FAR 9.406-3—Procedures.
Plain-English Summary
FAR 9.406-3 lays out the procedures agencies must use when considering debarment, from the initial reporting and referral of potential debarment matters through the notice, contractor response, fact-finding, and final decision. It covers agency procedures for prompt investigation and referral, the requirement that debarment decision-making be as informal as practicable while still fair, the contractor’s right to respond in person, in writing, or through a representative, and special procedures when disputed material facts require additional proceedings. It also specifies how the notice of proposed debarment must be delivered, what the notice must contain, what the contractor must disclose in opposition, and how the suspending and debarring official must decide the case based on the administrative record or on findings of fact when facts are disputed. In practice, this section is the procedural backbone of debarment actions: it is designed to protect due process, ensure the government acts on a complete and accurate record, and give contractors a meaningful chance to contest proposed exclusion before a final debarment is imposed. For contractors, it defines the response deadline, the disclosure burden, and the risk of further action for incomplete or false submissions. For agencies and suspending and debarring officials, it establishes the minimum process, recordkeeping, and decision standards that must be followed to make a defensible debarment decision.
Key Rules
Prompt referral procedures
Agencies must have procedures for promptly reporting, investigating, and referring matters that may warrant debarment to the suspending and debarring official. The goal is to ensure potentially serious integrity issues are elevated quickly and handled consistently.
Informal but fair process
Debarment procedures must be as informal as practicable, but still consistent with fundamental fairness. Contractors and any specifically named affiliates must be allowed to submit information and argument in opposition, either in person, in writing, or through a representative.
Deadline and flexible presentation
If the official invites opposition materials, the official should set a deadline for submission. The official may also allow in-person or remote presentations using appropriate technology, and the notice should be updated to reflect any such flexible procedures.
Extra process for disputed facts
When the action is not based on a conviction or civil judgment and the contractor raises a genuine dispute over material facts, the agency must provide a fuller evidentiary process. That includes the opportunity to appear with counsel, present documentary evidence and witnesses, confront agency witnesses, and obtain a transcribed record at cost unless waived.
Notice requirements
The notice of proposed debarment must be sent by approved delivery methods to the contractor and any specifically named affiliates, and to the contractor’s or affiliate’s counsel or agent if applicable. The notice must state that debarment is being considered, the reasons and causes relied on, the response deadline, the agency procedures, the effects of the notice and a final debarment, and the disclosure obligations imposed on the contractor.
Required contractor disclosures
To oppose the proposed debarment, the contractor must identify specific facts contradicting the notice, including information relevant to the factors in 9.406-1(a). The contractor must also disclose existing, proposed, or prior exclusions and similar actions, related criminal and civil proceedings, and all affiliates; a general denial is not enough to create a genuine factual dispute.
Consequences of incomplete or false disclosure
If the contractor fails to provide the required disclosure information, or provides false information, the agency may pursue further criminal, civil, or administrative action as appropriate. This makes candor and completeness critical in any debarment response.
Decision on the record
If the case is based on a conviction or civil judgment, or if there is no genuine dispute over material facts, the suspending and debarring official decides the matter on the administrative record, including the contractor’s submission. If no suspension is in effect, the decision should be made within 45 days after the record closes, unless extended for good cause.
Findings for disputed facts
If additional proceedings are needed because material facts are disputed, written findings of fact must be prepared. The official decides the case based on those findings, the contractor’s submission, and the administrative record, and may refer fact-finding to another official.
Limited rejection of fact findings
If another official makes findings of fact, the suspending and debarring official may reject them only after specifically determining they are arbitrary and capricious or clearly erroneous. This creates a meaningful check on overturning fact-finding without a strong basis.
Responsibilities
Agency
Establish procedures for prompt reporting, investigation, and referral of potential debarment matters; ensure debarment procedures are fair and workable; and support the administrative record and any additional fact-finding needed for disputed issues.
Suspending and Debarring Official
Issue the notice of proposed debarment, ensure the notice contains all required information, allow the contractor to respond, manage deadlines and any flexible presentation procedures, decide the case on the record or after fact-finding, and issue the final debarment decision within the required timeframe when applicable.
