(a) (i) The Debarring Official will be the hearing officer and responsible for notifying a contractor of any suspected violation of the Gratuities clause. The notification must describe the suspected violation and provide a copy of the record that forms the basis for the notification by the Debarring Official. If there is a reason to withhold any portion of the record, the contractor must be informed of what is withheld and the reasons for such withholding. The contractor must have 30 working days from receipt of notice to submit written matters in opposition or request an in-person hearing on the matter.
(ii) The contractor must be informed that it may oppose the charges set forth in the notice letter. The contractor may oppose the charges individually or through counsel. The contractor may submit documentary evidence, present witnesses at its own expense, and question any person the agency presents on the matter.
(iii) If the contractor does not request an in-person hearing, the Debarring Official must make findings, conclusions, and recommendations on the basis of the written record. If a contractor desires to present matters in person or through counsel, any written material should be delivered at least five working days in advance of the hearing.
(iv) In-person hearings will be informal and non-adversarial in nature. The Debarring Official and/or other agency representatives may ask questions of the contractor or its representative making the presentation.
(v) The Government’s representative and the contractor or its representative will have an opportunity to present evidence relevant to the facts at issue.
(vi) Witnesses may testify and shall be sworn. Witnesses shall be reminded of the official nature of the proceeding and that they are subject to criminal prosecution for any falsified testimony. Witnesses are subject to cross-examination.
(vii) Neither the Federal Rules of Evidence nor the Federal Rules of Civil Procedure govern the conduct of the in-person hearing. Hearsay evidence may be presented and shall be given appropriate weight.
(viii) A verbatim transcript of the hearing must be made and will become part of the administrative record. The contractor will be provided a copy of the transcript. The contractor will have seven working days from receipt of the transcript to provide final comments to the Debarring Official.
(ix) The Debarring Official’s findings, conclusions, and recommendations must be based on the preponderance of the evidence found in the administrative record. The Debarring Official must make all findings and conclusions relevant to whether a violation of the Gratuities clause occurred, whether any contractor’s right to proceed should be terminated, whether an assessment of damages is appropriate, and, if so, what the amount of such an assessment should be. The Debarring Official must submit, for final decision, the administrative record with findings, conclusions and recommendations as to the final disposition of the case to the deciding official, the ASA(AL&T) or designee. The decision of the ASA(AL&T) or designee must be based on the preponderance of the evidence found in the administrative record. The decision must be promptly provided to the contracting officer for appropriate action authorized under the Gratuities clause.
(x) The Judge Advocate General (TJAG) must provide administrative support to the Debarring Official. The TJAG Counsel must act as the Government’s representative in any proceeding pursuant to this subpart of the AFARS.
