FAR 9.407-3—Procedures.
Plain-English Summary
FAR 9.407-3 explains the procedures agencies must use when suspending a contractor, from the initial reporting and referral of potential suspension matters through the notice, contractor response, fact-finding, and final decision process. It covers agency procedures for prompt investigation and referral, the informal but fair decision-making process, the contractor’s right to respond after suspension, when additional proceedings are required to resolve disputed material facts, what must be included in the notice of suspension, and how the suspending and debarring official must base the final decision on the administrative record. In practice, this section is the due-process framework for suspension actions: it balances the Government’s need to protect itself quickly from potentially irresponsible contractors against the contractor’s right to know the allegations and contest them. It also distinguishes between actions based on an indictment and those based on other evidence, because that distinction affects whether the contractor gets a fuller evidentiary opportunity. For contractors, this section is critical because it tells them what information they must provide, what deadlines apply, and what happens if they fail to disclose required information or provide false statements. For agencies and contracting officials, it is the roadmap for building a defensible suspension action that is prompt, fair, and properly documented.
Key Rules
Prompt reporting and referral
Agencies must establish procedures for promptly reporting, investigating, and referring matters that may warrant suspension to the suspending and debarring official. The goal is to ensure potentially serious integrity issues are elevated quickly enough to protect the Government while the facts are still fresh.
Informal but fair process
The suspension decision-making process must be as informal as practicable, but still consistent with fundamental fairness. The contractor and any specifically named affiliates must be allowed to submit information and argument in opposition after suspension, either in person, in writing, or through a representative.
Deadline for opposition materials
If the suspending and debarring official invites the contractor to submit opposition materials, the official should set a deadline for those submissions. This helps keep the process moving and prevents suspension matters from lingering without resolution.
Flexible procedures may be used
The suspending and debarring official may use the flexible procedures in FAR 9.406-3(b)(1). If those procedures are used, the suspension notice should be revised to tell the contractor what those procedures are.
Extra hearing rights in non-indictment cases
If the action is not based on an indictment and the contractor raises a genuine dispute over material facts, additional proceedings are required unless DOJ or a prosecutor advises that such proceedings would prejudice substantial Government interests in related legal proceedings. In that situation, the contractor may present counsel, documentary evidence, witnesses, and confrontation of agency-presented persons, and a transcript must be made unless waived by agreement.
Detailed notice requirements
The suspension notice must tell the contractor it has been suspended, identify the cause under FAR 9.407-2, explain the temporary nature of the action, describe the effect of suspension, and state the contractor’s right to respond within 30 days. The notice must describe the alleged irregularities with enough detail to provide notice without revealing the Government’s evidence.
Contractor disclosure obligations
The contractor must identify specific facts contradicting the notice, including information about the factors in FAR 9.406-1(a), all existing or prior exclusions and similar actions by Federal, State, or local agencies, all related criminal and civil proceedings not already listed, and all affiliates. A general denial is not enough to create a genuine dispute over material facts.
Consequences of false or incomplete disclosure
If the contractor fails to disclose required information or provides false information, the agency may pursue additional criminal, civil, or administrative action as appropriate. This makes full and accurate disclosure a material part of the contractor’s response.
Decision based on the administrative record
For indictment-based actions, actions where no genuine factual dispute is raised, or actions where further proceedings are denied for prosecutorial-prejudice reasons, the suspending and debarring official must decide based on the full administrative record, including the contractor’s submission.
Findings of fact for disputed issues
When additional proceedings are required, written findings of fact must be prepared and the decision must be based on those findings plus the contractor’s submissions and the administrative record. The official may refer disputed factual matters to another official for findings, but may reject those findings only if they are arbitrary and capricious or clearly erroneous.
Responsibilities
Agency
Establish procedures for prompt reporting, investigation, and referral of suspension matters; ensure the process is fair and efficient; provide required notices; and maintain the administrative record supporting the action.
Suspending and Debarring Official
Make the suspension decision using the required procedures; set deadlines for contractor submissions when appropriate; decide whether additional proceedings are required; issue a notice that includes all required information; and base the final decision on the administrative record and any findings of fact.
Contractor
Respond to the suspension notice within 30 days; submit information and argument in opposition; identify specific facts that dispute the allegations; disclose prior exclusions, similar actions, related proceedings, and affiliates; and avoid false or incomplete disclosures.
Specifically Named Affiliates
Participate in the process as applicable and may submit information and argument in opposition when specifically named in the suspension action.
Department of Justice / U.S. Attorney / State or Local Prosecutor
Provide advice when needed on whether additional proceedings would prejudice substantial Government interests in pending or contemplated legal proceedings based on the same facts.
