This week’s episode covers SAM news, OTA news, and proposed rules, and is hosted by partner Peter Eyre. Crowell & Moring’s “Fastest 5 Minutes” is a biweekly podcast that provides a brief summary of significant government contracts legal and regulatory developments that no government contracts lawyer or executive should be without.
The General Services Administration’s (GSA) System for Award Management (SAM) announced its role in an ongoing Inspector General Investigation into alleged, third party fraudulent activity in SAM.
GSA suspects that the alleged fraudulent activity impacted only a limited number of entities. GSA has since notified the affected entities, and deactivated their SAM registrations. GSA also required these entities to validate and confirm their registration and bank account information in SAM before reactivating their SAM registrations.
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.
On July 29, 2012, the government launched the System for Award Management, known as SAM, which consolidated the Central Contractor Registration (CCR), the Online Representations and Certifications Application (ORCA), and the Excluded Parties List System (EPLS). CCR and ORCA are no longer accepting new or updated submissions, so contractors may be particularly interested in exploring the SAM User’s Guide to learn how to submit and revise information in this new system.
Not only does SAM look very different than CCR and ORCA, but the integration of multiple systems is going to take some getting used to. Contractors should not wait until the renewal deadline to learn how to use the system. This migration from CCR and ORCA to a single system may also provide contractors with an opportunity to examine its approach to these disclosures. Key questions include: Does my company have more registrations than it needs? Can I consolidate registrations? What steps is my company taking before making certifications that, if inaccurate, can lead to suspension, violations of the civil False Claims Act, or worse? How is my company coordinating submissions on an enterprise level to ensure consistency and accuracy?