Suspension and Debarment of Government Contractors
Suspension and Debarment are administrative remedies utilized by the U.S. Government that protects the federal government from fraud, waste, and abuse by allowing the government to avoid doing business with non-responsible contractors. Suspensions are actions taken by a suspending official to temporarily disqualify a contractor from government contracting. Debarment is an action taken by a debarring official to exclude a contractor from government contracting for a specified period of time. Both remedies are discretionary actions and not used for punishment. FAR 9.402.
Why Hire Ward & Berry?
Contractors and individuals facing a potential suspension or debarment need to understand the impact ineligibility would have on their business. For companies who primarily do business with the federal government, a suspension or debarment can amount to a corporate death penalty — a terrible event from which the company may never recover. As such, persuading the Suspension and Debarment Official (SDO) that the company is a presently responsible contractor (and that suspension or debarment is therefore unwarranted) is of the utmost importance.
The suspension and debarment attorneys at Ward & Berry PLLC have the experience and history you want on your side. Our lawyers have a thorough understanding of the ins-and-outs of the suspension and debarment process. We represent contractors, as well as individuals, and skillfully guide our clients through the process of demonstrating and persuading SDOs of our clients’ present responsibility.
Why Do You Need a Suspension and Debarment Attorney?
Debarment and suspension are serious threats to government contractors. The government has taken a particularly aggressive approach lately in suspending or debarring companies and individuals – even those who have not been convicted of any criminal wrongdoing. The suspension and debarment process is fast-moving and relatively informal process, with a tremendous amount of discretion given to the SDO to determine which companies and individuals should be involved in the government’s purchase of goods and services.
Suspension and debarment strategy requires an experienced attorney and careful consideration. An attorney must act swiftly and proactively, be a strong client advocate, have thorough subject matter knowledge of the particular legal or compliance lapse that has attracted the SDO’s attention, and have the corporate compliance experience to either champion the client’s existing program to the SDO or to rapidly cure deficiencies in the client’s program. A well-equipped suspension and debarment attorney can help clients deal with the most critical threats facing their businesses and successfully resolve suspension or debarment proceedings. Ward & Berry’s suspension and debarment attorneys have what it takes.
What are the differences between Suspension and Debarment?
Suspensions, Proposals for Debarment, and Debarments are the most common methods of protecting the government from fraud, waste, and abuse and are visible to the public via the System for Award Management (SAM). There are alternatives that protect the government as well like Show Cause Letters and Requests for Information. These are not visible to the public but still protect government and taxpayer interests in the public procurement process.
Suspension elements include:
- An immediate need
- A temporary measure; there is a twelve-month limit
- Usually used pending the completion of an investigation or legal proceedings
- Based upon adequate evidence, usually an indictment
Debarment elements include:
- Usually three years in length
- Based upon a preponderance of the evidence, usually a conviction
The following activity can lead to suspension and debarment as a federal contractor:
- Commission of fraud, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal laws, receiving stolen property, an unfair trade practice
- Violation of antitrust statutes
- Willful, or a history of, failure to perform
- Violation of the Drug-Free Workplace Act
- Delinquent Federal taxes (more than $3,000)
- Knowing failure to disclose a violation of criminal law
- Any other cause that affects the present responsibility of the company or individual
What are the Penalties Triggered by Suspension or Debarment?
If a contractor is suspended, that suspension is carried out via the Executive Branch. The suspension applies to all procurement and non-procurement programs. Suspension has wide ranging effects: offers will not be solicited from, contracts will not be awarded to, existing contracts will not be renewed or otherwise extended for, and subcontracts requiring Government approval will not be approved to the suspended contractor by any agency in the Executive Branch of the Federal government. However, the head of the agency taking the contracting action or designee may identify in writing a compelling reason for continued business dealings between that contractor and the agency.
When suspended, there are also restrictions on acting as a subcontractor. No Government contractor may award the suspended contractor a subcontract equal to or in excess of $30,000 unless there is a compelling reason to do so and the contractor first notifies the contracting officer and further complies with the provisions of FAR 9.405-2(b). Further, no agency in the Executive Branch shall enter into, renew or extend a primary or lower-tier covered transaction in which the suspended contractor is either a participant or principal unless the head of the agency grants an exception in writing. The Government contractor’s affiliation with, or relationship to, any organization doing business with the Government will be carefully examined to determine the impact of those ties on the responsibility of that organization as a Government contractor or subcontractor.
In some instances, the Suspension and Debarment Official (SDO) might send a “request for information letter,” or a “show cause” letter to a Government contractor being reviewed for suspension and debarment. The SDO may also decide to enter into an Administrative Compliance Agreement. These agreements document remedial measures taken to prevent reoccurrence and often include outside and independent review/audits by consultants. They generally last three years.
Contact Us Today
Contact our suspension and debarment attorneys in Washington, D.C., or Tysons, Virginia. If you need help with either a suspension or debarment it is critical to contact an experienced attorney at Ward & Berry PLLC as soon as possible. We are here to help you. Call us today (202) 331-8160 or click here for our contact page.