
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC1769f]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
                    CHAPTER 13--SCHOOL LUNCH PROGRAMS
 
Sec. 1769f. Duties of Secretary relating to nonprocurement 
        debarment
        

(a) Purposes

    The purposes of this section are to promote the prevention and 
deterrence of instances of fraud, bid rigging, and other anticompetitive 
activities encountered in the procurement of products for child 
nutrition programs by--
        (1) establishing guidelines and a timetable for the Secretary to 
    initiate debarment proceedings, as well as establishing mandatory 
    debarment periods; and
        (2) providing training, technical advice, and guidance in 
    identifying and preventing the activities.

(b) Definitions

    As used in this section:

                     (1) Child nutrition program

        The term ``child nutrition program'' means--
            (A) the school lunch program established under this chapter;
            (B) the summer food service program for children established 
        under section 1761 of this title;
            (C) the child and adult care food program established under 
        section 1766 of this title;
            (D) the special milk program established under section 1772 
        of this title;
            (E) the school breakfast program established under section 
        1773 of this title; and
            (F) the special supplemental nutrition program for women, 
        infants, and children authorized under section 1786 of this 
        title.

                           (2) Contractor

        The term ``contractor'' means a person that contracts with a 
    State, an agency of a State, or a local agency to provide goods or 
    services in relation to the participation of a local agency in a 
    child nutrition program.

                          (3) Local agency

        The term ``local agency'' means a school, school food authority, 
    child care center, sponsoring organization, or other entity 
    authorized to operate a child nutrition program at the local level.

                    (4) Nonprocurement debarment

        The term ``nonprocurement debarment'' means an action to bar a 
    person from programs and activities involving Federal financial and 
    nonfinancial assistance, but not including Federal procurement 
    programs and activities.

                             (5) Person

        The term ``person'' means any individual, corporation, 
    partnership, association, cooperative, or other legal entity, 
    however organized.

(c) Assistance to identify and prevent fraud and anticompetitive 
        activities

    The Secretary shall--
        (1) in cooperation with any other appropriate individual, 
    organization, or agency, provide advice, training, technical 
    assistance, and guidance (which may include awareness training, 
    training films, and troubleshooting advice) to representatives of 
    States and local agencies regarding means of identifying and 
    preventing fraud and anticompetitive activities relating to the 
    provision of goods or services in conjunction with the participation 
    of a local agency in a child nutrition program; and
        (2) provide information to, and fully cooperate with, the 
    Attorney General and State attorneys general regarding 
    investigations of fraud and anticompetitive activities relating to 
    the provision of goods or services in conjunction with the 
    participation of a local agency in a child nutrition program.

(d) Nonprocurement debarment

                           (1) In general

        Except as provided in paragraph (3) and subsection (e) of this 
    section, not later than 180 days after notification of the 
    occurrence of a cause for debarment described in paragraph (2), the 
    Secretary shall initiate nonprocurement debarment proceedings 
    against the contractor who has committed the cause for debarment.

                      (2) Causes for debarment

        Actions requiring initiation of nonprocurement debarment 
    pursuant to paragraph (1) shall include a situation in which a 
    contractor is found guilty in any criminal proceeding, or found 
    liable in any civil or administrative proceeding, in connection with 
    the supplying, providing, or selling of goods or services to any 
    local agency in connection with a child nutrition program, of--
            (A) an anticompetitive activity, including bid-rigging, 
        price-fixing, the allocation of customers between competitors, 
        or other violation of Federal or State antitrust laws;
            (B) fraud, bribery, theft, forgery, or embezzlement;
            (C) knowingly receiving stolen property;
            (D) making a false claim or statement; or
            (E) any other obstruction of justice.

                            (3) Exception

        If the Secretary determines that a decision on initiating 
    nonprocurement debarment proceedings cannot be made within 180 days 
    after notification of the occurrence of a cause for debarment 
    described in paragraph (2) because of the need to further 
    investigate matters relating to the possible debarment, the 
    Secretary may have such additional time as the Secretary considers 
    necessary to make a decision, but not to exceed an additional 180 
    days.

       (4) Mandatory child nutrition program debarment periods

        (A) In general

            Subject to the other provisions of this paragraph and 
        notwithstanding any other provision of law except subsection (e) 
        of this section, if, after deciding to initiate nonprocurement 
        debarment proceedings pursuant to paragraph (1), the Secretary 
        decides to debar a contractor, the debarment shall be for a 
        period of not less than 3 years.

        (B) Previous debarment

            If the contractor has been previously debarred pursuant to 
        nonprocurement debarment proceedings initiated pursuant to 
        paragraph (1), and the cause for debarment is described in 
        paragraph (2) based on activities that occurred subsequent to 
        the initial debarment, the debarment shall be for a period of 
        not less than 5 years.

        (C) Scope

            At a minimum, a debarment under this subsection shall serve 
        to bar the contractor for the specified period from contracting 
        to provide goods or services in conjunction with the 
        participation of a local agency in a child nutrition program.

