J. Catherine Kunz

On February 21, 2013, the Office of Personnel Management ("OPM") issued a notice in the Federal Register of its intent to adopt the policies and procedures set forth in the Federal Acquisition Regulation ("FAR") at Subpart 9.4 concerning debarment, suspension, and ineligibility of government contractors. Because OPM’s procurement rules are not contained in the Code of Federal Regulations, OPM proposes a new internal policy, to be titled "Contracting Policy 9.4: OPM Suspension and Debarment Program."  OPM states that it has long-maintained procedures consistent with FAR Subpart 9.4, but it is adopting this proposed policy to make clear that FAR Subpart 9.4 applies to its contracting decisions. 

Consistent with FAR Subpart 9.4, the proposed policy will provide as follows: 

  • OPM will not solicit offers from, award contracts to, or consent to subcontracts with contractors who are listed on the Excluded Parties List Systems on the System for Award Management ("SAM/EPLS"), except as otherwise provided for in FAR Subpart 9.4. 
  • If OPM debars, proposed for debarment, or suspends a contractor, OPM will list that contractor in the SAM/EPLS.  Such action will have government-wide reciprocity.
  • OPM may continue an existing contract with a contractor despite the fact that the contractor has subsequently been debarred, proposed for debarment, or suspended if it is determined in the best interest of the Government to do so.

The Director of OPM or a designee will serve as the suspension and debarment official ("SDO") for OPM.  The SDO will decide whether to solicit offers from, award contracts to, or consent to subcontracts with contractors who have been debarred, suspended, or proposed for debarment.  The SDO will also decide whether to terminate a current contract or subcontract in existence at the time the contractor was debarred, suspended, or proposed for debarment.

The OPM Contracting Policy Office will be vested with primary responsibility for investigating and referring potential debarment and suspension actions to the OPM Suspension and Debarment Committee, which will have the responsibility for reviewing and referring actions to the SDO for consideration.  The Contracting Policy Office will also be responsible for developing written procedures that address key suspension and debarment processes, including the reporting, investigation, and referral of suspension and debarment matters to the SDO and the debarment and suspension decision-making processes.

The impetus for this proposed policy is likely due, at least in part, to the heightened scrutiny that Congress, GAO, and the Inspector General ("IG") community have been placing on agencies’ suspension and debarment programs.  For example, in 2011, GAO criticized agencies for not adequately staffing the suspension and debarment function, and the Council of Inspectors General for Integrity and Efficiency urged IGs  and auditors to refer more matters to SDOs for action.  To the extent that OPM intends to bolster its suspension and debarment activities, it is prudent for it to have a written policy to follow in making its suspension and debarment decisions.  It will therefore be important for FEHBP and other OPM contractors to carefully review the proposed policy set forth in the Federal Register notice, and familiarize themselves with any subsequent written procedures OPM develops in support of its Suspension and Debarment Program Policy.

OPM will consider written comments on this proposed policy received by March 25, 2013.