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Category Archives: Suspension & Debarment

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State of Suspension/Debarment: FY2016 Statistics and the Impact on Small Businesses

Posted in Suspension & Debarment
Changes in suspension and debarment data reported by the government can provide the American public with substantially more insight into the types of entities (and individuals) excluded through suspensions, proposed debarments, and debarments, including that the overwhelming majority of excluded companies are small businesses.  These changes likely show that more than 90 percent of the… Continue Reading

Tough (Tax) Break: Federal Tax Delinquency and Felony Convictions Could Bar Corporations from Contract Award

Posted in Suspension & Debarment
When assessing whether a contractor is eligible for award, contracting officers are required to conduct a meaningful present responsibility determination using the factors contained in FAR 9.1. However, a final rule issued by the FAR Council on September 30, 2016 has inserted a wild card into the process—the agency suspension and debarment official (SDO). The… Continue Reading

C&M Publishes Article in BNA Federal Contracts Report on Whether the Exclusion Archives on SAM.gov Violate Contractors’ Liberty Interests

Posted in Suspension & Debarment
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,… Continue Reading

Open season on debarments in federal court?

Posted in Suspension & Debarment
LAW360 is reporting here (subscription required) that the VA was recently sued for failing to consider mitigation, remediation and separation of affiliation arising in a suspension matter. The suit also challenges the SDO’s impartiality as a member of the acquisition chain with an IG member also on the debarment committee. Some quick analysis: 1) The… Continue Reading

*Breaking* USAID terminates IRD suspension and commits to re-reviewing the record

Posted in Suspension & Debarment
In a fascinating development, yesterday’s filing by DoJ in the IRD APA suit to enjoin its suspension announced: 1) that the IRD suspension had been lifted temporarily; 2) that the USAID SDO would move to a different location within the agency; and, 3) that the full record (presumably wtih new mitigation material) will be examined… Continue Reading

Quoted in Devex re IRD suspension lawsuit

Posted in Suspension & Debarment
I had the good fortune to speak with Molly Anders (twitter https://twitter.com/mollyanders_dev) at Devex, a publication focused on international development, concerning IRD’s APA case seeking to enjoin its suspension by USAID. The focus of the discussion is, if what IRD says in its suit is true, does the company have a chance at overturning its… Continue Reading

The biggest danger to contractors/awardees isn’t debarment, it’s debarment journalism

Posted in Suspension & Debarment
Forbes published an article entitled “Is BP Too Big to Punish” on August 31, 2014 with a simple thesis — BP hasn’t been punished and isn’t paying enough for the Deepwater Horizon blowout.  The article also covers debarment — as punishment of course, never mind that isn’t the intent of debarment — and wonders briefly why large… Continue Reading

Debarments Coming for Wage/Hour Violations? Executive Order on the Way.

Posted in Suspension & Debarment
The New York Times just reported that President Obama will sign an Executive Order requiring companies to disclose wage and hour law violations over the previous three years, and will then encourage agencies not to contract with companies that violate these laws. This likely means that the online representations and certifications that contractors complete through… Continue Reading

GAO’s latest on suspension and debarment

Posted in Suspension & Debarment
GAO’s latest on suspension and debarment GAO’s latest is a follow up on an older report from a few years ago showing progress in overall suspension/debarment procedures, resources and information sharing at Commerce, HHS, DoJ, State, Treasury and FEMA.  It’s a good study in the lead time required to plus up government programs and reflect… Continue Reading

Suspension and Debarments on the Rise and Likely to Increase Further, ISDC Reports to Congress

Posted in Suspension & Debarment
On March 5, the Interagency Suspension and Debarment Committee (“ISDC”) released a consolidated report to Congress on suspension and debarment developments for FY12 and FY13. Issued in the face of continued legislative pressure to utilize suspension and debarment, the report documents an overall rise in the number of suspensions and debarments – from 4,639 in… Continue Reading

Predicting Suspension and Debarment Trends and Implications for Contractors

Posted in Suspension & Debarment
As published in LAW360, here:  http://www.law360.com/articles/511084/a-false-sense-of-security-from-less-suspension-debarment A False Sense Of Security From Less Suspension, Debarment We are heading for a period of decreased suspension and debarment activity. I don’t mean the exclusions of individuals after mandatory disclosures, immigration violations or following news stories. Those will continue. I mean agency-developed, field-referred cases that evolve through partnerships… Continue Reading

Eleventh Circuit Allows Suspension of Affiliates To Exceed 18 Months

Posted in Suspension & Debarment
In Agility Def. & Gov’t Servs. v. Dep’t of Def., the Eleventh Circuit reversed an Alabama district court ruling and held that under the Federal Acquisition Regulation (FAR), when the government suspends a contractor, it may suspend affiliates of that contractor for more than 18 months based solely on its affiliation with the contractor as… Continue Reading

OPM Issues Notice of Written Suspension and Debarment Policy

Posted in Suspension & Debarment
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… Continue Reading

C&M Lawyers Conduct Live Webinar on Suspension and Debarment on Thursday, August 9

Posted in Suspension & Debarment
  On Thursday, August 9, 2012 at 1:00 p.m. (Eastern time), Crowell & Moring government contracts attorneys Richard Arnholt and Alexina Jackson will conduct a webinar entitled “Suspension and Debarment: Increased Enforcement Calls for Increased Attention to Compliance” in conjunction with L2 Federal Resources. During this 90-minute webinar, C&M’s experts will provide an overview of… Continue Reading

DOJ IG Notes Issues With Implementation of Statutory Debarment Authorities

Posted in Suspension & Debarment
In a June 2012 audit report, the Department of Justice Inspector General notes widespread problems with DOJ’s administration of two types of statutory debarments. The lengthy report, along with the responses from various DOJ divisions, highlight the continued attention being paid to suspension and debarment by federal agencies and the significant efforts being made to… Continue Reading

Rehabilitation Or Punishment? — The Evolution of Suspension and Debarment

Posted in Suspension & Debarment
Recent legislative trends appear to be squarely at odds with the stated purpose of suspension and debarment. The Federal Acquisition Regulation (FAR) describes a process focusing on “present responsibility,” an express acknowledgement of the potential for contractor rehabilitation, providing discretion to the suspension and debarment official (SDO) to determine the proper outcome of a contractor’s misconduct. Fiscal Year… Continue Reading

Suspension and Debarment – Why can’t you be more like the Air Force?

Posted in Suspension & Debarment
Although not conveyed in those exact words, that sentiment was expressed at several points by Chairman McCaskill during a hearing on April 17 before the Senate Ad Hoc Subcommittee on Contracting Oversight of the Homeland Security and Governmental Affairs Committee on The Comprehensive Contingency Contracting Reform Act of 2012 (S. 2139). Why? Because the Air Force suspends and debars more… Continue Reading

Attempting to Broaden the Mandatory Suspension & Debarment Net: McCaskill – Webb Senate Bill 2139

Posted in Suspension & Debarment
In January and February, my colleague, Bob Wagman, wrote about complications related to provisions on suspension and debarment in the Consolidated Appropriations Act of 2012 (Pub. L. 112-74) (1/18/12) (2/23/12). The provisions in the 2012 Appropriations Act were all premised on the conviction of a corporation (or in certain provisions, its officer or agent) of a felony criminal… Continue Reading