By John V. Berry, Esq., www.berrylegal.com
We represent individual government contractors in suspension and debarment cases before federal agencies, like the Department of Defense and many others.
What are Debarments and Suspensions?
Suspensions and debarments are government actions taken under the Federal Acquisition Regulation (FAR) in order to protect the government’s interest from irresponsible contractors. Suspensions are shorter-term and result in temporary contractor ineligibility usually occurring during an investigation or other ongoing legal matters. Debarments are a finding of ineligibility from government contracts for government contractors that have been found to be irresponsible and can last a period of years. Suspensions and debarments are not designed for the purpose of punishing a government contractor, but for protecting the public.
Effect of Debarments and Suspensions
Debarments and suspensions have a significant impact on individual government contractors. These can include:
1. Termination from current employment;
2. Change in work duties;
3. Creation of significant security clearance problems for government contractors that also hold security clearances; and
4. Prevention of a government contractor from employment in their industry.
Contractors that are debarred or suspended are not eligible to receive contracts, unless a compelling reasons exists, which can be a very high bar to meet.
The government takes a fairly straightforward approach to debarment cases and there is a robust response process. Of late, the government has also seemed to take a more assertive approach in the debarment or suspension of individuals that are under the suspicion of wrongdoing, even if they have not been convicted of any crime or adjudicated guilty of employment misconduct.
Common Reasons for Suspension or Debarment
Some of the most common reasons for suspension or debarment can include:
(1) Criminal Convictions or Allegations;
(2) Civil Judgments;
(3) Evidence of Crimes; and
(4) Specific Employment Misconduct.
Debarment / Suspension Process
At the start of the debarment response process, the government will issue a show cause letter requiring a contractor to demonstrate why they should not be suspended or debarred. These proceedings are fast paced and individual government contractors must respond in order to avoid a potential negative outcome.
A debarment or suspension proceeding is not altogether that different than a security clearance proceeding and those issues can often intermix. The government will generally provide a show cause letter to the individual under the FAR and provide them with an initial chance to respond to the allegations, along with a memorandum in support of the proposed debarment. If the matter proceeds, the individual contractor will have to respond to a notice of proposed debarment from government contracts.
In responding to a notice of proposed debarment, it is important to fully address all allegations of impropriety, through counsel. We find it helpful to submit letters of support on behalf of the individual, awards, commendations and other materials which demonstrate the character and integrity of the individual. Additionally, cooperation in related investigations, the completion of ethics training in a relevant area, acceptance of responsibility and other mitigating arguments should be made to the Debarring Official in an effort to defend an individual government contractor.
Following the response period, a decision will be rendered by the Debarring Official. The Debarring Official can uphold, mitigate or terminate the Debarment. If a negative finding is reached, leaving the person in a debarment status, that finding will be placed in the debarment database, known as the System for Award Managements (SAM).
Further, if a negative finding is found, there is sometimes the ability to seek reconsideration of a negative debarment finding. The process can involve contacting the Debarring Official with new or other evidence and seeking to reduce the debarment.
When an individual government contractor is facing potential debarment or suspension issues before a federal agency it is important to obtain legal advice and legal representation. Our law firm advises individual government contractors in the debarment process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070 to schedule a meeting to go over individual issues and potential representation.