clared to be appropriate for the case in question.

(2) Every determination under subparagraph (1) of this paragraph shall be retained in an appropriate contract file.

§ 207.5 Waiver in the national interest.

(a) Authority. The Regional Assistant Administrator may waive the provisions of part IV if he determines in any case that it is important to the national interest of the United States that the direct costs of construction work performed by third country nationals be financed out of funds made available by the Act. This authority may not be delegated.

(b) Guidelines. In making any determination pursuant to subpart VI (A) the Regional Assistant Administrator shall be guided by all relevant considerations, including

(1) The security interest of the United States, especially with respect to the construction of defense installations, communications facilities or other projects of a nature substantially related to the defense requirements of the United States, including in this regard whether the use of third country nationals would

appreciably accelerate such construction or would otherwise serve the security interest of the United States;

(2) The urgency of the proposed construction, especially following any disaster in the recipient country, and the extent to which the employment of third country nationals would appreciably accelerate such construction;

(3) The request of a recipient country that all third country nationals or only certain nationals of member countries in a regional economic federation of states be granted rights of equal employment with nationals of the recipient country, particularly if the domestic laws, treaty or other international obligations of the recipient country prohibit discrimination in employment within its territory on the basis of national origin;

(4) The views of other donor powers

or lending-institution participants (including the recipient country) in the financing of the construction in question, especially in instances where the United States will finance less than 50 percent of the cost of the construction;

(5) The attainment of United States foreign policy objectives and the objectives of the Foreign Assistance Program.

(a) "Administrator" means the Administrator or Deputy Administrator of A.I.D. or his delegate.

(b) "Adversary hearing" means the kind of hearing required by section 7(c) of the Administrative Procedure Act, 60 Stat. 241; 5 U.S.C. 1C06, but without regard to other provisions of that Act.

(c) "Affected person" means the supplier or any affiliate firm who is the subject of an A.I.D. suspension or proposed debarment order.

(d) "Affiliate" means a firm associated with the supplier in any manner indicated in § 208.11.

(e) "A.I.D." means the Agency for International Development.

(f) "Attorney General" means the Attorney General or Deputy Attorney General of the United States or his delegate.

(g) "Borrower/grantee" means the government of any country to which A.I.D. provides any form of assistance, or any agency, instrumentality or political subdivision of such a country, or any private entity to which A.I.D. directly makes funds available by loan or grant.

(h) "Charge" means any allegation of wrongdoing which

(1) Constitutes the basis, in whole or in part, for a criminal indictment or information secured by the United States or the basis for a civil complaint brought by the United States against an affected person; and

(2) Concerns facts which may constitute a cause for debarment by A.I.D. under § 208.5.

(i) "Commodity-related service" means any service necessary to effect a physical transfer of commodities from the country of export to the aid-recipient country or any service associated with the installation of equipment or use of any commodity.

(j) "Debarment" means a determination by A.I.D. pursuant to a cause for debarment prescribed in § 208.5 and in

accordance with the procedures indicated in § 208.12 (b) that A.I.D. will exclude affected persons from eligibilty for A.I.D.financed contracts for the supply of commodities or commodity-related services for a fixed period of time.

(k) "Implementing document" means any document issued by A.I.D. which authorizes the use of A.I.D. funds for the procurement of commodities or commodity-related services and which specifies the conditions which shall apply to such procurement. The term includes an A.I.D. Letter of Commitment to a bank as well as a Special Letter of Credit. (1) "Ineligible" means suspended.

debarred or

(m) "Supplier" means any person or other entity which furnishes commodities or commodity-related services.

(n) "Suspension” means a determination by A.I.D. pursuant to § 208.7 that A.I.D. will exclude affected persons from eligibility for A.I.D.-financed contracts for the supply of commodities or commodity-related services for a period subject to the limitations prescribed in §§ 208.8 and 208.9, pending determination by A.I.D. whether to proceed with debarment action.

Subpart B-Ineligible Suppliers:
Debarment and Suspension

§ 208.4 Ineligible suppliers.

A.I.D. will not make funds available to finance the cost of commodities or commodity-related services provided by any supplier whose name appears on the A.I.D. "List of Ineligible Suppliers." A supplier may be placed on this list only for the causes specified in § 208.5 or § 208.7 and only in accordance with the procedures described in Subpart D. § 208.5

Causes for debarment.

