Exclusions on a SAM.gov record: what an exclusion record means and who decides it

Debarment, suspension and voluntary exclusion are the main kinds, and the nonprocurement rule defines the words. Excluded or exclusion means that a person or commodity is prohibited from being a participant in covered transactions. That can be by a suspension, a debarment, a proposed debarment under FAR subpart 9.4 or a voluntary exclusion (2 CFR 180.940). A debarment is an action the agency takes under the rule's debarment subpart. It excludes a person from participating in covered transactions and in transactions covered by the FAR (2 CFR 180.925). A suspension immediately prohibits a person from participating for a temporary period. It lasts pending completion of a federal agency investigation and any judicial or administrative proceedings that may ensue (2 CFR 180.1015). A voluntary exclusion is a person's agreement to be excluded under the terms of a settlement with one or more agencies. It has government-wide effect (2 CFR 180.1020).

A proposed debarment counts too, and two more words appear on records. The FAR treats a contractor proposed for debarment as it treats one under a debarment or a suspension while the proposal is pending (FAR 9.405). The FAR defines a voluntary exclusion as a contractor's written agreement to be excluded for a period under the terms of a settlement (FAR 9.403). Disqualified means a person is prohibited from specified federal transactions as required under a statute, an Executive order or another authority. That is apart from the debarment and suspension orders (2 CFR 180.935). Ineligible means a person or commodity is prohibited from covered transactions because of an exclusion or a disqualification (2 CFR 180.960).

An exclusion is meant to protect the public, not to punish. The nonprocurement rule says an exclusion is a serious action that a federal agency may take only to protect the public interest. An agency may not exclude a person or commodity for the purposes of punishment (2 CFR 180.125). The FAR says the same of debarment and suspension. They are to be imposed only in the public interest for the Government's protection, and only for the causes and under the procedures in that subpart (FAR 9.402).

SAM.gov sorts records into four exclusion types, and its own page describes them. Cause and Treatment codes have been replaced by Exclusion Types, and a record created in SAM.gov carries an Exclusion Type and no CT code. The first is Ineligible (Proceedings Pending). That means preliminarily ineligible, pending completion of an investigation or legal proceedings. The basis is adequate evidence of conduct indicating a lack of business honesty or integrity, or a regulation, statute, Executive order or other legal authority. It also covers ineligibility based upon the initiation of proceedings to determine final ineligibility. Its termination date is listed as Indefinite unless otherwise specified. The second is Ineligible (Proceedings Completed). That means determined ineligible upon completion of administrative proceedings. Those proceedings established, by a preponderance of the evidence, a cause of a serious and compelling nature that affects present responsibility. It also covers ineligibility under another regulation, statute, Executive order or legal authority. The period of ineligibility is specified by the termination date.

The third is Prohibition/Restriction. The page says the party may be subject to sanctions under conditions the Department of the Treasury imposes. For other prohibitions and restrictions, the agency's note in the record's Additional Comments field gives the extent or limit of the restriction. If there is no note, the agency that took the action does. The fourth is Voluntary Exclusion. The party accepted an agreement to be excluded under the terms of a settlement with one or more agencies, and is excluded in accordance with that agreement. Again, the extent is in the agency's note or comes from the agency.

Two more fields sort the records. The classification type says what kind of party the record names. GSA's document for its Exclusions API gives Individual, Firm, Vessel and Special Entity Designation. The exclusion program says which system the action was taken under: Reciprocal, Nonprocurement or Procurement. Reciprocal is the usual case. An exclusion under the nonprocurement system also makes the person ineligible for federal procurement contracts. An exclusion under the FAR also makes the person ineligible for nonprocurement covered transactions. So each has a reciprocal effect on the other (2 CFR 180.140, 2 CFR 180.145).

The agency that took the action enters the record and answers questions about it. Each agency identifies the people responsible for entering and updating exclusions data in SAM. It enters each exclusion it accomplishes, and updates the record when it modifies or rescinds an action. It directs inquiries concerning listed contractors to the agency or other authority that took the action (FAR 9.404). The record itself names that agency and its point of contact. GSA operates the system and gives agencies technical assistance. It is not the body that decides an exclusion.

Inside the agency, the decision belongs to the agency head or a person the agency head designates, for debarment and for suspension alike (2 CFR 180.930, 2 CFR 180.1010). It is that person's responsibility to determine whether debarment is in the Government's interest. The existence of a cause for debarment does not necessarily require a debarment. The seriousness of the acts or omissions, and any remedial measures, mitigating factors or aggravating factors, should be considered. The rule lists factors. They include whether the contractor had effective standards of conduct in place, brought the matter to the agency's attention, and cooperated with the investigation. They also include whether it made restitution, disciplined the people responsible and took remedial measures. If a cause exists, the contractor carries the burden of demonstrating its present responsibility (FAR 9.406-1). A suspension is imposed on the basis of adequate evidence, pending the completion of an investigation or legal proceedings. It is used when immediate action is necessary to protect the Government's interest. An indictment constitutes adequate evidence (FAR 9.407-1).

