2 CFR Ch. XXXIV (1-1-26 Edition) — Part 3485 — Nonprocurement Debarment and Suspension
Summary
This page reproduces part of Title 2 of the Code of Federal Regulations, Chapter XXXIV (1–1–26 Edition), the Department of Education's chapter. It opens with closing sections of Part 3474, including § 3474.15 on faith-based organizations in Department grants, then sets out Part 3485, Nonprocurement Debarment and Suspension. Under § 3485.12, the Department adopts subparts A through I of the OMB guidance in part 180, and Part 3485 lists only the sections that supplement that guidance. Those sections cover covered transactions, the responsibilities of participants, and when a suspension or debarment affects title IV, HEA transactions, including sections 3485.611, 3485.711 and 3485.811. The source note cites 77 FR 18673, Mar. 28, 2012.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Full text
§ 3474.15 2 CFR Ch. XXXIV (1–1–26 Edition)
award or contracts must include lan- more program requirements, unless the
guage substantially similar to that in organization has made clear that the
appendices A and B, respectively, to 34 accommodation is necessary to its par-
CFR part 75. ticipation and the Department has de-
(3) No grant document, agreement, termined that it would deny the ac-
covenant, memorandum of under- commodation.
standing, policy, or regulation that is (c)(1) The provisions of 34 CFR 75.532
used by a grantee or subgrantee in ad- and 76.532 that apply to a faith-based
ministering Federal financial services organization that is a grantee or sub-
from the Department may require grantee also apply to a faith-based or-
faith-based organizations to provide as- ganization that contracts with a grant-
surances or notices if they are not re- ee or subgrantee, including a State.
quired of non-faith-based organiza- (2) The requirements referenced
tions. Any restrictions on the use of under paragraph (c)(1) of this section
grant funds must apply equally to do not apply to a faith-based organiza-
faith-based and non-faith-based organi- tion that provides goods or services to
zations. All organizations that partici- a beneficiary under a program sup-
pate in Department programs or serv- ported only by indirect Federal finan-
ices, including organizations with reli- cial assistance, as defined in 34 CFR
gious character, motives, or affiliation, 75.52(c)(3) and 76.52(c)(3).
must carry out eligible activities in ac-
(d)(1) A private organization that
cordance with all program require-
provides direct Federal services under
ments, including those prohibiting the
a program of the Department and en-
use of direct Federal financial assist-
gages in explicitly religious activities,
ance to engage in explicitly religious
such as worship, religious instruction,
activities, subject to any accommoda-
or proselytization, must offer those ac-
tions that are granted to organizations
tivities separately in time or location
on a case-by-case basis in accordance
from any programs or services funded
with the Constitution and laws of the
by the Department through a contract
United States, including Federal civil
with a grantee or subgrantee, including
rights laws.
(4) No grant document, agreement, a State. Attendance or participation in
covenant, memorandum of under- any such explicitly religious activities
standing, policy, or regulation that is by beneficiaries of the programs and
used by a grantee or subgrantee may services supported by the contract
disqualify faith-based organizations must be voluntary.
from participating in Department- (2) The limitations on explicitly reli-
funded programs or services on the gious activities under paragraph (d)(1)
basis of the organization’s religious of this section do not apply to a faith-
character, motives, or affiliation, or based organization that provides serv-
lack thereof, or on the basis of conduct ices to a beneficiary under a program
that would not be considered grounds supported only by indirect Federal fi-
to disqualify a similarly situated sec- nancial assistance, as defined in 34 CFR
ular organization. 75.52(c)(3) and 76.52(c)(3).
