18 March 2009

[Federal Register: March 18, 2009 (Volume 74, Number 51)]
[Proposed Rules]               
[Page 11512-11517]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18mr09-23]                         

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DEPARTMENT OF HOMELAND SECURITY

48 CFR Parts 3009 and 3052

[Docket No. DHS-2009-0017]
RIN 1601-AA55

 
Prohibition on Federal Protective Service Guard Services 
Contracts With Business Concerns Owned, Controlled, or Operated by an 
Individual Convicted of a Felony [HSAR Case 2009-001]

AGENCY: Department of Homeland Security (DHS).

ACTION: Proposed rule with request for comments.

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SUMMARY: DHS is proposing to amend the Homeland Security Acquisition 
Regulation (HSAR) to prohibit DHS from awarding a Federal Protective 
Service (FPS) contract for guard services to a business concern that is 
owned, controlled, or operated by an individual who has been convicted 
of a serious felony. The rule is necessary to implement the provisions 
of Public Law 110-356, the Federal Protective Service Guard Contracting 
Reform Act of 2008.

DATES: Comment date: Interested parties should submit written comments 
to the

[[Page 11513]]

Department of Homeland Security, Office of the Chief Procurement 
Officer, Acquisition Policy and Legislation, on or before April 17, 
2009.

ADDRESSES: Please submit written comments, identified by agency name 
and docket number DHS-2009-0017, by one of the following methods:
    (1) Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    (2) By mail to the Department of Homeland Security, Office of the 
Chief Procurement Officer, Acquisition Policy and Legislation, ATTN: 
Gloria Sochon, 245 Murray Drive, Bldg. 410 (RDS) Washington, DC 20528.

FOR FURTHER INFORMATION CONTACT: Gloria Sochon, Senior Procurement 
Analyst, at (202) 447-3507 for clarification of content. Please cite 
HSAR Case 2008-002.

SUPPLEMENTARY INFORMATION:

I. Request for Comments
II. Background
III. Discussion of Proposed Rule
IV. Regulatory Requirements
    A. Executive Order 12866 Assessment
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act

I. Request for Comments

    Interested persons are invited to participate in this rulemaking by 
submitting written views and arguments on all aspects of this rule. 
Comments should be organized by HSAR Part, and address the specific 
section that is being commented on. All comments received will be 
posted without change to http://www.regulations.gov, including any 
personal information provided. See ADDRESSES above for information on 
how to submit comments. If you submit comments by mail, please submit 
them in an unbound format, no larger than 8\1/2\ by 11 inches, suitable 
for copying and electronic filing. If you would like DHS to acknowledge 
receipt of comments submitted by mail, please enclose a self addressed 
stamped post card or envelope. DHS will consider all comments and 
material received during the comment period.
    Docket: For access to the docket in order to read background 
documents or comments received, go to http://www.regulations.gov.

