[Code of Federal Regulations]
[Title 13, Volume 1]
[Revised as of January 1, 1999]
From the U.S. Government Printing Office via GPO Access
[CITE: 13CFR124.305]
[Page 257-259]
ASSISTANCE
CHAPTER I--SMALL BUSINESS ADMINISTRATION
PART 124--8(A) BUSINESS DEVELOPMENT/SMALL DISADVANTAGED BUSINESS STATUS DETERMINATIONS--Table of Contents
Subpart A--8(a) Business Development
Sec. 124.305 What is suspension and how is a Participant suspended from the 8(a) BD program?
(a) At any time after SBA issues a Letter of Intent to Terminate
pursuant to Sec. 124.304, the AA/8(a)BD may suspend 8(a) contract
support and all other
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forms of 8(a) BD program assistance to that concern until the issue of
the concern's termination from the program is finally decided. The AA/
8(a)BD may suspend a Participant when he or she determines that
suspension is needed to protect the interests of the Federal Government,
such as where information showing a clear lack of program eligibility or
conduct indicating a lack of business integrity exists, including where
the concern or one of its principals submitted false statements to the
Federal Government. SBA will suspend a Participant where SBA determines
that the Participant submitted false information in its 8(a) BD
application.
(b) SBA will issue a Notice of Suspension to the Participant's last
known address by certified mail, return receipt requested. Suspension is
effective as of the date of the issuance of the Notice. The Notice will
provide the following information:
(1) The basis for the suspension;
(2) A statement that the suspension will continue pending the
completion of further investigation, a final program termination
determination, or some other specified period of time;
(3) A statement that awards of competitive and non-competitive 8(a)
contracts, including those which have been ``self-marketed'' by a
Participant, will not be made during the pendency of the suspension
unless it is determined by the head of the relevant procuring agency or
an authorized representative to be in the best interest of the
Government to do so, and SBA adopts that determination;
(4) A statement that the concern is obligated to complete previously
awarded section 8(a) contracts;
(5) A statement that the suspension is effective nationally
throughout SBA;
(6) A statement that a request for a hearing on the suspension will
be considered by an Administrative Law Judge at OHA, and granted or
denied as a matter of discretion.
(7) A statement that the firm's participation in the program is
suspended effective on the date the Notice is served, and that the
program term will resume only if the suspension is lifted or the firm is
not terminated.
(c) The applicant concern may appeal a Notice of Suspension by
filing a petition in accordance with part 134 of this title with OHA
within 45 days of the date of service (as defined in Sec. 134.204) of a
Notice of Suspension pursuant to paragraph (b) of this section. It is
contemplated that in most cases a hearing on the issue of the suspension
will be afforded if the Participant requests one, but authority to grant
a hearing is within the discretion of the Administrative Law Judge in
OHA. A suspension remains in effect pending the result of its appeal.
(d) SBA has the burden of showing that adequate evidence exists that
protection of the Federal Government's interest requires suspension
before OHA or the AA/8(a)BD makes a final determination regarding the
termination action.
(1) The term ``adequate evidence'' means information contained in
the record before the AA/8(a)BD at the time of his or her suspension
decision that is sufficient to support the reasonable belief that the
Government's interests need to be protected.
(2) SBA need not demonstrate that an act or omission actually
occurred in order for OHA to uphold a suspension. SBA's burden in a
suspension proceeding is limited to demonstrating that it had a
reasonable belief that a particular act or omission occurred, and that
that act or omission requires suspension to protect the interests of the
Government.
(3) Unless the Administrative Law Judge consolidates the suspension
and termination proceedings, OHA's review is limited to determining
whether the Government's interests need to be protected, and will not
consider the merits of the termination action.
(e) If there is a timely appeal, the decision of the Administrative
Law Judge is the final SBA decision. If there is not a timely appeal,
the decision of the AA/8(a)BD is the final Agency decision.
(f) Upon the request of SBA, OHA may consolidate suspension and
termination proceedings when the issues presented are identical.
(g) Any program suspension which occurs under this section is
effective
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until such time as SBA lifts the suspension or the Participant's
participation in the program is fully terminated. If the concern is
ultimately not terminated from the 8(a) BD program, the suspension will
be lifted and the length of the suspension will be added to the
concern's program term.
(h) SBA may suspend a Participant from program benefits where a
change of ownership or business structure has been requested if
ownership or control of the participant changed prior to SBA's approval
pending resolution of the request to change its ownership or control. If
the change of ownership is approved, the length of the suspension will
be added to the firm's program term where the change in ownership
results from the death or incapacity of a disadvantaged individual or
where the firm requested prior approval and waited 60 days for SBA
approval before making the change. The suspension will be commenced by
the issuance of a notice similar to that required for termination-
related suspensions under paragraph (b) of this section, except that a
change of ownership suspension is not appealable.
(i) SBA does not recognize the concept of de facto suspension.
Adding time to the end of a Participant's program term equal to the
length of a suspension will occur only where a concern's program
participation has been formally suspended in accordance with the
procedures set forth in this section.
(j) A suspension from 8(a) BD participation under this section has
no effect on a concern's eligibility for non-8(a) Federal Government
contracts. However, a debarment or suspension under the Federal
Acquisition Regulation (48 CFR, chapter 1) will disqualify a concern
from receiving all Federal Government contracts, including 8(a)
contracts.
Business Development