34 C.F.R. Subpart D—Responsibilities of ED Officials Regarding Transactions
Title 34 - Education
(a) You as an agency official may not enter into a covered transaction with an excluded person unless you obtain an exception under §85.120. (b) You may not enter into any transaction with a person who is disqualified from that transaction, unless you obtain a waiver or exception under the statute, Executive order, or regulation that is the basis for the person's disqualification. 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. As an agency official, you may not enter into a covered transaction with a participant if you know that a principal of the transaction is excluded, unless you obtain an exception under §85.120. 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. After entering into a covered transaction with a participant, you as an agency official may not approve a participant's use of an excluded person as a principal under that transaction, unless you obtain an exception under §85.120. 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. (a) You as an agency official may continue covered transactions with an excluded person, or under which an excluded person is a principal, if the transactions were in existence when the person was excluded. You are not required to continue the transactions, however, and you may consider termination. You should make a decision about whether to terminate and the type of termination action, if any, only after a thorough review to ensure that the action is proper. (b) You may not renew or extend covered transactions (other than no-cost time extensions) with any excluded person, or under which an excluded person is a principal, unless you obtain an exception under §85.120. (c) Title IV, HEA transactions. If you are a title IV, HEA participant— (1) You may not renew or extend the term of any contract or agreement for the services of an excluded person as a principal with respect to a title IV, HEA transaction; and (2) You may not continue to use the services of that excluded person as a principal under this kind of an agreement or arrangement more than 90 days after you learn of the exclusion or after the close of the Federal fiscal year in which the exclusion takes effect, whichever is later. 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. If a transaction at a lower tier is subject to your approval, you as an agency official may not approve— (a) A covered transaction with a person who is currently excluded, unless you obtain an exception under §85.120; or (b) A transaction with a person who is disqualified from that transaction, unless you obtain a waiver or exception under the statute, Executive order, or regulation that is the basis for the person's disqualification. 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. As an agency official, you must check to see if a person is excluded or disqualified before you— (a) Enter into a primary tier covered transaction; (b) Approve a principal in a primary tier covered transaction; (c) Approve a lower tier participant if agency approval of the lower tier participant is required; or (d) Approve a principal in connection with a lower tier transaction if agency approval of the principal is required. 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. You check to see if a person is excluded or disqualified in two ways: (a) You as an agency official must check the EPLS when you take any action listed in §85.425. (b) You must review information that a participant gives you, as required by §85.335, about its status or the status of the principals of a 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. You as an agency official must require each participant in a primary tier covered transaction to— (a) Comply with subpart C of this part as a condition of participation in the transaction; and (b) Communicate the requirement to comply with Subpart C of this part to persons at the next lower tier with whom the primary tier participant enters into 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. (a) To communicate those requirements, you must include a term or condition in the transaction requiring each participant's compliance with subpart C of this part and requiring the participant to include a similar term or condition in lower-tier covered transactions. (b) The failure of a participant to include a requirement to comply with Subpart C of this part in the agreement with a lower tier participant does not affect the lower tier participant's responsibilities under this part. Authority: E.O. 12549 (3 CFR, 1985 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 66612, Nov. 26, 2003] If a participant knowingly does business with an excluded or disqualified person, you as an agency official may refer the matter for suspension and debarment consideration. You may also disallow costs, annul or terminate the transaction, issue a stop work order, or take any other appropriate remedy. 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. If you as an agency official determine that a participant failed to disclose information, as required by §85.335, at the time it entered into a covered transaction with you, you may— (a) Terminate the transaction for material failure to comply with the terms and conditions of the transaction; or (b) Pursue any other available remedies, including suspension and debarment. 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. If you as an agency official determine that a lower tier participant failed to disclose information, as required by §85.355, at the time it entered into a covered transaction with a participant at the next higher tier, you may pursue any remedies available to you, including the initiation of a suspension or debarment 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.
Title 34: Education
PART 85—GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT)
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 §85.335?
§ 85.455 What may I do if a lower tier participant fails to disclose the information required under §85.355 to the next higher tier?