II. Background

    Public Law 110-356, the Federal Protective Service Guard 
Contracting Reform Act of 2008, prohibits DHS from awarding an FPS 
contract for guard services to any business concern that is owned, 
controlled, or operated by an individual who has been convicted of a 
felony. The proposed rule would implement this prohibition, identify 
which serious felonies may prohibit a contractor from being awarded a 
contract; require contractors to provide information regarding any 
relevant felony convictions when submitting bids or proposals; provide 
guidelines for the contracting officer to assess present 
responsibility, mitigating factors, and the risk associated with the 
previous conviction, and allow the contracting officer to award a 
contract under certain circumstances.
    The rule proposes that felonies which cast doubt on the integrity 
or business ethics of a business concern or are of a nature that is 
inconsistent with the mission of the Federal Protective Service are 
serious felonies which will prohibit a business concern from being 
awarded an FPS contract for guard services. Examples of serious felony 
convictions may include, but are not limited to: Fraud arising out of a 
contract with the federal, state or local government; bribery, graft or 
a conflict of interest; threatened or actual harm to a government 
official, family member or government property; crimes of violence; 
threat to national security; commercial bribery; counterfeiting, 
forgery or trafficking in vehicles the identification numbers of which 
have been altered; obstruction of justice, perjury or subornation of 
perjury, or bribery of a witness; felony for attempt to evade or defeat 
Federal tax or felony for willful failure to collect or pay over 
Federal tax.
    The proposed HSAR clause will require offerors to disclose whether 
they are or are not a business concern owned, controlled or operated by 
an individual convicted of a felony. If an offeror represents that they 
are owned, controlled or operated by an individual convicted of a 
felony they will need to submit a new award request with their bid or 
proposal or a previously approved award request. The award request will 
provide the basis for the request and details regarding the felony 
conviction to include: Name and date of birth of the individual 
convicted of a felony, the age of the conviction, nature and 
circumstances surrounding the conviction, protective measures taken by 
the individual or business concern to reduce or eliminate the risk of 
further misconduct, whether the individual has made full restitution 
for the felony and whether the individual has accepted responsibility 
for past misconduct resulting in the felony conviction.
    The proposed clause also provides that after award of an Indefinite 
Delivery/Indefinite Quantity Contract, Blanket Purchase Agreement, or 
other contractual instrument that may result in the issuance of task 
orders, calls, or exercise of options to extend the term of the 
contract, the contractor must provide notice of a felony conviction of 
any person who owns, controls, or operates the business concern. The 
contracting officer will review the conviction and make a new 
determination of eligibility prior to the issuance of any task order, 
call, or exercise of any option.
    The proposed rule would allow the contracting officer to review the 
basis for the award request and assess the risk associated with the 
felony conviction. Under certain circumstances, the contracting officer 
could award a contract for guard services to a business concern owned, 
controlled or operated by an individual convicted of a felony. Prior to 
such an award, the contracting officer will need to obtain the approval 
of the Head of the Contracting Activity for U.S. Immigration and 
Customs Enforcement.

III. Discussion of Proposed Rule

    The proposed rule would revise HSAR 48 CFR 3009.1 and add a clause 
3052.209-XX to implement Public Law 110-356. It also makes technical 
corrections to HSAR 48 CFR 3009.1.

IV. Regulatory Requirements

A. Executive Order 12866 Assessment

    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. The rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Department of Homeland Security certifies that the proposed 
rule amending HSAR 48 CFR 3009.1 and 3052.209 will not, if promulgated, 
have a significant impact on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et 
seq. The factual basis for certification is presented in the following 
analysis of the economic effects of the proposed rule. Application of 
the rule is limited to offerors or contractors providing guard services 
under the Federal Protective Service contract security guard program. 
Further, for these offerors and contractors, the economic impact of the 
rule is not expected to be substantial. Currently, FPS administers a 
contract inventory consisting of approximately 125 contract vehicles 
for guard services with 46 different guard service vendors. These FPS 
contracts provide 14,000 contract guards to protect 9,000 federal 
facilities. In FY2008, DHS issued

[[Page 11514]]

