Photo of Jason CrawfordPhoto of Laura J. Mitchell Baker

The suspension and debarment regulations at Federal Acquisition Regulation (FAR) Subpart 9.4 are focused on the present responsibility of a contractor.  Yet, the records of past, inactive exclusions are available for public view in perpetuity on the System for Award Management website (SAM.gov).   In a recent article (linked here) published in BNA’s Federal Contracts Report, C&M attorneys explore this important issue.

As discussed in this article, these past records on SAM.gov implicate the present liberty interests of contractors.  Because past exclusions on SAM.gov may be accessed by anyone, contractors are facing more questions than ever about their past exclusions from outside of the federal government.  Many state and local procurement agencies as well as banks and financial institutions are taking the time to review SAM.gov before granting opportunities or financial assistance to individuals and companies.  Accordingly, the intent of FAR Subpart 9.4 is stretching far beyond its purpose, which is to prevent contractors from receiving new contracts or federal financial assistance if they are not “presently responsible.”  “Present responsibility” is not defined in FAR subpart 9.4, but this subpart explicitly states that exclusions do not exist to punish contractors for past misdeeds.  Thus, it may be only a matter of time until a contractor prevails on a due process challenge to SAM.gov archives, as the reputational harm of these records continues to grow. 

 

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Photo of Jason Crawford Jason Crawford

When facing government investigations or high stakes litigation, clients trust Jason Crawford to evaluate allegations, identify risks, and formulate strategies to achieve the appropriate resolution. Jason advises and advocates for government contractors and companies from regulated industries in matters involving civil, criminal, and…

When facing government investigations or high stakes litigation, clients trust Jason Crawford to evaluate allegations, identify risks, and formulate strategies to achieve the appropriate resolution. Jason advises and advocates for government contractors and companies from regulated industries in matters involving civil, criminal, and administrative enforcement, with a particular focus on the False Claims Act (FCA).

As a litigator, Jason has defended government contractors, drug manufacturers, grant recipients, health care companies, importers, and construction companies sued under the FCA by whistleblowers and the Department of Justice (DOJ) in federal courts throughout the country. He also helps clients conduct complex internal investigations and respond strategically to Office of Inspectors General inquiries, grand jury investigations, search warrants, and civil investigative demands.

Jason previously served as a DOJ Trial Attorney in the Civil Division, Fraud Section where he investigated and litigated FCA cases involving government contractors, importers, and health care companies. He also previously worked with the U.S. Attorney’s Office for the District of Columbia where he prosecuted federal criminal cases.

A recognized thought leader on FCA developments, Jason has written and presented extensively on the fraud statute, and he is a co-host of the Let’s Talk FCA podcast.

Photo of Laura J. Mitchell Baker Laura J. Mitchell Baker

Laura J. Mitchell Baker is a counsel with Crowell & Moring’s Government Contracts Group in the firm’s Washington, D.C. office.

Laura represents government contractors in litigation and administrative matters, including contract disputes with state and federal entities, suspension and debarment proceedings, mandatory disclosures…

Laura J. Mitchell Baker is a counsel with Crowell & Moring’s Government Contracts Group in the firm’s Washington, D.C. office.

Laura represents government contractors in litigation and administrative matters, including contract disputes with state and federal entities, suspension and debarment proceedings, mandatory disclosures to the government, prime-sub disputes, and False Claims Act investigations. Her practice also includes counseling on federal, state, and local government contracts, government contracts due diligence, and regulatory and compliance matters, as well as conducting internal investigations.