A person facing a proposed debarment or a suspension may contest it under the rule's procedures (2 CFR 180.815 for a proposed debarment, 2 CFR 180.720 for a suspension). The rule sets the time allowed, which this guide does not repeat. Where more than one agency has an interest, the Interagency Suspension and Debarment Committee resolves which agency leads (FAR 9.402). Whether a record concerns your business, whether a cause exists and what to do about a notice from an agency are questions for an attorney or a free counselor. They are not questions for this guide. The card just below this guide says where to ask.

While a record is active, the business cannot get new federal contracts, with one narrow exception. Contractors under a debarment, a suspension, a proposed debarment or a voluntary exclusion are excluded from receiving contracts. Agencies do not solicit offers from, award contracts to or consent to subcontracts with them, unless the agency head determines there is a compelling reason. They are also excluded from conducting business with the Government as agents or representatives of other contractors. Some contractors have an active record because a statute or another regulation declared them ineligible. They are excluded under the conditions, and for the period, that statute or regulation sets. The contracting officer reviews the exclusion records in SAM after the opening of bids or receipt of proposals, and again immediately prior to award. An offer from a listed contractor is not evaluated for award during the period of ineligibility. The exception is where the agency head determines in writing that there is a compelling reason (FAR 9.405).

An existing contract is treated differently from a new one. Agencies may continue contracts or subcontracts in existence at the time of the action, unless the agency head directs otherwise. But without a written determination of compelling reasons by the agency head, three things stop. Ordering activities do not place orders beyond the minimum the contract commits them to under indefinite quantity contracts. They do not place orders under Federal Supply Schedule contracts, blanket purchase agreements or basic ordering agreements. And they do not add new work, exercise options or otherwise extend current contracts or orders (FAR 9.405-1). On the assistance side, an excluded person may not be a participant in a covered transaction, nor act as a principal of a participant (2 CFR 180.130). Covered transactions are grants, cooperative agreements, loans, loan guarantees, subsidies and the like (2 CFR 180.970). A participant may continue a transaction that existed when the exclusion was entered, but may not renew or extend it without the agency's exception (2 CFR 180.310).

Other businesses read the list too, before they do business with you. Before a participant enters a covered transaction with a person at the next lower tier, it verifies that the person is not excluded or disqualified. It can do that by checking SAM.gov Exclusions, by collecting a certification from that person or by adding a clause to the transaction (2 CFR 180.300). A participant also makes sure its principals are not excluded (2 CFR 180.320). The rule lists what the agency may do to a participant that knowingly does business with an excluded person (2 CFR 180.325). Every record carries a termination date (FAR 9.404). SAM.gov's page says the date reads Indefinite while proceedings are pending and sets the period once they are completed. The period of a debarment is based on the seriousness of its causes. It generally should not exceed three years, and may be longer if circumstances warrant (2 CFR 180.865).

Firmenza's free health check reads the public tier of a registration by legal name or Unique Entity ID. When that public record carries SAM.gov's exclusion status flag, the health report draws a red finding headed "An exclusion record is listed". It carries the words "SAM.gov lists an exclusion record for this entity. Exclusions can block federal awards." and the line "Source: SAM.gov's exclusion records". It says nothing about who, why or for how long. The report's status pill can read Active and still be red because of this finding. What the health report checks explains the colors. Whether a record concerns your own business or somebody with a similar name is a question the report does not answer.

If you watch a registration, about once a week Firmenza also reads SAM.gov's public list of active exclusion records under its Unique Entity ID. Your dashboard shows what that list showed and when. It reads "SAM.gov's exclusions list showed no active exclusion record under this UEI on" a date, or it shows the count of active records with each one's agency, type, program and dates in SAM.gov's own words. Beside that is the line that questions about an exclusion are for a free counselor or an attorney. An email tells you when a first read lists a record or when the list changes. An unchanged empty list is not news. A read by Unique Entity ID finds records entered under that identifier, and not an individual's record without one. So an empty answer means only that nothing was listed under the identifier that day. Watch list and reminders describes the watch, and Checking your SAM.gov status the public record itself.

It cannot say whether a record concerns your business or a party with a similar name. It cannot say whether a cause for an exclusion exists, or how an agency will decide a matter. It cannot say what to answer where SAM.gov's registration asks about exclusions and proceedings. Those answers are yours, made inside the registration after a notice, as Certifications at renewal explains. The agency named on a record answers questions about it, and a free counselor or an attorney can look at your facts; the card just below this guide lists them. A registration that is Active and an exclusions list that is empty are two different facts, read at two different times. Not found or opted out of public display says what an empty public lookup means.