Legal Resources | | T42 1769f, 01769f
Duties of the Secretary relating to nonprocurement debarment
(a) Purposes. The purposes of this section are to promote the prevention and deterrence of instances of fraud, bid rigging, and other anticompetitive activities encountered in the procurement of products for child nutrition programs by--
(1) establishing guidelines and a timetable for the Secretary to initiate debarment proceedings, as well as establishing mandatory debarment periods; and
(2) providing training, technical advice, and guidance in identifying and preventing the activities.
(b) Definitions. As used in this section:
(1) Child nutrition program. The term "child nutrition program" means--
(A) the school lunch program established under this Act;
(B) the summer food service program for children established under section 13 [42 USC 1761];
(C) the child and adult care food program established under section 17 [42 USC 1766];
(D) the special milk program established under section 3 of the Child Nutrition Act of 1966 (42 USC 1772);
(E) the school breakfast program established under section 4 of such Act (42 USC 1773); and
(F) the special supplemental nutrition program for women, infants, and children authorized under section 17 of such Act (42 USC 1786).
(2) Contractor. The term "contractor" means a person that contracts with a State, an agency of a State, or a local agency to provide goods or services in relation to the participation of a local agency in a child nutrition program.
(3) Local agency. The term "local agency" means a school, school food authority, child care center, sponsoring organization, or other entity authorized to operate a child nutrition program at the local level.
(4) Nonprocurement debarment. The term "nonprocurement debarment" means an action to bar a person from programs and activities involving Federal financial and nonfinancial assistance, but not including Federal procurement programs and activities.
(5) Person. The term "person" means any individual, corporation, partnership, association, cooperative, or other legal entity, however organized.
(c) Assistance to identify and prevent fraud and anticompetitive activities. The Secretary shall--
(1) in cooperation with any other appropriate individual, organization, or agency, provide advice, training, technical assistance, and guidance (which may include awareness training, training films, and troubleshooting advice) to representatives of States and local agencies regarding means of identifying and preventing fraud and anticompetitive activities relating to the provision of goods or services in conjunction with the participation of a local agency in a child nutrition program; and
(2) provide information to, and fully cooperate with, the Attorney General and State attorneys general regarding investigations of fraud and anticompetitive activities relating to the provision of goods or services in conjunction with the participation of a local agency in a child nutrition program.
(d) Nonprocurement debarment.
(1) In general. Except as provided in paragraph (3) and subsection (e), not later than 180 days after notification of the occurrence of a cause for debarment described in paragraph (2), the Secretary shall initiate nonprocurement debarment proceedings against the contractor who has committed the cause for debarment.
(2) Causes for debarment. Actions requiring initiation of nonprocurement debarment pursuant to paragraph (1) shall include a situation in which a contractor is found guilty in any criminal proceeding, or found liable in any civil or administrative proceeding, in connection with the supplying, providing, or selling of goods or services to any local agency in connection with a child nutrition program, of--
(A) an anticompetitive activity, including bid-rigging, price-fixing, the allocation of customers between competitors, or other violation of Federal or State antitrust laws;
(B) fraud, bribery, theft, forgery, or embezzlement;
(C) knowingly receiving stolen property;
(D) making a false claim or statement; or
(E) any other obstruction of justice.
(3) Exception. If the Secretary determines that a decision on initiating nonprocurement debarment proceedings cannot be made within 180 days after notification of the occurrence of a cause for debarment described in paragraph (2) because of the need to further investigate matters relating to the possible debarment, the Secretary may have such additional time as the Secretary considers necessary to make a decision, but not to exceed an additional 180 days.
(4) Mandatory child nutrition program debarment periods.--
(A) In general. Subject to the other provisions of this paragraph and notwithstanding any other provision of law except subsection (e), if, after deciding to initiate nonprocurement debarment proceedings pursuant to paragraph (1), the Secretary decides to debar a contractor, the debarment shall be for a period of not less than 3 years.
(B) Previous debarment. If the contractor has been previously debarred pursuant to nonprocurement debarment proceedings initiated pursuant to paragraph (1), and the cause for debarment is described in paragraph (2) based on activities that occurred subsequent to the initial debarment, the debarment shall be for a period of not less than 5 years.
(C) Scope. At a minimum, a debarment under this subsection shall serve to bar the contractor for the specified period from contracting to provide goods or services in conjunction with the participation of a local agency in a child nutrition program.
(D) Reversal, reduction, or exception. Nothing in this section shall restrict the ability of the Secretary to--
(i) reverse a debarment decision;
(ii) reduce the period or scope of a debarment;
(iii) grant an exception permitting a debarred contractor to participate in a particular contract to provide goods or services; or
(iv) otherwise settle a debarment action at any time;
in conjunction with the participation of a local agency in a child nutrition program, if the Secretary determines there is good cause for the action, after taking into account factors set forth in paragraphs (1) through (6) of subsection (e).
(5) Information. On request, the Secretary shall present to the Committee on Education and Labor, and the Committee on Agriculture, of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate information regarding the decisions required by this subsection.
(6) Relationship to other authorities. A debarment imposed under this section shall not reduce or diminish the authority of a Federal, State, or local government agency or court to penalize, imprison, fine, suspend, debar, or take other adverse action against a person in a civil, criminal, or administrative proceeding.
(7) Regulations. The Secretary shall issue such regulations as are necessary to carry out this subsection.
(e) Mandatory debarment. Notwithstanding any other provision of this section, the Secretary shall initiate nonprocurement debarment proceedings against the contractor (including any cooperative) who has committed the cause for debarment (as determined under subsection (d)(2)), unless the action--
(1) is likely to have a significant adverse effect on competition or prices in the relevant market or nationally;
(2) will interfere with the ability of a local agency to procure a needed product for a child nutrition program;
(3) is unfair to a person, subsidiary corporation, affiliate, parent company, or local division of a corporation that is not involved in the improper activity that would otherwise result in the debarment;
(4) is likely to have significant adverse economic impacts on the local economy in a manner that is unfair to innocent parties;
(5) is not justified in light of the penalties already imposed on the contractor for violations relevant to the proposed debarment, including any suspension or debarment arising out of the same matter that is imposed by any Federal or State agency; or
(6) is not in the public interest, or otherwise is not in the interests of justice, as determined by the Secretary.
(f) Exhaustion of administrative remedies. Prior to seeking judicial review in a court of competent jurisdiction, a contractor against whom a nonprocurement debarment proceeding has been initiated shall--
(1) exhaust all administrative procedures prescribed by the Secretary; and
(2) receive notice of the final determination of the Secretary.
(g) Information relating to prevention and control of anticompetitive activities. On request, the Secretary shall present to the Committee on Education and Labor, and the Committee on Agriculture, of the House of Representatives and the Committee on Agriculture, Nutrition, and Forestry of the Senate information regarding the activities of the Secretary relating to anticompetitive activities, fraud, nonprocurement debarment, and any waiver granted by the Secretary under this section.
(Oct. 31, 1998, P.L. 105-336.)