Representation of Individual Government Contractors in Suspension and Debarment Cases

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) to protect the government’s interest from irresponsible contractors. Suspensions 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 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. Removal from current employment;

2. Creating significant security clearance problems for government contractors with security clearances; and

3. They often prevent them from employment in their industry.

Contractors that are debarred, suspended or proposed for debarment 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 and there is a robust response process. Of late, the government has also seemed to take a more assertive approach in debarment or suspension of individuals that are under the suspicion of wrongdoing, even if they have not been convicted of any crime.  

General Reasons for Suspension or Debarment

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 Misconduct

Debarment / Suspension Process

At the start of the 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 negative outcome.

A debarment or suspension proceeding is not altogether that different than a security clearance proceeding and those issues often intermix. The government will generally provide a show cause letter to the individual under the FAR, give them an initial chance to respond to the allegations, along with a memorandum in support of proposed debarment. If the matter proceeds, the individual contractor will have to respond to a Notice of Proposed Debarment from the government.

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, 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.

Conclusion

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.

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