(5) Nothing in this section may be (e)(1) A faith-based organization that
construed to preclude the Department contracts with a grantee or subgrantee,
from making an accommodation with including a State, will retain its inde-
respect to one or more program re- pendence, autonomy, right of expres-
quirements on a case-by-case basis in sion, religious character, and authority
accordance with the Constitution and over its governance. A faith-based or-
laws of the United States, including ganization that receives Federal finan-
Federal civil rights laws. cial assistance from the Department
(6) Neither a State nor the Depart- does not lose the protections of law.
ment may disqualify an organization (2) A faith-based organization that
from participating in any Department contracts with a grantee or subgrantee,
program for which it is otherwise eligi- including a State, may, among other
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ble on the basis of the organization’s things—
indication that it may request an ac- (i) Retain religious terms in its
commodation with respect to one or name;
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Department of Education § 3474.20
(ii) Continue to carry out its mission, set out in paragraph (b)(1) of this sec-
including the definition, development, tion in any grant deliverable that is
practice, and expression of its religious created wholly or in part with Depart-
beliefs; ment competitive grant funds, and that
(iii) Use its facilities to provide serv- constitutes a new copyrightable work;
ices without concealing, removing, or provided, however, that when the deliv-
altering religious art, icons, scriptures, erable consists of modifications to pre-
or other symbols from these facilities; existing works, the license shall extend
(iv) Select its board members on the only to those modifications that can be
basis of their acceptance of or adher- separately identified and only to the
ence to the religious tenets of the orga- extent that open licensing is permitted
nization; and under the terms of any licenses or
(v) Include religious references in its other legal restrictions on the use of
mission statement and other char- pre-existing works.
tering or governing documents. (b)(1) With respect to copyrightable
(f) A private organization that con- work identified in paragraph (a) of this
tracts with a grantee or subgrantee, in- section, the grantee or subgrantee
cluding a State, may not discriminate must grant to the public a worldwide,
against a beneficiary or prospective non-exclusive, royalty-free, perpetual,
beneficiary in the provision of program and irrevocable license to—
goods or services, or in outreach activi- (i) Access, reproduce, publicly per-
ties related to such goods or services, form, publicly display, and distribute
on the basis of religion or religious be- the copyrightable work;
lief, a refusal to hold a religious belief,
(ii) Prepare derivative works and re-
or a refusal to attend or participate in
produce, publicly perform, publicly dis-
a religious practice. However, an orga-
play and distribute those derivative
nization that participates in a program
works; and
funded by indirect Federal financial as-
(iii) Otherwise use the copyrightable
sistance need not modify its program
work, provided that in all such in-
activities to accommodate a bene-
stances attribution is given to the
ficiary who chooses to expend the indi-
copyright holder.
rect aid on the organization’s program.
(g) A religious organization’s exemp- (2) Grantees and subgrantees may se-
tion from the Federal prohibition on lect any open licenses that comply
employment discrimination on the with the requirements of this section,
basis of religion, in section 702(a) of the including, at the grantee’s or sub-
Civil Rights Act of 1964, 42 U.S.C. 2000e– grantee’s discretion, a license that lim-
1(a), is not forfeited when the organiza- its use to noncommercial purposes. The
tion contracts with a grantee or sub- open license also must contain—
grantee. (i) A symbol or device that readily
(h) No grantee or subgrantee receiv- communicates to users the permissions
ing funds under any Department pro- granted concerning the use of the copy-
gram or service shall construe these rightable work;
provisions in such a way as to advan- (ii) Machine-readable code for digital
tage or disadvantage faith-based orga- resources;
nizations affiliated with historic or (iii) Readily accessed legal terms;
well-established religions or sects in and
comparison with other religions or (iv) The statement of attribution and
sects. disclaimer specified in 34 CFR 75.620(b).
[85 FR 82125, Dec. 17, 2020, as amended at 89 (c) A grantee or subgrantee that is
FR 15701, Mar. 4, 2024] awarded competitive grant funds must
have a plan to disseminate the openly
§ 3474.20 Open licensing requirement licensed copyrightable works identified
for competitive grant programs. in paragraph (a) of this section.
For competitive grants awarded in (d)(1) The requirements of paragraphs
competitions announced after Feb- (a), (b), and (c) of this section do not
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ruary 21, 2017: apply to—
(a) A grantee or subgrantee must (i) Grants that provide funding for
openly license to the public the rights general operating expenses;
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§ 3474.21 2 CFR Ch. XXXIV (1–1–26 Edition)
(ii) Grants that provide support to in- subgrantee, unless the grantee or sub-
dividuals (e.g., scholarships, fellow- grantee has acquired the right to pro-
ships); vide such a license in that work.
