Total Government cost

x

$40

$65,945,720

15. Explain reasons for program changes or adjustments reported
in Item 13 or 14. The total estimated public burden of 596,667
hours is an increase of 505,000 hours from the 91,667 hours
approved in 1999. This increase in public burden hours is due to
the new requirements under FAR Case 99-010, as explained in
paragraphs 1. and 12.
16. Outline plans for published results of information
collections. Results of this information collection will not be
published.
17. Approval not to display expiration date. We do not seek
approval not to display the expiration date for OMB approval of
the information collection.
18.
Explanation of exception to certification statement. There
are no exceptions to the certification accompanying this
Paperwork Reduction Act submission. The information to
respondents required by 50 CFR 1320.8(b)(3) will be provided in a
separate Federal Register notice announcing the OMB approval of
this collection of information
B.

Collections of Information Employing Statistical
Methods.

Statistical methods are not used in this information collection.

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