Guidance on Reviewing the Federal Exclusion Records and Verifying Eligibility
2809/3100/3180/3200/3400/3500 (HQ-310/320/330) P
United States Department of the Interior
BUREAU OF LAND MANAGEMENT
National Headquarters
Washington, DC 20240
https://www.blm.gov
June 8, 2023
Supersedes IM 2022-042
In Reply Refer To:
2809/3100/3180/3200/3400/3500 (HQ-310/320/330) P
EMS TRANSMISSION 06/13/2023
Instruction Memorandum No. 2023-048
Expires: 09/30/2026
To: All Field Office Officials
From: Assistant Director, Energy, Minerals, and Realty Management
Subject: Guidance on Reviewing the Federal Exclusion Records and Verifying Eligibility
Program Area: Federal fluid and solid minerals leasing programs.
Purpose: The purpose of this Instruction Memorandum (IM) and accompanying attachment is to supply background information and direction about how to verify whether the Federal Government has suspended, debarred, voluntarily excluded, or disqualified an entity or individual from receiving Federal contracts or awards. This direction should be followed before the Bureau of Land Management (BLM) issues any lease or other agreement for fluid or solid minerals[1] to any entity or individual. This process of verifying eligibility should also be followed for surety companies listed on surety bonds submitted for BLM acceptance.
Suspensions and debarments are administrative remedies used to prevent parties who are “not presently responsible” from being eligible to enter a contract with or receive awards from the government. “Not presently responsible” means that a party has engaged in criminal or other improper conduct or showed poor performance of such a compelling and serious nature that it would lead one to question their honesty, ethics, or competence. The Office of Management and Budget Guidelines to Agencies on Governmentwide Debarment and Suspension at 2 C.F.R. Part 180, which are implemented and adopted by the Department of the Interior (DOI) at 2 C.F.R. Part 1400, establish the suspension and debarment framework for nonprocurement actions.
Administrative or Mission Related: Mission Related.
Policy/Action: Before issuing a lease, approving an agreement, accepting a surety bond, approving a lease reinstatement, or approving an assignment or transfer of interest in a lease or an agreement, the BLM must first verify whether the Federal Government has excluded or disqualified the entity or individual by recording them in the System for Award Management (SAM.gov). This verification process applies to surety companies before accepting a surety bond. The BLM staff should conduct a comprehensive review of SAM.gov by searching through both the Exclusions records and the Responsibility/Qualification records under Entity Information.
To search SAM.gov, the BLM staff should set up an account in SAM.gov through registration on the website. The SAM.gov has a list of frequently asked questions to assist with registration and searching the exclusions and the responsibility/qualification records.
If the Federal Government has suspended, debarred, voluntarily excluded, or disqualified an entity, individual, and/or its principal/representative with an exclusions record, then the BLM must deny or refuse to accept applications for the issuance, assignment, or transfer of a lease, agreement, surety bond, or other nonprocurement award, to that entity or individual.
If the responsibility/qualification record indicates (1) a conviction within the last two years or (2) a fully adjudicated tax liability is still outstanding and not settled, contact the DOI Office of Inspector General’s Administrative Remedies Division (ARD) at OIG_Debarment@doioig.gov. The ARD will conduct a review and coordinate with the Suspending and Debarring Official. The BLM also should consult with the applicable Office of the Solicitor (SOL) regarding the appropriate action to take before accepting or approving the issuance, assignment, or transfer of a lease, agreement, surety bond, or other nonprocurement award.
The Mineral & Land Records System (MLRS) allows tracking and documenting verification of eligibility. The Verification of Eligibility Checklist (Attachment 1) is a template checklist that each office needs to complete for the entity receiving an interest in a covered nonprocurement transaction[2] and upload the checklist into MLRS.[3] Nonprocurement transactions (and the entities that the BLM should verify are eligible) include:
- Issuance of a fluid mineral lease (lessee, record title owner, and operating rights owner);
- Approval of a fluid mineral agreement (operator, co-operator, and suboperator);
- Issuance of a solid mineral lease (lessee);
- Acceptance of a surety bond, including surety bonds for right-of-way actions (surety company);
- Approval of reinstatement or renewal of any of the above cases; and,
- A transfer of interest or ownership in any of the above cases (e.g., new lessee, record title owner, operating rights owner, operator, surety company, etc.).
Oversight
The BLM headquarters will complete an annual oversight review of BLM’s verification of eligibility process for the identified nonprocurement transactions in March of each year and report these findings to senior leadership and state office leadership.
Federally Excluded Entity with a Federal Lease or Agreement
Whenever a BLM office identifies a Federal lease or agreement with an entity, which the Federal Government suspended, debarred, voluntarily excluded, or disqualified, the office will notify the Headquarters’ Senior Mineral Leasing Specialist in the Division of Fluid Minerals. The Senior Mineral Leasing Specialist will work with the DOI’s Suspending and Debarring Official, SOL, and the BLM office to take appropriate action with respect to the entity’s interest in a Federal lease or agreement.