(iii) Grant deliverables that are (f) Definition. For purposes of this
jointly funded by the Department and section,
another Federal agency if the other (1) A grant deliverable is a final
Federal agency does not require the version of a work, including any final
open licensing of its grant deliverables version of program support materials
for the relevant grant program; necessary to the use of the deliverable,
(iv) Copyrightable works created by
developed to carry out the purpose of
the grantee or subgrantee that are not
the grant, as specified in the grant an-
created with Department grant funds;
(v) Peer-reviewed scholarly publica- nouncement.
tions that arise from any scientific re- (2) A derivative work means a deriva-
search funded, either fully or partially, tive work as defined in the Copyright
from grants awarded by the Depart- Act, 17 U.S.C. 101.
ment; [82 FR 7397, Jan. 19, 2017]
(vi) Grantees or subgrantees under
the Ready To Learn Television Pro- § 3474.21 Severability.
gram, as defined in the Elementary and
Secondary Education Act of 1965, as If any provision of this part or its ap-
amended, Title II, Subpart 3, Sec. 2431, plication to any person, act, or prac-
20 U.S.C. 6775; tice is held invalid, the remainder of
(vii) A grantee or subgrantee that the part or the application of its provi-
has received an exception from the sions to any person, act, or practice
Secretary under 2 CFR 3474.5 and 2 CFR shall not be affected thereby.
200.102 (e.g., where the Secretary has [85 FR 82126, Dec. 17, 2020]
determined that the grantee’s dissemi-
nation plan would likely achieve mean-
ingful dissemination equivalent to or PART 3485—NONPROCUREMENT
greater than the dissemination likely DEBARMENT AND SUSPENSION
to be achieved through compliance
with paragraph (a) or (b) of this sec- Sec.
tion, or compliance with paragraph (a) 3485.12 What does this part do?
or (b) of this section would impede the 3485.22 Does this part apply to me?
grantee’s ability to form the required 3485.32 What policies and procedures must I
partnerships necessary to carry out the follow?
purpose of the grant); and
(viii) Grantees or subgrantees for Subpart A—General
which compliance with these require- 3485.137 May the Department grant an ex-
ments would conflict with, or materi- ception to let an excluded person partici-
ally undermine the ability to protect pate in a covered transaction?
or enforce, other intellectual property
rights or obligations of the grantee or Subpart B—Covered Transactions
subgrantee, in existence or under de-
velopment, including those provided 3485.220 Are any procurement contracts in-
cluded as covered transactions?
under 15 U.S.C. 1051, et seq., 18 U.S.C.
1831–1839, and 35 U.S.C. 200, et seq. Subpart C—Responsibilities of Participants
(2) The requirements of paragraphs Regarding Transactions
(a), (b), and (c) of this section do not
alter any applicable rights in the grant 3485.310 What must I do if a Federal agency
deliverable available under 17 U.S.C. excludes a person with whom I am al-
106A, 203 or 1202, 15 U.S.C. 1051, et seq., ready doing business in a covered trans-
or State law. action?
(e) The license set out in paragraph 3485.315 May I use the services of an ex-
(b)(1) of this section shall not extend to cluded person as a principal under a cov-
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any copyrightable work incorporated ered transaction?
in the grant deliverable that is owned 3485.330 What methods must I use to pass
by a party other than the grantee or requirements down to participants at
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Department of Education § 3485.12
lower tiers with whom I intend to do the Department. This part satisfies the
business? requirements in section 3 of Executive
Order 12549, ‘‘Debarment and Suspen-
Subpart D—Responsibilities of the Depart-
sion’’ (3 CFR part 1986 Comp., p. 189),
ment’s Officials Regarding Trans-
Executive Order 12689, ‘‘Debarment and
actions
Suspension’’ (3 CFR part 1989 Comp., p.
