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U.S. Department of Justice Justice Management Division Washington, (Integrated Acquisition Environment)

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Page 1 of 2
U.S. Department of Justice
Justice Management Division
______________________________________________________________________
Washington, D.C. 20530
MEMORANDUM
TO: Lee J. Lofthus
Head of Contracting Activity
FROM: Michael H. Allen
Senior Procurement Executive
SUBJECT: Request for Approval of a Class Deviation from Certain Provisions of the
Suspension and Debarment Regulations of the Federal Acquisition
Regulation (FAR)
Purpose
To assist you in rendering a decision pursuant to 48 C.F.R. §§ 1.404 & 2801.404 on a
request for a class deviation from the suspension and debarment regulations of the FAR.
Discussion
The suspension and debarment regulations, specifically 48 C.F.R. §§ 9.406-3 and 9.407-
3, currently require agencies to notify contractors of suspensions, proposed debarments or
other debarment actions via certified mail, return receipt requested. This precludes
notifications by electronic mail or any other means that might be more effective during
times such as these associated with the COVID-19 pandemic. The Justice Acquisition
Regulation (JAR) requires the Department to comply with the FAR in this respect, but
only a deviation from the FAR, not the JAR, is necessary and being requested.
The FAR contains procedures under which agencies may implement both individual and
class deviations. 48 C.F.R. §§ 1.403, 1.404. Individual deviations apply to a single
contract action, while class deviations affect more than one contract action. While I may
recommend class deviations, they must be approved by you. 48 C.F.R. §§ 1.404 &
2801.404.
According to the FAR and the JAR, before submitting a request for a class deviation to
you, I must consult with the Chairperson of the Civilian Agency Acquisition Council
(CAAC). Id. On April 1, 2020, however, the CAAC issued a letter to all Civilian
Agencies that serves as the required consultation in accordance with FAR 1.404. CAAC
Letter 2020-01 (Attached). While not self-executing, the CAAC communication allows
MICHAEL
ALLEN
Digitally signed by
MICHAEL ALLEN
Date: 2020.04.28
16:01:52 -04'00'
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Page 2 of 2
agencies to authorize a class deviation from the suspension and debarment regulations to
permit more flexibility in corresponding and communicating with contractors during the
suspension and debarment process, without having to engage in further consultation with
the CAAC. Attached to the letter, the CAAC provides pre-approved revisions to the text
of the relevant regulatory provisions. See Attachment A to CAAC Letter 2020-01.
Specifically, the CAAC’s proposed revisions, which constitute the substance of the
deviation I am requesting, allow for suspension and debarment correspondence to be sent
via methods other than certified mail, return receipt requested, including the use of
electronic mail. See Attachment A. Additionally, the proposed deviation text explicitly
allows contractors to present matters in opposition to any proposed agency action via
telephone or internet connection. Id.
These additional flexibilities will allow much more efficient communication with
contractors during this time when the more traditional means of communication via
certified mail, return receipt requested is being severely hindered by the COVID-19
pandemic. If you approve the class deviation, approved by the CAAC, I will so notify
the FAR Regulatory Secretariat, in accordance with FAR §1.404.
RECOMMENDATION: That you approve this request for a class deviation of FAR
§§ 9.406-3 and 9.407-3 as outlined in the CAAC Letter
2020-01 and its Attachment A.
APPROVE: __________________________
DISAPPROVE: _______________________
OTHER: ____________________________
Attachment
LEON
LOFTHUS
Digitally signed by LEON
LOFTHUS
Date: 2020.04.28
16:42:13 -04'00'
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Completed 26 January 2021

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