FAR 9.403—Definitions.
Plain-English Summary
FAR 9.403 is the definitions section for the suspension and debarment subpart, and it supplies the vocabulary used to decide who can be excluded from federal contracting and related activities, on what basis, and through what process. It defines administrative agreement, affiliates, agency, civil judgment, conviction, contractor, indictment, legal proceedings, Nonprocurement Common Rule, pre-notice letter, unfair trade practices, and voluntary exclusion. These definitions matter because they determine the reach of exclusion actions, including whether conduct by related entities counts, whether criminal or civil outcomes trigger action, and whether a person or company is covered as a contractor even through affiliates or as an agent for another contractor. The section also ties procurement suspension and debarment to the broader governmentwide exclusion framework used for nonprocurement transactions under 2 CFR part 180. In practice, this section is the gateway to understanding who may be suspended or debarred, what evidence or legal outcomes are relevant, and how settlement tools like administrative agreements or voluntary exclusions can resolve matters without immediate exclusion. Contractors and contracting officials rely on these definitions to assess risk, determine responsibility, and ensure exclusion decisions are applied consistently across agencies and transaction types.
Key Rules
Administrative agreements resolve cases
An administrative agreement is a negotiated agreement between the suspending and debarring official and the contractor used to resolve an actual or potential suspension or debarment matter. It is a settlement tool, not an automatic right, and its terms are shaped by the agency’s concerns and the contractor’s proposed remedies.
Affiliate control is broad
Affiliates exist when one party controls or has the power to control another, or when a third party controls both. Control can be shown by ownership, management overlap, shared facilities, common employees, family relationships, or a newly formed entity that resembles a debarred or suspended contractor.
Agency means executive branch entities
For this subpart, agency includes executive departments, military departments, defense agencies, and other executive branch agencies or independent establishments. This definition identifies the federal entities that may initiate or apply suspension and debarment actions under the FAR.
Civil and criminal outcomes count
A civil judgment includes verdicts, decisions, settlements, stipulations, other dispositions creating civil liability, and final PFCRA liability determinations. A conviction includes judgments of guilt, pleas including nolo contendere, and functional equivalents such as probation before judgment or deferred prosecution when they include an admission of guilt.
Contractor coverage is expansive
A contractor is not limited to a prime contractor; it includes entities that submit offers, are awarded contracts, reasonably may be expected to do so, hold carriage contracts, or perform as subcontractors. It also includes entities acting as agents or representatives of another contractor, directly or indirectly through affiliates.
Indictment includes equivalent charging documents
An indictment means an indictment for a criminal offense, but an information or other filing by competent authority charging a criminal offense has the same effect. This prevents parties from avoiding suspension/debarment consequences simply because the criminal charge was brought by a different procedural vehicle.
Legal proceedings include appeals
Legal proceedings cover civil judicial proceedings involving the Government and criminal proceedings, including appeals. This means suspension and debarment officials may consider the broader litigation posture, not just the initial trial-level event.
Nonprocurement exclusions follow separate rules
The Nonprocurement Common Rule governs suspension, debarment, and exclusion from nonprocurement transactions such as grants, loans, subsidies, and assistance agreements. FAR procurement exclusions and nonprocurement exclusions are related but operate under different regulatory frameworks.
Pre-notice letters are optional
A pre-notice letter is discretionary correspondence that may be issued before a suspension or debarment action, but it does not itself impose exclusion or ineligibility. Agencies may use it as an early warning or due-process step, but it is not required.
Unfair trade practices are specific grounds
Unfair trade practices include certain Tariff Act violations, specified export-control agreement violations, and knowingly false foreign-content certifications. These are defined misconduct categories that can support suspension or debarment action when established by the appropriate authority.
Voluntary exclusion must be governmentwide
A voluntary exclusion is a contractor’s written agreement to be excluded for a period under a settlement with one or more suspending and debarring officials, and it must have governmentwide effect. It is a negotiated exclusion, not a limited agency-only restriction.
Responsibilities
Suspending and Debarring Official
Determine whether to issue a pre-notice letter, negotiate administrative agreements, and enter into voluntary exclusions when appropriate. Apply the definitions of affiliate, contractor, conviction, indictment, civil judgment, and legal proceedings to decide whether exclusion action is warranted and how broadly it should apply.
Contractor
Understand that coverage may extend through affiliates, agents, subcontracting relationships, and successor-like entities. Disclose and address relevant civil or criminal matters, respond to agency concerns, and, if seeking resolution, negotiate realistic administrative agreements or voluntary exclusions that satisfy governmentwide requirements.
Agency
Use these definitions consistently when initiating, supporting, or implementing suspension and debarment actions. Coordinate across components and with other agencies so that exclusions, voluntary exclusions, and related settlement terms are applied with the intended governmentwide effect.