3485.415 What must I do if a Federal agency 235) and 31 U.S.C. 6101 note (Section
excludes the participant or a principal 2455, Pub. L. 103–355, 108 Stat. 3327).
after I enter into a covered transaction? (2) The table of contents for this part
3485.437 What method do I use to commu-
nicate to a participant the requirements
contains only those sections in part
described in § 180.435 of this title? 3485 that include supplements to the
guidance in part 180 and new sections
Subpart E [Reserved] needed to implement the guidance for
the Department’s programs. In those
Subpart F—General Principles Relating to sections of the OMB guidance that are
Suspension and Debarment Actions supplemented, the section in part 3485
3485.611 What procedures do we use for a includes both the text of the OMB guid-
suspension or debarment action involv- ance that is not affected by the change
ing title IV, HEA transactions? and any additional paragraphs that
3485.612 When does an exclusion by another need to be added to the OMB guidance.
agency affect the ability of the excluded For example, § 180.220 of this title con-
person to participate in a title IV, HEA tains only paragraphs (a) and (b). The
transaction?
text of § 3485.220, which supplements
Subpart G—Suspension § 180.220 to extend lower-tier trans-
actions to certain transactions below
3485.711 When does a suspension affect title the primary tier, includes both the text
IV, HEA transactions? of paragraph (a) and (b) of § 180.220 and
Subpart H—Debarment the text of added paragraph (c).
(3) In those sections in part 180 that
3485.811 When does a debarment affect title do not have paragraph designations
IV, HEA transactions? and that the Department supplements,
the section in this part implementing
Subpart I—Definitions
the OMB guidance designates the un-
3485.937 ED Deciding Official. designated paragraph from part 180 as
3485.952 HEA. paragraph (a) and the first supple-
3485.995 Principal. mental paragraph as paragraph (b). For
3485.1016 Title IV, HEA participant. example, 2 CFR 180.330 includes an un-
3485.1017 Title IV, HEA program.
designated lead in paragraph and two
3485.1018 Title IV, HEA transaction.
subparagraphs designated (a) and (b).
Subpart J [Reserved] In § 3485.330, the undesignated para-
graph in 2 CFR 180.330 is designated
APPENDIX A TO PART 3485—COVERED TRANS- paragraph (a) and the two subpara-
ACTIONS graphs are designated paragraphs (1)
AUTHORITY: E.O. 12549 (3 CFR 1986 Comp., p. and (2). The added paragraphs are des-
189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec. ignated paragraph (b) and (c).
2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C. (b) The authority for all the provi-
6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and sions in 2 CFR part 180 as adopted in
3474, unless otherwise noted.
this part is listed as follows.
SOURCE: 77 FR 18673, Mar. 28, 2012, unless AUTHORITY: E.O. 12549 (3 CFR 1986 Comp., p.
otherwise noted. 189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec.
2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C.
§ 3485.12 What does this part do? 6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and
(a)(1) The Department of Education 3474.
(the ‘‘Department’’ or ‘‘ED’’) adopts (Authority: E.O. 12549 (3 CFR 1986 Comp., p.
subparts A through I of the Office of 189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec.
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Management and Budget guidance in 2 2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C.
CFR part 180. Thus, this part gives reg- 6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and
ulatory effect to the OMB guidance and 3474, unless otherwise noted.)
supplements the guidance as needed for
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§ 3485.22 2 CFR Ch. XXXIV (1–1–26 Edition)
§ 3485.22 Does this part apply to me? viating from the Governmentwide pol-
icy in Executive Order 12549.
This part applies to you if you are—
(a) A participant or principal in a (Authority: E.O. 12549 (3 CFR 1986 Comp., p.
‘‘covered transaction’’ (see subpart B of 189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec.
2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C.
this part and the definition of ‘‘non- 6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and
procurement transaction’’ in § 180.970 of 3474)
this title).
(b) A respondent in a suspension or Subpart B—Covered Transactions
debarment action of the Department.
