The annual Interagency Suspension and Debarment Committee (ISDC) recently issued its annual report to Congress. The report, found here, contains details describing improvements to the federal suspension and debarment process and a summary of each agency’s suspension and debarment activities in Fiscal Year 2019. Throughout FY2019, the ISDC pursued a strengthened understanding and awareness
Suspension and Debarments on the Rise and Likely to Increase Further, ISDC Reports to Congress
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 FY2012 to 4,842 in FY2013. The number of case referrals to an agency’s Suspension and Debarment Officer (“SDO”) also increased from 3,700 in FY12 to 3,942 in FY13; and the number of agencies’ declinations to pursue action decreased from 200 to 154. While the trends observed in the report indicate that some agencies are making a greater effort to enhance the transparency and due process in suspension and debarment proceedings, other trends indicate that the process is potentially being used as a punitive measure.
Section 873(a)(7) of the Duncan Hunter National Defense Authorization Act for FY2009 requires the ISDC to annually provide a report of various suspension and debarment-related updates to Congress, including: (1) progress and efforts to improve the suspension and debarment system, and (2) each ISDC agency’s activities and accomplishments in the government-wide debarment system. The report focused particularly on the activities of defense agencies, as many of them “have more mature suspension and debarment programs.”…
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Increased Debarment for Small Business Misrepresentations?
Section 1683 of the 2013 National Defense Authorization Act, H.R. 4310, as approved last week by the House Committee on Armed Services, proposes an amendment to the Small Business Act to clarify that misrepresentation as to small business status in order to obtain certain prime contracts or subcontracts is an independent basis for suspension …
Rehabilitation Or Punishment? — The Evolution of Suspension and 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 2012 legislation and proposed legislation, however, suggest a punitive purpose for suspension and debarment, replacing discretion with mandatory outcomes.
The FAR describes the policy of suspension and debarment in subpart 9.402. Agencies are to do business “with responsible contractors only.” Using discretion, agencies are to suspend or debar to protect the government’s interest in contracting with responsible contractors. Because of the “serious nature of debarment and suspension,” it is a tool that should be used “only in the public interest for the Government’s protection and not for purposes of punishment.” FAR 9.402(a)-(b). It is the SDO’s responsibility to assess whether suspension or debarment is in the government’s interest—the mere existence of grounds for suspension or debarment does not require suspension or debarment. FAR 9.406-1(a); 9.407-1(b)(2).
Rather, the SDO is encouraged to consider a list of contractor mitigating factors, many remedial in nature, before imposing suspension or debarment. Various of the remedial actions (including internal disciplinary action, enhanced review and control procedures and training programs, and management recognition of the seriousness of the misconduct) are best characterized as a contractor’s rehabilitation to status as a responsible contractor. FAR 9.406-1(a); 9.407-1(b)(2). Once a contractor returns to being presently responsible, it may continue to do business with the government. Penalties for contractor misdeeds may be pursued instead through various remedies available to the Department of Justice, such as the False Claims Act or Foreign Corrupt Practices Act. (For a discussion of FY 2011 DoJ Fraud and False Claims recoveries, refer to an earlier post).
In contrast, recent legislation—and proposed legislation—paints a black-and-white, punitive role for suspension and debarment. The Consolidated Appropriations Act of 2012 (Pub. L. 112-74, Dec. 23, 2011), for example, prevents agencies from funding contracts, agreements, grants, or loans to companies convicted of a felony crime of which the agency is aware unless the agency affirmatively considers the company for suspension and debarment and determines that no further action is necessary. In certain divisions of the Act, the funding prohibition extends to convictions of an agent of the company. (For more details, refer to earlier posts (1/18/12, 2/23/12)). This law also raises questions about the role and authority of the lead agency if every agency must make these affirmative findings for each new contract award and risks doing so in an inconsistent manner.…
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