Contractor
Respond to the proposed debarment within 30 days, submit information and argument in opposition, identify specific facts and required disclosure items, and provide complete and truthful information about affiliates, related proceedings, and prior exclusions.
Specifically Named Affiliates
Receive notice and may submit information and argument in opposition when specifically named in the proposed debarment action.
Counsel or Representative
May receive notice for the contractor or affiliate and may present information and argument on their behalf during the debarment process.
Fact-Finding Official
When disputed material facts require additional proceedings, prepare written findings of fact for the suspending and debarring official to use in making the decision.
Practical Implications
Contractors should treat a proposed debarment notice as a time-sensitive legal matter, not a routine administrative letter, because the response window is generally 30 days and the notice may require detailed disclosures.
A bare denial is not enough when the contractor wants to create a genuine factual dispute; the response must identify specific contradictory facts and supporting evidence.
Incomplete disclosure of affiliates, related proceedings, or prior exclusions can undermine the defense and may trigger additional enforcement action.
Agencies need a clean administrative record and careful notice drafting, because defects in notice content, delivery, or process can weaken the debarment action.
When material facts are disputed, the process becomes more formal and evidentiary, so both sides should be prepared for witness testimony, documentary evidence, and a transcribed record.
Official Regulatory Text
(a) Investigation and referral . Agencies shall establish procedures for the prompt reporting, investigation, and referral to the suspending and debarring official of matters appropriate for that official’s consideration. (b) Decision-making process . (1) Agencies shall establish procedures governing the debarment decision-making process that are as informal as is practicable, consistent with principles of fundamental fairness. These procedures shall afford the contractor (and any specifically named affiliates) an opportunity to submit, in person, in writing, or through a representative, information and argument in opposition to the proposed debarment. If the suspending and debarring official extends the opportunity for the contractor to submit material in opposition, then the official should also give a deadline for submission of materials. The suspending and debarring official may use flexible procedures to allow a contractor to present matters in opposition in person or remotely through appropriate technology; if so, the suspending and debarring official should change the notice in paragraph (c)(3)(iv) of this section to include those flexible procedures. (2) In actions not based upon a conviction or civil judgment, if it is found that the contractor’s submission in opposition raises a genuine dispute over facts material to the proposed debarment, agencies shall also- (i) Afford the contractor an opportunity to appear with counsel, submit documentary evidence, present witnesses, and confront any person the agency presents; and (ii) Make a transcribed record of the proceedings and make it available at cost to the contractor upon request, unless the contractor and the agency, by mutual agreement, waive the requirement for a transcript. (c) Notice of proposal to debar . A notice of proposed debarment shall be issued by the suspending and debarring official to the contractor and any specifically named affiliates. (1) The written notice shall be sent— (i) By U.S. mail or private delivery service to the last known street address, with delivery notification service; (ii) By email to the point of contact email address in the contractor's SAM registration, if any, or to the last known email address as confirmed by the agency; or (iii) By certified mail to the last known street address with return receipt requested. (2) The notice shall be sent— (i) To the contractor, the contractor's identified counsel for purposes of the administrative proceedings, or the contractor's agent for service of process; and (ii) For each specifically named affiliate, to the affiliate itself, the affiliate's identified counsel for purposes of the administrative proceedings, or the affiliate's agent for service of process. (3) The notice shall state— (i) That debarment is being considered; (ii) The reasons for the proposed debarment in terms sufficient to put the contractor on notice of the conduct or transaction(s) upon which it is based; (iii) The cause(s) relied upon under 9.406-2 for proposing debarment; (iv) That, within 30 days after receipt of the notice, the contractor may submit, in person, in writing, or through a representative, information and argument in opposition to the proposed debarment, including any additional specific information that raises a genuine dispute over the material facts; (v) The agency's procedures governing debarment decision making; (vi) The effect of the issuance of the notice of proposed debarment; (vii) The potential effect of an actual debarment; (viii) That in addition to any information and argument in opposition to a proposed