Other Fact-Finding Official
When the suspending and debarring official refers disputed factual matters, conduct fact-finding and prepare written findings of fact for the official’s consideration.
Practical Implications
Contractors should treat the 30-day response period as a hard deadline and use it to submit specific, evidence-based rebuttals rather than a general denial.
A suspension notice is not just a warning; it is a required roadmap of the allegations, the basis for the action, and the contractor’s response rights, so missing details or vague allegations can be challenged.
If the contractor wants a fuller evidentiary process, it must show a genuine dispute over material facts; unsupported denials usually will not trigger additional proceedings.
Agencies need a well-documented administrative record because the final decision must stand on that record, especially in indictment-based cases or when no further hearing is allowed.
Failure to disclose affiliates, related proceedings, or prior exclusions can seriously damage credibility and may lead to additional enforcement action beyond the suspension itself.
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 suspension 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, following the imposition of suspension, to submit, in person, in writing, or through a representative, information and argument in opposition to the suspension. 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 the flexible procedures in 9.406-3 (b)(1); if so, the suspending and debarring official should change the notice in paragraph (c)(5) of this section to include those flexible procedures. (2) In actions not based on an indictment, if it is found that the contractor’s submission in opposition raises a genuine dispute over facts material to the suspension and if no determination has been made, on the basis of advice from the Department of Justice, a U.S. Attorney's office, State attorney general's office, or a State or local prosecutor's office, that substantial interests of the Government in pending or contemplated legal proceedings based on the same facts as the suspension would be prejudiced, 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 suspension . When a contractor and any specifically named affiliates are suspended, they shall be immediately advised using the procedures in 9.406-3 (c)(1) and (2)— (1) That they have been suspended and that the suspension is based on an indictment or other adequate evidence that the contractor has committed irregularities– (i) Of a serious nature in business dealings with the Government; or (ii) Seriously reflecting on the propriety of further Government dealings with the contractor—any such irregularities shall be described in terms sufficient to place the contractor on notice without disclosing the Government's evidence; (2) That the suspension is for a temporary period pending the completion of an investigation and such legal proceedings as may ensue; (3) Of the cause(s) relied upon under 9.407-2 for imposing suspension; (4) Of the effect of the suspension; (5) 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 suspension, including any additional specific information that raises a genuine dispute over the material facts; (6) That additional proceedings to determine disputed material facts will be conducted unless– (i) The action is based on an indictment; or (ii) A determination is made, on the basis of advice by the Department of Justice, a U.S. Attorney's office, State attorney general's office, or a State or local prosecutor's office, that the substantial interests of the Government in pending or contemplated legal proceedings based on the same facts as the suspension would be prejudiced; (7) That, in addition to any information and argument in opposition to a suspension, the contractor must identify– (i) Specific facts that contradict the statements contained in the notice of suspension. 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 suspension; (ii) 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; (iii) All criminal and civil proceedings not included in the notice of suspension that grew out of facts relevant to the cause(s) stated in the notice; and (iv) All of the contractor's affiliates; and (8) That if the contractor fails to disclose the information in paragraph (c)(7) 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) The suspending and debarring official's decision shall be based on all the information in the administrative record, including any submission made by the contractor, for actions— (i) Based on an indictment; (ii) In which the contractor's submission does not raise a genuine dispute over material facts; or (iii) In which additional proceedings to determine disputed material facts have been denied on the basis of advice from the Department of Justice, a U.S. Attorney's office, State attorney general's office, or a State or local prosecutor's office. (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) Thesuspending 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) The suspending and debarring official may modify or terminate the suspension or leave it in force (for example, see 9.406-4 (c) for the reasons for reducing the period or extent of debarment). However, a decision to modify or terminate the suspension shall be without prejudice to the subsequent imposition of— (i) Suspension by any other agency; or (ii) Debarment by any agency. (4) Prompt written notice of the suspending and debarring official's decision shall be sent to the contractor and any affiliates involved, using the procedures in 9.406-3 (c)(1) and (2). (e) Administrative agreement . (1) If the contractor enters into an administrative agreement with the Government in order to resolve a suspension or potential suspension proceeding, the suspending and debarring official shall access the website (available at https://www.cpars.gov , 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). (f) Voluntary exclusion . (1) If the contractor enters into a voluntary exclusion with the Government in order to resolve a suspension or potential suspension proceeding, 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). (g) Pre-notice letter . Prior to initiating a suspension, 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 suspension under this subpart. (See 9.403 .)