(c) An ED deciding official; or § 3485.220 Are any procurement con-
(d) An ED officer authorized to enter tracts included as covered trans-
into any type of nonprocurement actions?
transaction that is a covered trans- (a) Covered transactions under this
action. part—
(1) Do not include any procurement
(Authority: E.O. 12549 (3 CFR 1986 Comp., p. contracts awarded directly by a Fed-
189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec. eral agency; but
2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C.
(2) Do include some procurement con-
6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and
tracts awarded by non-Federal partici-
3474)
pants in nonprocurement covered
§ 3485.32 What policies and procedures transactions.
must I follow? (b) Specifically, a contract for goods
or services is a covered transaction if
The Department’s policies and proce- any of the following applies:
dures that you must follow are the (1) The contract is awarded by a par-
policies and procedures specified in ticipant in a nonprocurement trans-
this part and in Subparts A through I action that is covered under § 180.210 of
of 2 CFR part 180. The contracts that this title, and the amount of the con-
are covered transactions, for example, tract is expected to equal or exceed
are specified in § 3485.220. Section $25,000.
180.205 of this title does not require (2) The contract requires the consent
supplementation, so it is not included of an official of a Federal agency. In
in the table of contents for this part that case, the contract, regardless of
and is not separately stated in this the amount, always is a covered trans-
part. action, and it does not matter who
awarded it. For example, it could be a
(Authority: E.O. 12549 (3 CFR 1986 Comp., p. subcontract awarded by a contractor at
189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec. a tier below a nonprocurement trans-
2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C. action, as shown in the Appendix to
6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and
Part 3485—Covered Transactions.
3474)
(3) The contract is for Federally-re-
quired audit services.
Subpart A—General (4) The contract is to perform serv-
ices as a third party servicer in connec-
§ 3485.137 May the Department grant tion with a title IV, HEA program.
an exception to let an excluded per- (c) In addition to the contracts cov-
son participate in a covered trans-
ered under 2 CFR 180.220(b) of the OMB
action?
guidance, this part applies to any con-
(a) Yes, the Secretary delegates to tract, regardless of tier, that is award-
the ED Deciding Official the authority ed by a contractor, subcontractor, sup-
under this section to grant an excep- plier, consultant, or its agent or rep-
tion permitting an excluded person to resentative in any transaction, if the
participate in a particular covered contract is to be funded or provided by
transaction. ED under a covered nonprocurement
(b) If the ED Deciding Official grants transaction and the amount of the con-
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an exception, the exception must be in tract is expected to equal or exceed
writing and state the reason(s) for de- $25,000. This extends the coverage of
the ED nonprocurement suspension and
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Department of Education § 3485.330
debarment requirements to all lower transaction if you were using the serv-
tiers of subcontracts under covered ices of that person in the transaction
nonprocurement transactions, as per- before the person was excluded. How-
mitted under the OMB guidance at 2 ever, you are not required to continue
CFR 180.220(c) (see optional lower tier using that person’s services as a prin-
coverage in the figure in Appendix A to cipal. You should make a decision
Part 3485—Covered Transactions). about whether to discontinue that per-
(Authority: E.O. 12549 (3 CFR 1986 Comp., p. son’s services only after a thorough re-
189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec. view to ensure that the action is proper
2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C. and appropriate.
6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and (b) You may not begin to use the
3474) services of an excluded person as a
principal under a covered transaction
Subpart C—Responsibilities of Par- unless another Federal agency respon-
ticipants Regarding Trans- sible for the transaction grants an ex-
actions ception under § 180.135 of this title or, if
ED took the action, an ED deciding of-
§ 3485.310 What must I do if a Federal ficial grants an exception under
agency excludes a person with § 3485.137.
whom I am already doing business (c) If you are a title IV, HEA partici-
in a covered transaction?
pant—
(a) You as a participant may con- (1) You may not renew or extend the
tinue covered transactions with an ex- term of any contract or agreement for
cluded person if the transactions were the services of an excluded person as a
in existence when the agency excluded principal with respect to a title IV,
the person. However, you are not re- HEA transaction; and
quired to continue the transactions, (2) You may not continue to use the
and you may consider termination. services of that excluded person as a
You should make a decision about
principal under this kind of an agree-
whether to terminate and the type of
ment or arrangement more than 90
termination action, if any, only after a
days after you learn of the exclusion or
thorough review to ensure that the ac-
after the close of the Federal fiscal
tion is proper and appropriate.