approximately 47 solicitations for guard services and awarded 55 
contracts. For each solicitation issued, an average of 10 offerors 
responded.
    The 46 vendors that provide guard services to FPS represent less 
than one percent of the industry. In 2005, the Small Business 
Administration, based on Bureau of Census data, estimated that there 
were 4,853 firms in Security Guards and Patrol Services Industry, North 
American Industry Classification System (NAICS) 561612 (Reference 
Federal Register notices of November 10, 2005 (70 FR 68368) and June 
30, 2006 (71 FR 37490)). The Central Contractor Registration database 
(http://www.ccr.gov) currently lists 5,784 active records for NAICS 
561612. Of these, 2,361, or 41 percent are identified as small 
businesses.
    Only those vendors that represent that they are owned, controlled, 
or operated by an individual convicted of a felony will need to submit 
a new award request with their bid or proposal or a previously approved 
award request. After award, a contractor will need to disclose felony 
convictions that occur during the term of the contract. DHS estimates 
that this may affect ten percent of offerors (fewer than 50 per year -
47 solicitations x 10 offerors per solicitation x .1) and ten percent 
of contractors (fewer than five per year--46 guard service vendors x 
.1)). The award request must provide the basis for the request and 
details regarding the felony conviction to include: The age of the 
conviction, nature and circumstances surrounding the conviction, 
protective measures taken by the individual or business concern to 
reduce or eliminate the risk of further misconduct, whether the 
individual has made full restitution for the felony and whether the 
individual has accepted responsibility for past misconduct resulting in 
the felony conviction. Under certain circumstances, the contracting 
officer may still award a contract for guard services to a business 
concern owned, controlled or operated by an individual convicted of a 
felony. Only those felonies that cast doubt on the integrity or 
business ethics of the business concern or are of a nature that are 
inconsistent with the mission of the Federal Protective Service will 
prohibit a business concern from being awarded an FPS contract for 
guard services. Examples of serious felony convictions may include, but 
are not limited to: fraud arising out of a contract with the federal, 
state or local government, bribery, graft or a conflict of interest, 
threatened or actual harm to a government official, family member or 
government property, crimes of violence, threat to national security, 
commercial bribery, counterfeiting, forgery or trafficking in vehicles 
the identification numbers of which have been altered, obstruction of 
justice, perjury or subornation of perjury, or bribery of a witness, 
felony for attempt to evade or defeat Federal tax or felony for willful 
failure to collect or pay over Federal tax.
    Therefore, DHS has not performed an initial regulatory flexibility 
analysis. DHS invites comments from small businesses and other 
interested parties. DHS also will consider comments from small entities 
concerning the affected HSAR subpart in accordance with 5 U.S.C. 610. 
Such comments should be submitted separately and should cite HSAR Case 
2008-0002.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies because 
the rule contains information collection requirements.
    (1) The clause at 3052.209-XX requires each offeror for FPS 
contract guard services to disclose whether it is owned, controlled or 
operated by an individual convicted of a felony. The representation is 
necessary to evaluate the offeror's responsibility related to 
performing the required services in accordance with Public Law 110-356. 
An offeror that is owned, controlled or operated by a felon must also 
submit an award request with supporting documentation. DHS has 
determined that the burden for the responses is within the total 
estimated burden for information requested from prospective contractors 
in response to agency-issued solicitations approved under OMB Control 
No. 1600-0005. Based on FY2008 statistics, DHS has approximately 470 
respondents to solicitations for contract guard services per year (47 
solicitations with an average of 10 offers per solicitation), all of 
whom will make the representation. Of these, DHS estimates that 10 
percent (47 per year) may submit award requests. DHS estimates the 
total burden on offerors to be 211.5 hours. This represents .1 percent 
of the total burden hours under OMB Control No. 1600-0005.
    (2) The clause at 3052.209-XX requires the contractor to report 
felony convictions after award of an Indefinite Delivery/Indefinite 
Quantity Contract, Blanket Purchase Agreement, or other contractual 
instrument that may result in the issuance of task orders, calls, or 
exercise of options to extend the term of the contract. The notice 
applies to a felony conviction of any person who owns, controls, or 
operates the business concern. DHS has determined that the burden for 
the responses is within the total estimated burden for information 
requested from contractors in response to OMB Control No. 1600-003 for 
information requested from contractors as part of post-contract award 
administration by DHS acquisition officials. DHS has 125 contracts for 
FPS guard services. Of these, DHS estimates that 10 percent will also 
submit a notice of felony conviction. DHS estimates the total burden on 
contractors to be 25 hours. This represents less than .001 percent of 
the total burden hours under OMB Control No. 1600-0003.

List of Subjects in 48 CFR Parts 3009 and 3052

    Government procurement.

Richard K. Gunderson,
Acting Chief Procurement Officer, Department of Homeland Security.

0
Accordingly, DHS amends 48 CFR parts 3009 and 3052 as follows:
0
1. The authority citation for 48 CFR parts 3009 and 3052 continues to 
read as follows:

    Authority: 41 U.S.C. 418b (a) and (b).

