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.