year in which the exclusion takes ef-
(b) You may not renew or extend cov-
fect, whichever is later.
ered transactions (other than no-cost
time extensions) with any excluded (Authority: E.O. 12549 (3 CFR 1986 Comp., p.
person, unless another Federal agency 189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec.
responsible for the transaction grants 2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C.
an exception under § 180.135 of this title 6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and
or ED grants an exception under 3474)
§ 3485.137.
§ 3485.330 What methods must I use to
(c) If you are a title IV, HEA partici- pass requirements down to partici-
pant, you may not continue a title IV, pants at lower tiers with whom I in-
HEA transaction with an excluded per- tend to do business?
son after the effective date of the ex-
clusion unless permitted by 34 CFR (a) Before entering into a covered
668.26, 682.702, or 668.94, as applicable. transaction with a participant at the
next lower tier, you must require that
(Authority: E.O. 12549 (3 CFR 1986 Comp., p. participant to—
189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec.
(1) Comply with this subpart as a
2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C.
6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and condition of participation in the trans-
3474) action. You must do so using the meth-
od specified in paragraph (b) of this
§ 3485.315 May I use the services of an section; and
excluded person as a principal (2) Pass the requirement to comply
under a covered transaction? with this subpart to each person with
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(a) You as a participant may con- whom the participant enters into a
tinue to use the services of an excluded covered transaction at the next lower
person as a principal under a covered tier.
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§ 3485.415 2 CFR Ch. XXXIV (1–1–26 Edition)
(b) To communicate the require- ment or arrangement more than 90
ments in this part to a participant, you days after you learn of the exclusion or
must include a term or condition in the after the close of the Federal fiscal
transaction that requires the partici- year in which the exclusion takes ef-
pant’s compliance with part 180, sub- fect, whichever is later.
part C, of this title, as adopted at (Authority: E.O. 12549 (3 CFR 1986 Comp., p.
§ 3485.12, and requires the participant to 189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec.
include a similar term or condition in 2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C.
lower-tier covered transactions. 6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and
(c) The failure of a participant to in- 3474)
clude a requirement to comply with
Subpart C of 2 CFR part 180 in the § 3485.437 What method do I use to
agreement with a lower tier partici- communicate to a participant the
requirements described in § 180.435
pant does not affect the lower tier par- of this title?
ticipant’s responsibilities under this
part. To communicate the requirements in
this part to a participant, you must in-
(Authority: E.O. 12549 (3 CFR 1986 Comp., p. clude a term or condition in the trans-
189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec.
action that requires the participant’s
2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C.
6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and compliance with part 180, subpart C, of
3474) this title, as adopted at § 3485.12 and re-
quires the participant to include a
Subpart D—Responsibilities of the similar term or condition in lower-tier
covered transactions.
Department’s Officials Re-
garding Transactions (Authority: E.O. 12549 (3 CFR 1986 Comp., p.
189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec.
§ 3485.415 What must I do if a Federal 2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C.
agency excludes the participant or 6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and
a principal after I enter into a cov- 3474)
ered transaction?
(a) You as a Federal agency official Subpart E [Reserved]
may continue covered transactions
with an excluded person, or under Subpart F—General Principles Re-
which an excluded person is a prin- lating to Suspension and De-
cipal, if the transactions were in exist- barment Actions
ence when the person was excluded.
