42 U.S.C. § 1769f : US Code - Section 1769F: Duties of Secretary relating to nonprocurement debarment

Search 42 U.S.C. § 1769f : US Code - Section 1769F: Duties of 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 chapter;
(B) the summer food service program for children established
under section 1761 of this title;
(C) the child and adult care food program established under
section 1766 of this title;
(D) the special milk program established under section 1772
of this title;
(E) the school breakfast program established under section
1773 of this title; and
(F) the special supplemental nutrition program for women,
infants, and children authorized under section 1786 of this
title.
(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) of this
section, 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) of this section, 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) of
this section.
(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) of this section), 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.