PART 3009--CONTRACTOR QUALIFICATIONS

0
2. Redesignate section 3009.104-70 as section 3009.170 and redesignate 
sections 3009.104-71 through 3009.104-75 as sections 3009.170-1 through 
3009.170-5, respectively.
0
3. Add sections 3009.171 through 3009.171-9 to subpart 3009.1 to read 
as follows:


3009.171  Prohibition on Federal Protective Service guard services 
contracts with business concerns owned, controlled, or operated by an 
individual convicted of a felony.


3009.171-1  General.

    Except as provided in HSAR 48 CFR 3009.171-6, the Department of 
Homeland Security (DHS) may not enter into a contract for guard 
services under the Federal Protective Service (FPS) guard services 
program with any business concern owned, controlled, or operated by an 
individual convicted of a serious felony.


3009.171-2  Definitions.

    As used in this subpart--
    Business concern means a commercial enterprise and the people who 
constitute it.
    Convicted of a felony means any conviction of a felony in violation 
of state or federal criminal statutes, including the Uniform Code of 
Military Justice, whether entered on a verdict or

[[Page 11515]]

plea, including a plea of nolo contendere, for which a sentence has 
been imposed.
    Felony means an offense punishable by death or imprisonment for a 
term exceeding one year.
    Individual means any person, corporation, partnership, or other 
entity with a legally independent status.


3009.171-3  Determination of eligibility for award of FPS guard service 
contracts.

    (a) Contracting officers shall make a determination of eligibility 
for award of FPS guard service contracts upon identification of the 
apparent successful offeror as a result of a solicitation for offers
    (b) Contractors shall be required to immediately notify the 
contracting officer in writing upon any felony conviction of personnel 
who own, control or operate a business concern as defined in (HSAR) 48 
CFR 3009.171-4 at any time during the duration of an Indefinite 
Delivery/Indefinite Quantity Contract, Blanket Purchase Agreements, or 
other contractual instrument that may result in the issuance of task 
orders, calls or option to extend the terms of a contract. Upon 
notification of a felony conviction the contracting officer will review 
and make a new determination of eligibility prior to the issuance of 
any task order, call or exercise of an option.


3009.171-4  Determination of ownership, control, or operation.

    (a) The extent to which an individual owns, controls, or operates a 
business concern is determined on a case-by-case basis and depends on 
the specific facts of the individual's situation. Upon the request of 
the contracting officer, and prior to contract award, such individual 
must provide documentation to the contracting officer to use in 
determining ownership, control, or operation. The refusal to provide or 
to timely provide such documentation may serve as grounds to preclude 
contract award.
    (b) The interest of a spouse or other family member in the same 
business concern will be imputed to the individual in determining the 
extent to which the individual owns, controls, or operates the business 
concern.
    (c) The following are examples of when an individual owns, 
controls, or operates a business concern. The examples are not 
inclusive.
    (1) The individual is the president or chief executive officer of 
the business concern.
    (2) The individual is a senior level executive within the business 
concern, such as the Chief Financial Officer, Chief Operating Officer 
or Chief contracting official.
    (3) The individual is a general partner in the business concern.
    (4) An individual who is a general partner in a limited partnership 
has control. An individual with a limited partnership interest of 25% 
or more has ownership or control.
    (5) An individual owns, controls, or operates a business concern 
when the individual has the:
    (i) Power to vote, directly or indirectly, 25% or more interest in 
any class of voting stock of the business concern;
    (ii) Ability to direct in any manner the election of a majority of 
the business concern's directors or trustees; or
    (iii) Ability to exercise a controlling influence over the business 
concern's management and policies.


3009.171-5  Serious felonies prohibiting award.