You are not required to continue the § 3485.611 What procedures do we use
transactions, however, and you may for a suspension or debarment ac-
consider termination. You should make tion involving a title IV, HEA trans-
a decision about whether to terminate action?
and the type of termination action, if (a) If we suspend a title IV, HEA par-
any, only after a thorough review to ticipant under Executive Order 12549,
ensure that the action is proper. we use the following procedures to en-
(b) You may not renew or extend cov- sure that the suspension prevents par-
ered transactions (other than no-cost ticipation in title IV, HEA trans-
time extensions) with any excluded actions:
person, or under which an excluded per- (1) The notification procedures in
son is a principal, unless you obtain an § 180.715 of this title.
exception under § 3485.137. (2) Instead of the procedures in
(c) Title IV, HEA transactions. If you §§ 180.720 through 180.760 of this title,
are a title IV, HEA participant— the procedures in 34 CFR part 668, sub-
(1) You may not renew or extend the part G, or 34 CFR part 682, subpart D or
term of any contract or agreement for G, as applicable.
the services of an excluded person as a (3) In addition to the findings and
principal with respect to a title IV, conclusions required by 34 CFR part
HEA transaction; and 668, subpart G, or 34 CFR part 682, sub-
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(2) You may not continue to use the part D or G, the suspending official,
services of that excluded person as a and, on appeal, the Secretary deter-
principal under this kind of an agree- mines whether there is sufficient cause
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Department of Education § 3485.612
for suspension as explained in § 180.700 riod begins on the 35th day after that
of this title. agency issues the notice of suspension.
(b) If we debar a title IV, HEA partic- (iii) If the excluded party objects to
ipant under E.O. 12549, we use the fol- the suspension, the 60-day period be-
lowing procedures to ensure that the gins on the date of the decision of the
debarment also precludes participation suspending official.
in title IV, HEA transactions: (3) The suspension of title IV, HEA
(1) The notification procedures in eligibility does not end on the 60th day
§§ 180.805 and 180.870 of this title. if—
(2) Instead of the procedures in (i) The excluded party agrees to an
§§ 180.810 through 180.885 of this title, extension; or
the procedures in 34 CFR part 668, sub- (ii) Before the 60th day we begin a
part G, or 34 CFR part 682, subpart D or limitation or termination proceeding
G, as applicable. against the excluded party under 34
(3) On appeal from a decision debar- CFR part 668, subpart G, or part 682,
ring a title IV, HEA participant, we subpart D or G.
issue a final decision after we receive (c)(1) If a title IV, HEA participant is
any written materials from the parties. debarred or suspended by another Fed-
(4) In addition to the findings and eral agency—
conclusions required by 34 CFR part (i) We notify the participant whether
668, subpart G, or 34 CFR part 682, sub- the debarment or suspension prohibits
part D or G, the debarring official, and, participation in title IV, HEA trans-
on appeal, the Secretary determines actions; and
whether there is sufficient cause for de- (ii) If participation is prohibited, we
barment as explained in § 180.800 of this state the effective date and duration of
title. the prohibition.
(2) If a debarment or suspension by
(Authority: E.O. 12549 (3 CFR 1986 Comp., p.
another agency prohibits participation
189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec.
2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C. in title IV, HEA transactions, that pro-
6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and hibition takes effect 20 days after we
3474) mail notice of our action.
(3) If the Department or another Fed-
§ 3485.612 When does an exclusion by eral agency suspends a title IV, HEA
another agency affect the ability of participant, we determine whether
the excluded person to participate grounds exist for an emergency action
in a title IV, HEA transaction? against the participant under 34 CFR
(a) If a title IV, HEA participant is part 668, subpart G, or part 682, subpart
debarred by another agency under E.O. D or G, as applicable.
12549, using procedures described in (4) We use the procedures in § 3485.611
paragraph (d) of this section, that to exclude a title IV, HEA participant
party is not eligible to enter into title excluded by another Federal agency
IV, HEA transactions for the duration using procedures that did not meet the
of the debarment. standards in paragraph (d) of this sec-
(b)(1) If a title IV, HEA participant is tion.
