Crowell & Moring is hosting Government Contracts 101 in our Washington, D.C., office on Thursday, October 26, 2017. This all-day event will last from 8:30 a.m. to 6:30 p.m. at 1001 Pennsylvania Ave, N.W., and provide an overview of the full scope of issues that government contractors face on a daily basis. We will cover
Suspension and debarment practice in 2017 is very different than it was just five or 10 years ago, and it continues to evolve. Historically active programs, such as the Department of the Air Force, show few actions initiated in the last three months, while the Environmental Protection Agency has been heavily involved in excluding contractors and awardees. Awareness of the current activity level and preferences of relevant agency suspension and debarment offices is one key to successfully managing your relationship with key federal agencies. But successfully navigating the current suspension/debarment landscape is often more complicated than a single agency analysis.
Continue Reading Not Your Grandfather’s Suspension & Debarment: How Contractors Can Prepare For and Defend Against Today’s Exclusions
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 businesses excluded by the Department of Defense in Fiscal Year 2016 were small businesses. In this blog post we discuss the current counting method used by the government, and present a revised counting method using recently completed Fiscal Year 2016 exclusion statistics to understand the current state of the government’s suspension and debarment system in a more nuanced way.
Current Counting Method
The statistics reported by the Interagency Suspension and Debarment Committee (ISDC) in the annual ISDC Report cover only total numbers of suspensions, total proposed debarments, and total debarments. This presentation could easily confuse readers because the aggregated data conceivably “triple counts” exclusions in a given year. For example, a single individual or company may be suspended, proposed for debarment, and debarred in a given year and the ISDC Report would count that as three (3) separate actions.…
Continue Reading State of Suspension/Debarment: FY2016 Statistics and the Impact on Small Businesses
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 final rule adopts an interim rule without change, which amends the FAR to establish the following representation and certification requirements:
- Representation (FAR 52.209-11): Any corporation responding to a federal solicitation must represent whether it: (1) has any unpaid federal tax liability that has been assessed and is not being appealed or paid in a timely manner; or (2) has a felony conviction for a violation under any federal law within the preceding 24 months. There is no de minimus amount for reporting tax delinquencies. Consistent with the Consolidated and Further Continuing Appropriation Acts, an affirmative response to either prong would create an automatic exclusion that precludes the award of federal contracts in a “shoot first, ask questions later” fashion.
- Certification (FAR 52.209-12): Corporate offerors must certify to tax matters contained in FAR 52.209-12(b) when responding to certain solicitations where the resultant contract (including options) may have a value greater than $5 million. If applicable, contractors must ensure that their certifications are accurate; otherwise additional liability could arise for the submission of false statements.
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 …
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:
The US District Court for the District of Columbia has just published an order ending IRD’s suspension, and that the suspension was void ab initio (as if it never happened). This is a tremendous development, as void ab initio is an unique remedy reserved for truly egregious conduct and the ruling erases the suspension from…
Devex story: https://www.devex.com/news/usaid-lifts-ird-s-suspension-says-change-is-on-the-way-86406
PubKLaw initial coverage: https://www.pubklaw.com/usaid-lifts-suspension-changes-policy-after-ird-lawsuit/
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…
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…