    (a) Not all felony convictions will prohibit a business concern 
from being awarded a contract for FPS guard services. Those felonies 
that cast doubt on the integrity or business ethics of the business 
concern, or are of a nature that are inconsistent with the mission of 
the Federal Protective Service, are considered serious felonies that 
will prohibit contract award.
    (b) The following are examples of serious felonies prohibiting 
contract award.
    (1) Conviction of a felony involving fraud arising out of a 
contract with the federal, state or local government.
    (2) Conviction of a felony for bribery, graft or a conflict of 
interest.
    (3) Conviction of a felony involving threatened or actual harm to a 
government official or family member.
    (4) Conviction of a felony involving threatened or actual harm to 
government property.
    (5) Conviction of a felony involving a crime of violence.
    (6) Conviction of a felony involving a threat to national security.
    (7) Conviction of a felony for commercial bribery, counterfeiting, 
forgery or trafficking in vehicles the identification numbers of which 
have been altered.
    (8) Conviction of a felony for obstruction of justice, perjury or 
subornation of perjury, or bribery of a witness.
    (9) Conviction of a felony for attempt to evade or defeat Federal 
tax.
    (10) Conviction of a felony for willful failure to collect or pay 
over Federal tax.
    (11) Conviction on any other felony that meets the criteria of 
paragraph (a) of this subsection.


3009.171-6  Guidelines for contracting officers.

    (a) In accordance with FAR subpart 9.4, a contracting officer may 
not award a contract for FPS guard services to any business concern 
that is suspended, debarred or proposed for debarment unless the agency 
head determines that there is a compelling reason for such action.
    (b) The contracting officer shall not award a contract for FPS 
guard services to any business concern that is otherwise nonresponsible 
on the same contract.
    (c) The contracting officer shall not award an FPS guard services 
contract to any business concern that is owned, controlled or operated 
by an individual convicted of a serious felony as defined in (HSAR) 48 
CFR 3009.171-5 except as provided in paragraph (e) of this subsection.
    (d) In making the determination of (HSAR) 48 CFR 3009.171-7, the 
contracting officer may not review the fact of the conviction itself, 
but may consider any information provided by the individual or business 
concern, and any information known to the contracting officer. Factors 
that the contracting officer may consider include, but are not limited 
to:
    (1) The age of the conviction.
    (2) The nature and circumstances surrounding the conviction.
    (3) Protective measures taken by the individual or business concern 
to reduce or eliminate the risk of further misconduct.
    (4) Whether the individual has made full restitution for the 
felony.
    (5) Whether the individual has accepted responsibility for past 
misconduct resulting in the felony conviction.
    (e) The contracting officer may determine that the conviction of an 
otherwise serious felony is of such age, or committed under such 
circumstances, that the underlying felonious misconduct no longer calls 
into question the individual or business concern's integrity or 
business ethics, or that it is not inconsistent with the mission of the 
Federal Protective Service. Any such determination must be approved by 
the Head of the Contracting Activity (HCA) for U.S. Immigration and 
Customs Enforcement.


3009.171-7  Contract award approval procedures for contractors with 
felony convictions.

    (a) The HCA for U.S. Immigration and Customs Enforcement has sole 
discretion to approve a request to permit award of a contract for FPS 
guard services to a business concern owned,

[[Page 11516]]

controlled, or operated by an individual convicted of a felony, for any 
reason permitted by this regulation. This authority is not delegable.
    (b) A business concern owned, operated or controlled by an 
individual convicted of a felony may submit an award request to the 
contracting officer. The basis for such request shall be that the 
subject felony is not a serious felony as defined by this regulation, 
or that such individual no longer owns, controls or operates the 
business concern. The business concern shall bear the burden of proof 
for award requests.
    (c) A copy of the award approval request with supporting 
documentation or the approved request shall be attached with the bid or 
proposal.
    (d) An award approval request shall contain the basis for the 
request. If the basis for the request is that the subject felony is not 
a serious felony as defined by this regulation the award approval 
request shall contain, at a minimum, the following information:
    (1) Name and Date of Birth of Individual Convicted of a felony
    (2) Date sentenced
    (3) Statute/Charge
    (4) Docket/Case Number
    (5) Court/Jurisdiction
    (6) The nature and circumstances surrounding the conviction
    (7) Protective measures taken by the individual or business concern 
to reduce or eliminate the risk of further misconduct.
    (8) Whether the individual has made full restitution for the felony
    (9) Whether the individual has accepted responsibility for past 
misconduct resulting in the felony conviction.
    (e) If the contracting officer is unable to affirmatively determine 
that the subject felony is not a serious felony as defined by this 
regulation, or that such individual no longer owns, controls or 
operates the business concern, the contracting officer shall deny the 
award approval request and not forward such request to the HCA for U.S. 
Immigration and Customs Enforcement
    (f) If the contracting officer affirmatively determines that the 
subject felony is not a serious felony as defined by this regulation, 
or that such individual no longer owns, controls or operates the 
business concern, the contracting officer shall refer the request to 
the HCA for U.S. Immigration and Customs Enforcement with a 
recommendation that the request be approved.