suspended by another agency under (d) If a title IV, HEA participant is
E.O. 12549 or under a proposed debar- excluded by another agency, we debar,
ment under the Federal Acquisition terminate, or suspend the participant—
Regulation (FAR) (48 CFR part 9, sub- as provided under this part, 34 CFR
part 9.4), using procedures described in part 668, or 34 CFR part 682, as applica-
paragraph (d) of this section, that ble—if that agency followed procedures
party is not eligible to enter into title that gave the excluded party—
IV, HEA transactions for the duration (1) Notice of the proposed action;
of the suspension. (2) An opportunity to submit and
(2)(i) The suspension of title IV, HEA have considered evidence and argument
eligibility as a result of suspension by to oppose the proposed action;
another agency lasts for at least 60 (3) An opportunity to present its ob-
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days. jection at a hearing—
(ii) If the excluded party does not ob- (i) At which the agency has the bur-
ject to the suspension, the 60-day pe- den of persuasion by a preponderance
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§ 3485.711 2 CFR Ch. XXXIV (1–1–26 Edition)
of the evidence that there is cause for Subpart H—Debarment
the exclusion; and
(ii) Conducted by an impartial person § 3485.811 When does a debarment af-
who does not also exercise prosecu- fect title IV, HEA transactions?
torial or investigative responsibilities (a) A debarment under § 3485.611(b)
with respect to the exclusion action; takes effect 30 days after those proce-
(4) An opportunity to present witness dures are complete.
testimony, unless the hearing official (b) If the respondent appeals the de-
finds that there is no genuine dispute barment to the Secretary before the
about a material fact; expiration of the 30 days under para-
graph (a) of this section, the debarment
(5) An opportunity to have agency
takes effect when the respondent re-
witnesses with personal knowledge of ceives the Secretary’s decision.
material facts in genuine dispute tes-
tify about those facts, if the hearing of- (Authority: E.O. 12549 (3 CFR 1986 Comp., p.
ficial determines their testimony to be 189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec.
2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C.
needed, in light of other available evi- 6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and
dence and witnesses; and 3474)
(6) A written decision stating find-
ings of fact and conclusions of law on Subpart I—Definitions
which the decision is rendered.
§ 3485.937 ED Deciding Official.
(Authority: E.O. 12549 (3 CFR 1986 Comp., p.
189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec. The ED Deciding Official is an officer
2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C. of the Department who has delegated
6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and authority under the procedures of the
3474) Department of Education to decide
whether to affirm a suspension or enter
Subpart G—Suspension a debarment.
(Authority: E.O. 12549 (3 CFR 1986 Comp., p.
§ 3485.711 When does a suspension af- 189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec.
fect title IV, HEA transactions? 2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C.
6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and
(a) A suspension under § 3485.611(a) 3474)
takes effect immediately if the Sec-
retary takes an emergency action § 3485.952 HEA.
under 34 CFR part 668, subpart G, or 34 HEA means the Higher Education Act
CFR part 682, subpart D or G, at the of 1965, as amended.
same time the Secretary issues the sus-
(Authority: E.O. 12549 (3 CFR 1986 Comp., p.
pension. 189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec.
(b)(1) Except as provided under para- 2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C.
graph (a) of this section, a suspension 6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and
under § 3485.611(a) takes effect 20 days 3474)
after those procedures are complete.
§ 3485.995 Principal.
(2) If the respondent appeals the sus-
pension to the Secretary before the ex- Principal means—
piration of the 20 days under paragraph (a) An officer, director, owner, part-
(b)(1) of this section, the suspension ner, principal investigator, or other
takes effect when the respondent re- person within a participant with man-
agement or supervisory responsibilities
ceives the Secretary’s decision.
related to a covered transaction; or
(Authority: E.O. 12549 (3 CFR 1986 Comp., p. (b) A consultant or other person,
189); E.O. 12689 (3 CFR 1989 Comp., p. 235); sec. whether or not employed by the partic-
2455, Pub. L. 103–355, 108 Stat. 3327 (31 U.S.C. ipant or paid with Federal funds, who—
6101 note); 20 U.S.C. 1082, 1094, 1221e–3, and (1) Is in a position to handle Federal
3474) funds;
(2) Is in a position to influence or
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control the use of those funds; or
(3) Occupies a technical or profes-
sional position capable of substantially
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