Contracting Officer
Recognize when a contractor or affiliate may be subject to suspension or debarment and avoid awarding contracts to excluded or ineligible entities. Consider the broad definition of contractor and affiliate when evaluating responsibility, past performance, and award eligibility.
Legal and Compliance Personnel
Assess whether civil settlements, criminal resolutions, charging documents, or foreign-content certifications fall within these definitions. Advise on affiliate risk, successor entity concerns, and the implications of governmentwide exclusion or nonprocurement exclusion rules.
Practical Implications
The affiliate definition is one of the most important risk areas because exclusion can reach related entities, not just the named company. Contractors should review ownership, management, family ties, shared resources, and post-debarment reorganizations before assuming a new entity is outside the scope of an action.
A civil settlement or criminal resolution may still count for suspension and debarment purposes even if it does not look like a traditional judgment. Contractors should not assume that deferred prosecution, probation before judgment, stipulations, or PFCRA findings are irrelevant.
The term contractor is broader than many businesses expect, so subcontractors, agents, and representatives can be covered even if they do not hold a prime contract. This can affect eligibility, reporting obligations, and internal compliance screening.
Pre-notice letters and administrative agreements are important practical tools, but they are not the same as formal exclusion decisions. A contractor should treat them seriously, because they often signal that the agency is considering suspension or debarment and may require immediate remedial action.
Voluntary exclusion is governmentwide, so a settlement with one agency can affect the contractor across the federal government. Before agreeing to one, contractors should understand the duration, scope, and collateral consequences for affiliates and related entities.
Official Regulatory Text
As used in this subpart— Administrative agreement means an agreement between an agency suspending and debarring official and the contractor used to resolve a suspension or debarment proceeding, or a potential suspension or debarment proceeding. Affiliates. – (1) Business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly– (i) Either one controls or has the power to control the other; or (ii) A third party controls or has the power to control both. (2) Indicia of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, common use of employees, or a business entity organized following the debarment, suspension, or proposed debarment of a contractor which has the same or similar management, ownership, or principal employees as the contractor that was debarred, suspended, or proposed for debarment. Agency means any executive department, military department or defense agency, or other agency or independent establishment of the executive branch. Civil judgment means the disposition of a civil action by any court of competent jurisdiction, whether by verdict, decision, settlement, stipulation, other disposition that creates a civil liability for the complained of wrongful acts, or a final determination of liability under the Program Fraud Civil Remedies Act of 1986 ( 31 U.S.C. 3801-3812 ). Conviction means— (1) A judgment or any other determination of guilt of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or plea, including a plea of nolo contendere; or (2) Any other resolution that is the functional equivalent of a judgment establishing a criminal offense by a court of competent jurisdiction, including probation before judgment and deferred prosecution. A disposition without the participation of the court is the functional equivalent of a judgment only if it includes an admission of guilt. Contractor means any individual or other legal entity that– (1) Directly or indirectly ( e.g., through an affiliate), submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded, a Government contract, including a contract for carriage under Government or commercial bills of lading, or a subcontract under a Government contract; or (2) Conducts business, or reasonably may be expected to conduct business, with the Government as an agent or representative of another contractor. Indictment means indictment for a criminal offense. An information or other filing by competent authority charging a criminal offense is given the same effect as an indictment. Legal proceedings means any civil judicial proceeding to which the Government is a party or any criminal proceeding. The term includes appeals from such proceedings. Nonprocurement Common Rule means the procedures used by Federal Executive Agencies to suspend, debar, or exclude individuals or entities from participation in nonprocurement transactions under Executive Order 12549. Examples of nonprocurement transactions are grants, cooperative agreements, scholarships, fellowships, contracts of assistance, loans, loan guarantees, subsidies, insurance, payments for specified use, and donation agreements. See 2 CFR part 180 and agency enacting regulations in 2 CFR subtitle B . Pre-notice letter means a written correspondence issued to a contractor in a suspension or debarment matter, which does not immediately result in an exclusion or ineligibility. The letter is issued at the discretion of the suspending and debarring official. The letter is not a mandatory step in the suspension or debarment process. Unfair trade practices means the commission of any or the following acts by a contractor– (1) A violation of section 337 of the Tariff Act of 1930 ( 19 U.S.C. 1337 ) as determined by the International Trade Commission. (2) A violation, as determined by the Secretary of Commerce, of any agreement of the group known as the "Coordination Committee" for purposes of the Export Administration Act of 1979 (50 U.S.C. App. 2401, et seq.) or any similar bilateral or multilateral export control agreement. (3) A knowingly false statement regarding a material element of a certification concerning the foreign content of an item of supply, as determined by the Secretary of the Department or the head of the agency to which such certificate was furnished. Voluntary exclusion means a contractor's written agreement to be excluded for a period under the terms of a settlement between the contractor and the suspending and debarring official of one or more agencies. A voluntary exclusion must have Governmentwide effect.