Coordination for Potential Suspension or Debarment Actions
In situations where the BLM identifies potential parties for suspension or debarment consideration, the BLM should make a referral to the Office of Inspector General (OIG) Administrative Remedies Division (ARD) at oig_debarment@doioig.gov and provide evidence of the entity’s offense or serious poor performance. Even in the absence of an indictment or conviction, ARD may consider and refer cases to the Suspending and Debarring Official for a suspension, when there is adequate evidence and immediate action is necessary to protect the Government’s interest, or a debarment with a preponderance of evidence.
Additional Disqualifications
In addition to the Federal exclusion records, the BLM also maintains a list of entities that are in noncompliance with the reclamation requirements of Section 17(g) of the Mineral Leasing Act for oil and gas leases (see 30 U.S.C. § 226(g) and 43 C.F.R. § 3102.5 1(e)). Appendix 4 in the H-3120-1, Competitive Leases (P) handbook, provides guidance related to the list of entities in noncompliance with the reclamation requirements of Section 17(g) of the Mineral Leasing Act.
Timeframe: This policy is effective immediately.
Budget Impact: There will be an increase in demand on staff time with the implementation of the verification of eligibility checklist process and data entry into MLRS. All BLM offices can carry out this policy.
Background: On December 12, 2022, the Federal Government integrated Federal Awardee Performance and Integrity Information System with SAM.gov. Therefore, the BLM needed to update IM 2022-042 with updated procedures for checking SAM.gov.
As a reminder, OIG issued a report entitled, The Bureau of Land Management Did Not Review the Federal Exclusions List Before Issuing Federal Mineral Leases (Report No. 2021-CR-007) on January 20, 2022. The report presented the results of the OIG’s inspection of the BLM’s compliance with suspension and debarment regulations as they relate to mineral leasing programs. The OIG found that the BLM did not review the Federal exclusions list to determine whether the Federal Government suspended or debarred the mineral lease recipients and, further, did not have policies and procedures in place to require leasing staff to review the Federal exclusions list before issuing Federal mineral leases. The OIG recommended:
- BLM immediately require leasing staff to review the Federal exclusions list before issuing, transferring, or assigning leases and to document that review in the lease file.
- BLM develop and implement an oversight mechanism that ensures that the leasing staff reviews the Federal exclusions list and documents the review.
- BLM develop and implement policies in compliance with DOI-AAAP-0039 requiring leasing staff to document the review of the Federal exclusions list before issuing, transferring, or assigning leases.
- BLM update applicable manuals to detail the processes for documenting the review of the Federal exclusions list for all leasing actions.
The BLM resolved recommendations one through three with the issuance of IM 2022-042. The BLM issued this IM to ensure its guidance on this review is current with changes made to SAM.gov. The BLM will resolve recommendation four as part of its efforts to update its handbooks related to these and other processes.
Manual/ Handbook Sections Affected: H-3101-1, Issuance of Leases (Rel. 3-308, 2/2/1996); MS-3101, Issuance of Leases (Rel. 3-86, 2/2/1996); H-3104-1, Bonds (Rel. 3-129, 12/27/1985); H-3106-1, Transfers by Assignment, Sublease, or Otherwise (Rel. 3-295, 8/31/1994); MS-3160-9, Communitization (Rel. 3-215, 7/7/1988); MS-3160-11 Underground Storage of Natural Gas (Rel. 3-236, 2/14/1989); H-3180-1, Unitization (Rel. 3-102, 10/28/1984); H-3420-1, Competitive Coal Leasing (Rel. 3-235, 4/20/1989); MS-3450, Management of Existing Leases (Rel. 3-64, 2/10/1983); MS-3474, Bonds (Rel. 3-194, 2/18/1988); and H-3510-1, Phosphate Leasing Handbook (Rel. 3-259, 10/27/1989).
Coordination: The Directorate of Energy, Minerals, and Realty Management coordinated internally with State Office Deputy State Directors and with the Solicitor’s Office and the Department of the Interior’s Suspending and Debarring Official on this policy.
Contact: If you have questions or concerns about this IM, please contact Matthew Warren, Acting Division Chief, HQ-310, at 505-216-8832 (mwarren@blm.gov). For program questions, your staff may contact Peter Cowan, Senior Mineral Leasing Specialist, BLM Headquarters Division of Fluid Minerals, at picowan@blm.gov or 720-838-1641.