3009.171-8  Ineligible contractors.

    Any business concern determined to be ineligible for award under 
(HSAR) 48 CFR 3009.171-4 shall be ineligible to receive a contract for 
guard services under the Federal Protective Service guard program until 
such time as:
    (a) The concern demonstrates that it has addressed and resolved the 
issues that resulted in the determination of ineligibility, and
    (b) Either:
    (1) The contracting officer makes an affirmative determination that 
the business concern is not owned, operated, or controlled by an 
individual convicted of a felony based on current information, or
    (2) The HCA for U.S. Immigration and Customs Enforcement approves 
an award request under (HSAR) 48 CFR 3009.171-6.


3009.171-9  Clause.

    Insert the clause (HSAR) 48 CFR 3052.209-XX, Prohibition on Federal 
Protective Service guard services contracts with business concerns 
owned, controlled, or operated by an individual convicted of a felony, 
in all solicitations and contracts for FPS guard services.

PART 3052--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Add section 3052.209-XX as follows:


3052.209-XX  Prohibition on Federal Protective Service guard services 
contracts with business concerns owned, controlled, or operated by an 
individual convicted of a felony

    As prescribed at (HSAR) 48 CFR 3009.171-9, insert the following 
clause:

Prohibition on Federal Protective Service Guard Services Contracts With 
Business Concerns Owned, Controlled, or Operated by an Individual 
Convicted of a Felony (Date)

    (a) Prohibitions. Section 2 of the Federal Protective Service 
Guard Contracting Reform Act of 2008, Public Law 110-356, prohibits 
the Department of Homeland Security from entering into a contract 
for guard services under the Federal Protective Service (FPS) guard 
services program with any business concern owned, controlled, or 
operated by an individual convicted of a serious felony.
    (b) Definitions. As used in this clause:
    Business concern means a commercial enterprise and the people 
who constitute it.
    Felony means an offense punishable by death or imprisonment for 
a term exceeding one year.
    Convicted of a felony means any conviction of a felony in 
violation of state or federal criminal statutes, including the 
Uniform Code of Military Justice, whether entered on a verdict or 
plea, including a plea of nolo contendere, for which a sentence has 
been imposed.
    Individual means any person, corporation, partnership, or other 
entity with a legally independent status.
    (c) The extent to which an individual owns, controls, or 
operates a business concern is determined on a case-by-case basis 
and depends on the specific facts of the individual's situation. 
Upon the request of the Contracting Officer, and prior to contract 
award, such individual must provide documentation to the Contracting 
Officer to use in determining ownership, control, or operation. The 
refusal to timely provide such documentation may serve as grounds to 
preclude contract award.
    (1) The interest of a spouse or other family member in the same 
organization will be imputed to the individual in determining the 
extent to which the individual owns, controls, or operates a 
business concern.
    (2) The following are examples of when an individual owns, 
controls, or operates a business concern. The examples are not 
inclusive.
    (i) The individual is the president or chief executive officer 
of the business concern.
    (ii) The individual is a senior level executive within the 
business concern, such as the Chief Financial Officer, Chief 
Operating Officer or Chief contracting official.
    (iii) The individual is a general partner in the business 
concern.
    (iv) An individual who is a general partner in a limited 
partnership has control. An individual with a limited partnership 
interest of 25% or more has ownership or control.
    (v) An individual owns, controls, or operates a business concern 
when the individual has the:
    (A) Power to vote, directly or indirectly, 25% or more interest 
in any class of voting stock of the business concern; Ability to 
direct in any manner the election of a majority of the business 
concern's directors or trustees; or
    (B) Ability to exercise a controlling influence over the 
business concern's management and policies.
    (d) Award request.
    (1) A business concern owned, operated or controlled by an 
individual convicted of a felony may submit an award request to the 
Contracting Officer. The basis for such request shall be that the 
subject felony is not a serious felony as defined by this 
regulation, or that such individual no longer owns, controls or 
operates the business concern. The business concern shall bear the 
burden of proof for award requests.
    (2) If the Contracting Officer, in his or her sole discretion, 
is unable to affirmatively determine that the subject felony is not 
a serious felony as defined by this regulation, or that such 
individual no longer owns, controls or operates the business 
concern, the Contracting Officer shall deny the award request. The 
Head of the Contracting Activity for U.S. Immigration and Customs 
Enforcement has sole discretion to approve an award request.
    (3) A copy of the award request with supporting documentation or 
the approved award request shall be attached with the bid or 
proposal.
    (4) An award request shall contain the basis for the request. If 
the basis for the

