Defending and Responding to Contractor Suspension and Debarment

Having received the government suspension or debarment notice, you have to seriously consider your company’s approach to defending and responding to the agency’s recommendation to the deciding office.

Contractor actions are serious business and having the right response can save your company’s future.

Defending and Responding — Initial Approach

Your first task is to present matters in opposition.  You generally have 30 days as the respondent to submit information or arguments as to why the suspension or debarment should not be imposed. You can do this in person or in writing.  

In order to improve their chances of getting serious consideration from the debarring official, most government contractors seek legal advice from suspension and debarment lawyers that understand the procurement process.

• You should submit your defense or response before attending a hearing or meeting with the debarment official.

When defending and responding to contractor suspension or debarment actions you should focus on full and complete disclosure related to the facts and circumstances for the alleged misconduct. Without this critical step, you may lose credibility in your response.

• Note that all information you provide will become part of the administrative record.

Tips for Responding to Proposed Debarment or Suspension of Government Contractors or Employees

When a contractor or government employees receive a letter of concern or a letter of proposed debarment for federal suspension or debarment, it is crucial to respond promptly and appropriately. Here are some general steps one might consider:

1. Review the Letter:
– Carefully read and understand the contents of the letter, including the concerns or allegations raised by the government agency.
– Take note of any deadlines or specific instructions provided in the letter.

2. Gather Relevant Information:
– Collect all pertinent documents, contracts, correspondence, and records related to the concerns raised in the proposed letter. If you choose to hire a debarment lawyer, he or she will need these documents.
– Ensure you have a clear understanding of the facts and circumstances surrounding the matter.

3. Seek Legal Advice:
– Consult with an experienced suspension debarment attorney specializing in government contracts and suspension/debarment proceedings.
– Share the letter and all relevant information with your attorney to seek guidance on the best course of action.

4. Conduct an Internal Investigation:
– Conduct an internal review or investigation to assess the validity of the concerns raised. This is highly regarded when you respond to the Suspension and Debarment Official (SDO).
– Identify any potential areas of non-compliance, contract breaches, or other issues that need to be addressed.  If you choose to develop corrective actions and training, this too and help the impact of your case.

5. Develop a Response Strategy:
– Work closely with your attorney to develop a response strategy tailored to the specific concerns and circumstances.
– Determine the most appropriate approach, which may involve providing additional information, explanations, or corrective actions.

6. Prepare a Response:
– Craft a comprehensive and well-organized response addressing each concern raised in the letter. The key to a response is to accept responsibility and to show that you and or your company are “responsible” employees or government contractors.
– Provide supporting evidence, documentation, or arguments to counter any allegations and demonstrate your compliance or mitigation efforts.

7. Timely Response Submission:
– Ensure your response is submitted within the designated timeframe specified in the letter.
– Keep copies of all correspondence and maintain a record of the response submission for future reference.

8. Cooperate and Communicate:
– Maintain open lines of communication with the government agency issuing the letter.
– Cooperate fully and proactively address any additional requests for information, meetings, or follow-up actions.

9. Monitor and Comply:
– Stay vigilant and proactive in addressing any ongoing compliance concerns or issues identified during the process.
– Implement necessary corrective actions and strengthen internal controls to prevent recurrence.

10. Continual Legal Guidance:
– Work closely with your suspension and debarment lawyer throughout the process, following their guidance and recommendations to navigate the suspension or debarment proceedings effectively.

Senior Company Officials Should Participate in Contractor Suspension and Debarment Responses: When submitting a response or defense to contractor suspension and debarment actions, contractors should seek direct input from key executives and senior officials. They are the best people to discuss the contractor responsibility and any steps taken to prevent similar situations in the future.

This is a good time to consider having outside legal counsel to help draft the response and to provide guidance on how to defend and respond to the debarment or suspension actions.

• Providing affidavits and declarations are important when defending and responding to contractor suspension and debarment actions.

Confrontational in Suspension or Debarment Responses Does Not Help: Responding to a suspension or debarment action should focus on present contractor responsibility and current or proposed internal policies and controls. Debarment official decisions can be impacted by a showing of what level of internal steps you have taken to prevent future ethical violations or even criminal actions.  See how FAR 9.4 Debarred Meaning and Definition  impacts the outcome of negotiations

• Effectively defending and responding to contractor debarment and suspension actions is all about how you plan to avoid future problems.

What are Some Pitfalls to Avoid When Responding to a Proposed Debarment?

• Not thoroughly analyzing the allegations or reasons for suspension or debarment. 

• Failing to realize that a company’s own actions may be considered in determining if it is eligible for reinstatement. 

• Not adequately reviewing past contracts and transactions in order to properly identify where any potential violations have occurred. 

• Neglecting to consider all available remedies and legal defenses. 

• Not considering the broader impact of a debarment or suspension on the company’s operations. 

• Neglecting to evaluate how FAR 9.4 Debarred Meaning and Definition may alter the outcome of negotiations or other discussions between parties. 

When Do Officials Give Suspension and Debarment Decisions?

The FAR 52.209-6 contemplates that contractor suspension and debarment decisions will be given in 30 working days after receipt of your defense and response. However, this can be extended in cases where the agency is allowed to provide a response. Read more about Administrative Agreements During Suspension or Debarment.

For help defending and responding to contractor suspension or debarment, call our suspension and debarment defense lawyers at 1-866-601-5518. FREE INITIAL CONSULTATION.