On October 17, 2022, President Biden signed the End Human Trafficking in Government Contracts Act of 2022 (“the Act”) into law, amending the 2013 National Defense Authorization Act (“2013 NDAA”) to require U.S. government agency heads to refer any suspected instances of human trafficking to the agency’s suspension and debarment official (“SDO”) for consideration and
suspension and debarment
Fastest 5 Minutes: OTAs, CHIPS, Inflation Reduction Act
This week’s episode covers a Court of Federal Claims decision holding that it could exercise jurisdiction over a challenge to an OTA award made in connection with a potential future procurement, the CHIPS and Science Act, the Inflation Reduction Act, and congressional focus on DOJ’s use of suspension and debarment, and is hosted by Peter…
Fastest 5 Minutes: Nondisplacement of Qualified Workers, Unique Entity Identifier Issues
This week’s episode covers a proposed rule regarding the Nondisplacement of Qualified Workers Under Service Contracts, ongoing concerns about the transition from DUNS to Unique Entity Identifier, assessment of the quality of data in USAspending.gov, and a court decision regarding suspension and debarment, and is hosted by Peter Eyre and Yuan Zhou. Crowell & Moring’s…
State of Suspension/Debarment: FY2016 Statistics and the Impact on Small Businesses
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.
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Tough (Tax) Break: Federal Tax Delinquency and Felony Convictions Could Bar Corporations from Contract Award
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.
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Rethinking Government Contracts Crisis Management: Identifying Risk Before a Crisis Begins
There are always clues.
After-action reviews nearly always identify signals that a crisis was about to begin. Small hints, tips, strange comments, or different attitudes from a customer. Something will be there. But these clues can be difficult to spot in the moment by busy in-house counsel or senior executives on the front lines of the business.
While skilled lawyers and professionals are available to support companies in full-blown crises, these teams with their cross-cutting skills are often engaged too late to shape the narrative before an all-consuming defense effort begins.
So the question becomes, how do government contractors get out in front of emerging issues, manage their risk, and mitigate as much of an impending crisis as possible? One possible answer is that systematic risk assessments and response protocols need to evolve to consider the emerging risk of parallel enforcement proceedings—to include suspension and debarment from further government contracting work—as well as the changing dynamics involved in settling a matter with the Department of Justice without a fulsome disclosure of misconduct by individuals.…
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C&M Webinar: What Will the New Year Bring for Government Contractors?
Contractors felt the squeeze from budget cutbacks and increased compliance requirements during 2013. As government agencies continue to operate under constrained budgets, competition for the federal contracts will remain intense. What should contractors expect in 2014? Join our Crowell & Moring team on Thursday, January 9 at 1:00 pm EST for a free webinar as…
New Commercial Item Exceptions to Subcontractor Responsibility Clause
While the administrative tools of suspension and debarment allow the government to prohibit entities from receiving contracts or grants directly, the procurement regulations also contain restrictions on prime contractors’ ability to subcontract with suspended or debarred entities. Historically, these restrictions, found at section 52.209-6 of the Federal Acquisition Regulation, have:
- Prohibited government contractors from entering