[[Page 11517]]

request is that the subject felony is not a serious felony as 
defined by this regulation the award request shall contain, at a 
minimum, the following information:
    (i) Name and Date of Birth of Individual Convicted of a felony.
    (ii) Date sentenced.
    (iii) Statute/Charge.
    (iv) Docket/Case Number.
    (v) Court/Jurisdiction.
    (vi) The nature and circumstances surrounding the conviction.
    (vii) Protective measures taken by the individual or business 
concern to reduce or eliminate the risk of further misconduct.
    (viii) Whether the individual has made full restitution for the 
felony
    (ix) Whether the individual has accepted responsibility for past 
misconduct resulting in the felony conviction.
    (e) Privacy Statement. The offeror will provide the following 
statement to any individual whose information will be submitted in 
an award request pursuant to paragraph (d)(4) of this clause.
    Privacy Act Notice. The collection of this information is 
authorized by the Federal Protective Service Guard Contracting 
Reform Act of 2008 (Pub. L. 110-356) and Department of Homeland 
Security (DHS) implementing regulations at Homeland Security 
Acquisition Regulation (HSAR) 48 CFR 3009.171. This information is 
being collected to determine whether an individual that owns, 
controls, or operates the business concern submitting this offer has 
been convicted of a felony that would disqualify the offeror from 
receiving an award. This information will be used by and disclosed 
to DHS personnel and contractors or other agents who require this 
information to determine whether an award request should be approved 
or denied. Additionally, DHS may share this personal information 
with the U.S. Justice Department and other Federal and State 
agencies for collection, enforcement, investigatory, or litigation 
purposes, or as otherwise authorized pursuant to its published 
Privacy Act system of records notice. Submission of this information 
by the individual is voluntary, however, failure to provide it may 
result in denial of an award to the offeror.
    (f) Disclosure. The offeror under this solicitation represents 
that [Check one]:

----it is not a business concern owned, controlled, or operated by 
an individual convicted of a felony; or
----it is a business concern owned, controlled, or operated by an 
individual convicted of a felony, and has submitted an award request 
pursuant to paragraph (d) of this clause.
    (g) If a request is applied for, the offeror shall attach the 
request with supporting documentation, to the bid or proposal. The 
supporting documentation may include copies of prior award requests 
granted to the offeror.
    (h) The notification in this paragraph applies if this is an 
indefinite delivery/indefinite quantity contract, blanket purchase 
agreement, or other contractual instrument that may result in the 
issuance of task orders, calls or option to extend the terms of a 
contract. The Contractor must immediately notify the Contracting 
Officer in writing upon any felony conviction of personnel who own, 
control or operate a business concern as defined in paragraph (c) of 
this clause at any time during the performance of this contract. 
Upon notification of a felony conviction the Contracting Officer 
will review and make a new determination of eligibility prior to the 
issuance of any task order, call or exercise of an option.

(End of clause)

[FR Doc. E9-5795 Filed 3-17-09; 8:45 am]

BILLING CODE 4410-10-P