debarment, the contractor must identify— (A) Specific facts that contradict the statements contained in the notice of proposed debarment. Include any information about any of the factors listed in 9.406-1(a). A general denial is insufficient to raise a genuine dispute over facts material to the proposed debarment; (B) All existing, proposed, or prior exclusions and all similar actions taken by Federal, State, or local agencies, including administrative agreements that affect only those agencies; (C) All criminal and civil proceedings not included in the notice of proposed debarment that grew out of facts relevant to the cause(s) stated in the notice; and (D) All of the contractor's affiliates; and (ix) That if the contractor fails to disclose the information in paragraph (c)(3)(viii) of this section, or provides false information, the agency taking the action may seek further criminal, civil, or administrative action against the contractor, as appropriate. (d) Suspending and debarring official’s decision . (1) In actions based upon a conviction or civil judgment, or in which there is no genuine dispute over material facts, the suspending and debarring official shall make a decision on the basis of all the information in the administrative record, including any submission made by the contractor. If no suspension is in effect, the decision shall be made within 45 days from the date that the official administrative record is closed, unless the suspending and debarring official extends this period for good cause. The official record closes upon the expiration of the contractor's time to submit information and argument in opposition, including any extensions (see paragraph (b)(1) of this section). (2) (i) In actions in which additional proceedings are necessary as to disputed material facts, written findings of fact shall be prepared. The suspending and debarring official shall base the decision on the facts as found, together with any information and argument submitted by the contractor and any other information in the administrative record. (ii) The suspending and debarring official may refer matters involving disputed material facts to another official for findings of fact. The suspending and debarring official may reject any such findings, in whole or in part, only after specifically determining them to be arbitrary and capricious or clearly erroneous. (iii) The suspending and debarring official's decision shall be made after the conclusion of the proceedings with respect to disputed facts. (3) In any action in which the proposed debarment is not based upon a conviction or civil judgment, the cause for debarment must be established by a preponderance of the evidence. (e) Notice of suspending and debarring official's decision . (1) If the suspending and debarring official decides to impose debarment, the contractor and any affiliates involved shall be given prompt notice using the procedures in paragraphs (c)(1) and (2) of this section— (i) Referring to the notice of proposed debarment; (ii) Specifying the reasons for debarment; (iii) Stating the period of debarment, including effective dates; and (iv) Advising that the debarment is effective throughout the executive branch of the Government unless the head of an agency or a designee makes the statement called for by 9.406-1 (d). (2) If debarment is not imposed, the suspending and debarring official shall promptly notify the contractor and any affiliates involved, using the procedures in paragraphs (c)(1) and (2) of this section. (f) Administrative agreements . (1) If the contractor enters into an administrative agreement with the Government in order to resolve a debarment or potential debarment proceeding, the suspending and debarring official shall access the website (available at , then select FAPIIS), enter the requested information, and upload documentation reflecting the administrative agreement. (2) The suspending and debarring official is responsible for the timely and accurate submission of documentation reflecting the administrative agreement. The submission should be made within 3 working days. (3) With regard to information that may be covered by a disclosure exemption under the Freedom of Information Act, the suspending and debarring official shall follow the procedures at 9.105-2 (b)(2)(iv). (g) Voluntary exclusions . (1) If the contractor enters into a voluntary exclusion with the Government in order to resolve a debarment or potential debarment matter, the suspending and debarring official shall access the website (available at ) and enter the requested information into the exclusions section of SAM (see 9.404 (c)(3)). (2) The suspending and debarring official is responsible for the timely and accurate submission of documentation reflecting the voluntary exclusion. The submission should be made within 3 working days. (3) Regarding information that may be covered by a disclosure exemption under the Freedom of Information Act, the suspending and debarring official shall follow the procedures at 9.105-2 (b)(2)(iv). (h) Pre-notice letters . Prior to initiating a proposed debarment, a pre-notice letter may be issued at the discretion of the agency suspending and debarring official. A pre-notice letter is not required to initiate debarment under this subpart. (See 9.403 .)