(a) Violation of a substantial nature of any A.I.D. regulation; or

(b) Fraud incident to obtaining or performing a contract financed by any agency of the United States for the supply of commodities or commodity-related services; or

(c) Any other conduct showing a present lack of business integrity or business honesty which seriously and directly affects the question of the present responsibility of the affected person as a supplier under A.I.D.-financed contracts.

(a) Relation to seriousness of the cause. Debarment shall continue for a definitely stated period of time which shall be reasonably related.

(1) To the seriousness of the cause for debarment; and

(2) To any sanction imposed upon the supplier as a result of any criminal or civil fraud judgment.

(b) Maximum duration of debarment. Debarment shall be limited to a period of three years. This period may be extended, however, to include any prison term, whether or not suspended, to which the supplier has been sentenced in connection with any cause for debarment. § 208.7 Cause for suspension.

Upon probable cause for belief that a supplier has engaged in conduct which constitutes a cause for debarment, the Administrator may direct the suspension of the supplier and of any affiliated firm pending determination of the debarment issue.

§ 208.8

Duration of suspension.

(a) Relation to A.I.D. investigation. The period of suspension shall be reasonably related to the time-period necessary for A.I.D. to complete its investigation and to determine whether further steps to debar the supplier and any affiliated firm are appropriate.

(b) Limitation on the duration of suspension. Except as provided in § 208.9, the period of suspension shall not exceed one year.

§ 208.9 Extension of suspension.

(a) If charge brought. If a charge is brought against a supplier either before or after notice of suspension under § 208.13 has been received, A.I.D. may extend the suspension until:

(1) Judicial proceedings on the charge have been completed; or

(2) The charge has been withdrawn. (b) If no charge brought. If during the period of suspension the Attorney General determines and notifies the Administrator that although no charge has been brought against the supplier, disclosure by A.I.D. of evidence of wrongful conduct by the supplier would substantially hamper the law enforcement activities of the Department of Justice or

An "affiliate" of a supplier whom A.I.D. proposes to debar or has already debarred shall mean:

(a) As between business firms.

(1) Any subsidiary firm in which the supplier holds a beneficial interest which exceeds 49 percent; or

(2) Any parent firm which holds a beneficial interest in the supplier which exceeds 49 percent; or

(3) Any other subsidiary of the parent firm of the supplier if the parent firm holds a beneficial interest which exceeds 49 percent both in the supplier and in such other subsidiary;

(b) As between a supplier who is an individual and a business firm. Any firm in which:

(1) The supplier is the dominant owner or stockholder;

(2) The supplier is a director or policymaking officer; or

(3) A firm described in subparagraph (1) or (2) of this paragraph holds a beneficial interest which exceeds 49 percent.

Subpart D-Procedures for Notice and Hearing

§ 208.12 Requirement for Notice and Hearing.

(a) Suspension of a supplier or of an affiliated firm shall be preceded by notice as provided in § 208.13 (a).

(b) Debarment of a supplier or of an affiliated firm shall be preceded:

(1) By suspension, if appropriate; and (2) By notice as provided in § 208.14 and, if appropriate, as provided also in § 208.15; and

(3) Except as provided in § 208.18 by an opportunity to appear in an adversary hearing and to contest the proposed debarment.

(c) The Administrator determines that the security interests of the United States override the interest of the supplier in an adversary hearing; or

(d) The supplier has been debarred by another federal agency and:

(1) Such debarment order was issued in substantial conformity with the concepts of notice and hearing set forth in § 208.12 (b); and

(2) Opportunity is given to affected persons to explain why the debarment should not be extended in whole or in part to A.I.D.-financed contracts for the supply of commodities or commodity-related services.

§ 208.19 Date of the hearing.

Unless the Administrator determines that for good cause shown additional time should be granted, a hearing shall be instituted within twenty days after receipt of a request from an affected person for a hearing in response to the notice described in § 208.14.

§ 208.20 Hearing Examiner.

(a) The hearing shall be conducted before an impartial hearing examiner designated by the Administrator.

(b) The Administrator shall not be limited in the choice of a hearing examiner to persons employed by A.I.D. or by any other agency of the United States Government.

§ 208.21 Report to the Administrator.

The hearing examiner shall submit to the Administrator written findings based upon the record established during the hearing and recommendations concerning the proposed debarment based upon these findings.