Appeals in the Federal Debarment and Suspension System

When a government contractor is recommended for debarment, the first part of defending the action is to see whether the company falls within the intended purpose of the statute. The purpose of the Debarment and Suspension System is:

• To protect the public interest, the Federal Government ensures the integrity of Federal programs by conducting business only with responsible persons.
• A Federal agency uses the nonprocurement debarment and suspension system to exclude from Federal programs persons who are not presently responsible.
• An exclusion is a serious action that a Federal agency may take only to protect the public interest. A Federal agency may not exclude a person or commodity for the purposes of punishment.

Ability to Do Business With the Government: If any Federal agency excludes a person under Executive Order 12549 or Executive Order 12689, on or after August 25, 1995, the excluded person is also ineligible for Federal procurement transactions under the FAR. Therefore, an exclusion under the Debarment and Suspension System has reciprocal effect in Federal procurement transactions.

Companies recommended for debarment cannot participate in bidding for federal government contracts unless you are successful in the appeals process. This a penalty that federal contractors want to avoid at all costs.

Appeals in the Federal Debarment and Suspension System

When you are notified about the recommendation, and are considering appeals under the federal Debarment and Suspension System, you want to first follow any directions given in the letter. Next you should seriously consider getting legal advice from an experienced debarment and suspension lawyer. Preparing an adequate response to the debarment committee is critical.

(a) If the debarring official issues a decision under 2 CFR 180.870 to debar you after you present information in opposition to a proposed debarment under 2 CFR 180.815, you can ask for review of the debarring official’s decision in two ways:

(1) You may ask the debarring official to reconsider the decision for material errors of fact or law that you believe will change the outcome of the matter; and/or

(2) You may request the Director, Office of Grants and Debarment (OGD Director), to review the debarring official’s decision to debar you within 30 days of your receipt of the debarring official’s decision under 2 CFR 180.870 or paragraph (a)(1) of this section. However, the OGD Director can reverse the debarring official’s decision only where the OGD Director finds that the decision is based on a clear error of material fact or law, or where the OGD Director finds that the debarring official’s decision was arbitrary and capricious, or an abuse of discretion.

(b) A request for review under this section must be in writing; state the specific findings you believe to be in error; and include the reasons or legal bases for your position.

(c) A review under paragraph (a)(2) of this section is solely within the discretion of the OGD Director who may also stay the debarment pending review of the debarring official’s decision.

For additional help in a pending action under the federal Debarment and Suspension System, contact a debarment attorney at 1-866-601-5518.