Signed by: Authenticated by:
Benjamin E. Gruber Robert M. Williams
Acting, Assistant Director Division of Regulatory Affairs and Directives,(HQ-630)
Energy, Minerals, and Realty
Management
1 Attachment
1 - Verification of Eligibility Checklist (2 pp)
[1] Note that DOI's regulations at 2 C.F.R. § 1400.215(b) exclude rights-of-way and permits (such as oil and gas applications for permit to drill) from the transactions covered by this policy. See footnote 2 for additional details.
[2] Nonprocurement transactions covered by this policy include, but are not limited to: Federal acquisition of a leasehold interest or any other interest in real property; concession contracts, dispositions of Federal real and personal property and natural resources; and any other nonprocurement transaction between the Department and a person under 2 C.F.R. § 1400.970; and, grants, cooperative agreements, scholarships, fellowships, contracts of assistance, loans, loan guarantees, subsidies, insurances, payments for specified uses and donation agreements under 2 C.F.R. § 180.970.
Transactions that are not covered are listed at 2 C.F.R. §§ 1400.215 and 180.215 and include, but are not limited to: transactions entered into pursuant to Pub. L. No. 93-638; under natural resource management programs, permits, licenses, exchanges, and other acquisitions of real property, rights-of-way and easements; transactions concerning mineral patent claims entered into pursuant to 30 U.S.C. §§ 22 et seq.; water service contracts and repayment entered into pursuant to 43 U.S.C. § 485; a benefit to an individual as a personal entitlement without regard to the individual’s present responsibility (but benefits received in an individual’s business capacity are not excepted); a permit, license, certificate or similar instrument issued as a means to regulate public health, safety or the environment, unless a Federal agency specifically designates it to be a covered transaction; and, a direct award to a foreign government, a public international organization, or an entity owned in whole or in part or controlled by a foreign government.
[3] Currently, solid mineral leases and right-of-way bonds are still in LR2000. Until these leases move to MLRS, these case types do not need to complete the steps associated with MLRS.
The purpose of this Instruction Memorandum (IM) and accompanying attachment is to supply background information and direction about how to verify whether the Federal Government has suspended, debarred, voluntarily excluded, or disqualified an entity or individual from receiving Federal contracts or awards. This direction should be followed before the Bureau of Land Management (BLM) issues any lease or other agreement for fluid or solid minerals[1] to any entity or individual. This process of verifying eligibility should also be followed for surety companies listed on surety bonds submitted for BLM acceptance.
[1] Note that DOI's regulations at 2 C.F.R. § 1400.215(b) exclude rights-of-way and permits (such as oil and gas applications for permit to drill) from the transactions covered by this policy. See footnote 2 for additional details.
Mission Related.
Before issuing a lease, approving an agreement, accepting a surety bond, approving a lease reinstatement, or approving an assignment or transfer of interest in a lease or an agreement, the BLM must first verify whether the Federal Government has excluded or disqualified the entity or individual by recording them in the System for Award Management (SAM.gov). This verification process applies to surety companies before accepting a surety bond. The BLM staff should conduct a comprehensive review of SAM.gov by searching through both the Exclusions records and the Responsibility/Qualification records under Entity Information.
This policy is effective immediately.
There will be an increase in demand on staff time with the implementation of the verification of eligibility checklist process and data entry into MLRS. All BLM offices can carry out this policy.
On December 12, 2022, the Federal Government integrated Federal Awardee Performance and Integrity Information System with SAM.gov. Therefore, the BLM needed to update IM 2022-042 with updated procedures for checking SAM.gov.
H-3101-1, Issuance of Leases (Rel. 3-308, 2/2/1996); MS-3101, Issuance of Leases (Rel. 3-86, 2/2/1996); H-3104-1, Bonds (Rel. 3-129, 12/27/1985); H-3106-1, Transfers by Assignment, Sublease, or Otherwise (Rel. 3-295, 8/31/1994); MS-3160-9, Communitization (Rel. 3-215, 7/7/1988); MS-3160-11 Underground Storage of Natural Gas (Rel. 3-236, 2/14/1989); H-3180-1, Unitization (Rel. 3-102, 10/28/1984); H-3420-1, Competitive Coal Leasing (Rel. 3-235, 4/20/1989); MS-3450, Management of Existing Leases (Rel. 3-64, 2/10/1983); MS-3474, Bonds (Rel. 3-194, 2/18/1988); and H-3510-1, Phosphate Leasing Handbook (Rel. 3-259, 10/27/1989).
If you have questions or concerns about this IM, please contact Matthew Warren, Acting Division Chief, HQ-310, at 505-216-8832 (mwarren@blm.gov). For program questions, your staff may contact Peter Cowan, Senior Mineral Leasing Specialist, BLM Headquarters Division of Fluid Minerals, at picowan@blm.gov or 720-838-1641.
The Directorate of Energy, Minerals, and Realty Management coordinated internally with State Office Deputy State Directors and with the Solicitor’s Office and the Department of the Interior’s Suspending and Debarring Official on this policy.