As former federal officials, our attorneys are experienced in the Suspension and Debarment process. Suspension and Debarment can have a cataclysmic impact on a company and/or individual. An effective and comprehensive response to this proposed action goes without saying. There is no substitute for knowledge and experience in this area of administrative law.
What is Suspension and Debarment?
The Suspension and Debarment process can result in a company or individual being prohibited from contracting with the Federal Government for a period of time or even permanently. Suspensions, Proposals for Debarment, and Debarments are the most widely known tools as these actions are visible to the public via SAM (formerly EPLS). However, Hearings, Show Cause Letters, Requests for Information, which are not visible to the public, are also used to do the same. Terminations of Review are also important as they inform the contractor under review that a determination has been made that the contractor is presently responsible and can continue conducting business with the Government.
What is the impact of Suspension or Debarment?
- Your name will be published as ineligible on the System for Award Management (SAM), a GSA administered website (http://www.sam.gov). Your suspension is effective throughout the Executive Branch of the Federal government and applies to procurement and non-procurement programs.
- Offers will not be solicited from, contracts will not be awarded to, existing contracts will not be renewed or otherwise extended for, and subcontracts requiring Government approval will not be approved for you by any agency in the Executive Branch of the Federal government, unless the head of the agency taking the contracting action or a designee states, in writing, the compelling reason for continued business dealings between you and the agency.
- You may not conduct business with the Federal government as an agent or representative of other contractors or of participants in Federal assistance programs, nor may you act as an individual surety to other Government contractors.
- No Government contractor may award to you a subcontract equal to or in excess of $30,000 unless there is a compelling reason to do so and the contractor first notifies the contracting officer and further complies with the provisions of FAR 9.405-2(b).
- No agency in the Executive Branch shall enter into, renew or extend a primary or lower-tier covered transaction in which you are either a participant or principal unless the head of the agency grants an exception in writing. (Covered transactions defined at 41 C.F.R. Section 105-68).
- Your affiliation with, or relationship to, any organization doing business with the Government will be carefully examined to determine the impact of those ties on the responsibility of that organization as a Government contractor or subcontractor.
Who can be Suspended or Debarred?
The Federal Acquisition Regulation (FAR) allows for contractors to be suspended or debarred. A contractor is any individual or organization that:
- Directly or indirectly submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded, a Government contract or subcontract; or
- Conducts business, or reasonably may be expected to conduct business, with the Government as an agent or representative of another contractor
- Those directly and indirectly involved in the wrongdoing or alleged wrongdoing
What are the causes for Suspension or Debarment?
- Commission of fraud, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal laws, receiving stolen property, an unfair trade practice
- Violation of antitrust statutes
- Willful, or a history of, failure to perform
- Violation of the Drug-Free Workplace Act
- Delinquent Federal taxes (more than $3,000)
- Knowing failure to disclose violation of criminal law
- Any other cause that affects present responsibility
What is the Suspension & Debarment process?
- Cases are referred to the SDO from many sources, including Office of Inspector General, voluntary & mandatory disclosures
- SDO makes a decision based on the referral
- Contractors are immediately listed on SAM (www.sam.gov) if they are suspended or proposed for debarment
- When suspended proposed for debarment, contractors may submit matters in opposition demonstrating present responsibility
- If requested, SDO may meet with contractor
- If additional facts are presented, SDO makes a final decision which is provided to the contractor
- For more details on GSA’s Suspension & Debarment process, see Trainings and Presentations
What are my options after receiving a Suspension or Debarment letter?
Contractors receiving a Suspension or Debarment letter have an opportunity to respond before the SDO makes a final decision. If the contractor chooses to respond, its focus should be on its present responsibility to contract with the Federal Government. The contractor may also request to meet with the SDO to discuss its present responsibility in person.
The contractor’s response provides the SDO with more information before making a final decision.
What is the difference between Suspension and Debarment?
- Immediate Need
- A temporary measure; there is a twelve month limit
- Usually used pending the completion of investigation or legal proceedings
- Based upon adequate evidence, usually an indictment
- Usually three years in length
- Based upon a preponderance of the evidence, usually a conviction
Are there any options besides Suspension or Debarment?
The SDO may decide to take no action against a contractor whom she feels is presently responsible. If the SDO feels that she needs further information before making a decision, she has the option to send the contractor a Request for Information letter or a Show Cause Letter.
Requests for Information do not immediately result in ineligibility and are used to gather information. Show Cause Letters also do not immediately result in ineligibility and are used to gather current information and learn the contractor’s position. Show Cause Letters are discretionary, and are used when cause for debarment exists, but the agency wants to provide the contractor an opportunity to present information before taking action.
The SDO may also decide to enter into an Administrative Compliance Agreement. These agreements document remedial measures taken to prevent reoccurrence and often include outside and independent review/audits by consultants. They generally last three years. Current Administrative Compliance Agreements can be found at https://www.fapiis.gov/fapiis/index.js