        (D) Reversal, reduction, or exception

            Nothing in this section shall restrict the ability of the 
        Secretary to--
                (i) reverse a debarment decision;
                (ii) reduce the period or scope of a debarment;
                (iii) grant an exception permitting a debarred 
            contractor to participate in a particular contract to 
            provide goods or services; or
                (iv) otherwise settle a debarment action at any time;

        in conjunction with the participation of a local agency in a 
        child nutrition program, if the Secretary determines there is 
        good cause for the action, after taking into account factors set 
        forth in paragraphs (1) through (6) of subsection (e) of this 
        section.

                           (5) Information

        On request, the Secretary shall present to the Committee on 
    Education and Labor, and the Committee on Agriculture, of the House 
    of Representatives and the Committee on Agriculture, Nutrition, and 
    Forestry of the Senate information regarding the decisions required 
    by this subsection.

                (6) Relationship to other authorities

        A debarment imposed under this section shall not reduce or 
    diminish the authority of a Federal, State, or local government 
    agency or court to penalize, imprison, fine, suspend, debar, or take 
    other adverse action against a person in a civil, criminal, or 
    administrative proceeding.

                           (7) Regulations

        The Secretary shall issue such regulations as are necessary to 
    carry out this subsection.

(e) Mandatory debarment

    Notwithstanding any other provision of this section, the Secretary 
shall initiate nonprocurement debarment proceedings against the 
contractor (including any cooperative) who has committed the cause for 
debarment (as determined under subsection (d)(2) of this section), 
unless the action--
        (1) is likely to have a significant adverse effect on 
    competition or prices in the relevant market or nationally;
        (2) will interfere with the ability of a local agency to procure 
    a needed product for a child nutrition program;
        (3) is unfair to a person, subsidiary corporation, affiliate, 
    parent company, or local division of a corporation that is not 
    involved in the improper activity that would otherwise result in the 
    debarment;
        (4) is likely to have significant adverse economic impacts on 
    the local economy in a manner that is unfair to innocent parties;
        (5) is not justified in light of the penalties already imposed 
    on the contractor for violations relevant to the proposed debarment, 
    including any suspension or debarment arising out of the same matter 
    that is imposed by any Federal or State agency; or
        (6) is not in the public interest, or otherwise is not in the 
    interests of justice, as determined by the Secretary.

(f) Exhaustion of administrative remedies

    Prior to seeking judicial review in a court of competent 
jurisdiction, a contractor against whom a nonprocurement debarment 
proceeding has been initiated shall--
        (1) exhaust all administrative procedures prescribed by the 
    Secretary; and
        (2) receive notice of the final determination of the Secretary.

(g) Information relating to prevention and control of anticompetitive 
        activities

    On request, the Secretary shall present to the Committee on 
Education and Labor, and the Committee on Agriculture, of the House of 
Representatives and the Committee on Agriculture, Nutrition, and 
Forestry of the Senate information regarding the activities of the 
Secretary relating to anticompetitive activities, fraud, nonprocurement 
debarment, and any waiver granted by the Secretary under this section.

(June 4, 1946, ch. 281, Sec. 25, as added Pub. L. 103-448, title I, 
Sec. 122(a), Nov. 2, 1994, 108 Stat. 4727; amended Pub. L. 105-336, 
title I, Sec. 107(j)(2)(C)(ii), Oct. 31, 1998, 112 Stat. 3153.)


                               Amendments

    1998--Subsec. (b)(1)(D) to (G). Pub. L. 105-336 redesignated 
subpars. (E) to (G) as (D) to (F), respectively, and struck out former 
subpar. (D) which read as follows: ``the homeless children nutrition 
program established under section 1766b of this title;''.

                         Change of Name

    Committee on Education and Labor of House of Representatives treated 
as referring to Committee on Economic and Educational Opportunities of 
House of Representatives by section 1(a) of Pub. L. 104-14, set out as a 
note preceding section 21 of Title 2, The Congress. Committee on 
Economic and Educational Opportunities of House of Representatives 
changed to Committee on Education and the Workforce of House of 
Representatives by House Resolution No. 5, One Hundred Fifth Congress, 
Jan. 7, 1997.


                    Effective Date of 1998 Amendment

    Amendment by Pub. L. 105-336 effective July 1, 1999, see section 
107(j)(4) of Pub. L. 105-336, set out as a note under section 1761 of 
this title.


                             Effective Date

    Section effective Oct. 1, 1994, see section 401 of Pub. L. 103-448, 
set out as an Effective Date of 1994 Amendment note under section 1755 
of this title.
    Section 122(b) of Pub. L. 103-448 provided that: ``Section 25 of the 
[Richard B. Russell] National School Lunch Act [42 U.S.C. 1769f] (as 
added by subsection (a)) shall not apply to a cause for debarment as 
described in section 25(d)(2) of such Act that is based on an activity 
that took place prior to the effective date of section 25 of such Act 
[Oct. 1, 1994].''


   No Reduction in Authority of Secretary of Agriculture To Debar or 
Suspend a Person From Federal Financial and Nonfinancial Assistance and 
                                Benefits

    Section 122(c) of Pub. L. 103-448 provided that: ``The authority of 
the Secretary of Agriculture that exists on the day before the date of 
enactment of this Act [Nov. 2, 1994] to debar or suspend a person from 
Federal financial and nonfinancial assistance and benefits under Federal 
programs and activities shall not be diminished or reduced by subsection 
(a) [enacting this section] or the amendment made by subsection (a).''
