Do You Know the Next Steps for Your Suspension and Debarment Appeals?
As a government contractor, you must be aware that the Board of Contracts Appeal does not have jurisdiction to review suspension and debarment appeals decisions. See Inter-Continental Equipment, Inc., ASBCA No. 38444, 90-1 BCA122,501 at 112,956 (holding the Board lacks authority to order overview actions which do not affect a contract that has already come into existence between the Government and a contractor).
When the agency notifies you that your company is recommended for suspension or debarment, your next step is critical. Finding out what time limitations you have to respond, whether you have rights to a hearing can be very critical to how you proceed.
The appeals process can be time-consuming. However, saving your company’s future reputation may be worth the effort.
Reasons Why Government Agencies Cannot use Debarment Regulations
Suspension and debarment are arguably in place to preserve the integrity of the federal procurement system. Sometimes agency officials may not necessarily like certain companies or individuals from the contractor’s camp. However, government agencies cannot use debarment laws to punish contractors, get even with them, or otherwise persuade individuals to act.
Why have Suspension and Debarment Regulations?
The federal government suspension and debarment process prevent fraud, waste, and abuse both in federal procurement and non-procurement actions (grants, loans etc). See the difference between suspension and debarment.
The bottom line is that when you face a federal debarment or suspension action you are precluded from doing future business with the government. Being suspended or debarred can seriously impact federal employees and government contractors that depend on federal contracts for company revenues.
The Federal Acquisition Regulation (FAR), at 48 C.F.R. subpart 9.4, Debarment, Suspension, and Ineligibility, implement regulations for federal government procurement actions. Keep in mind that non-procurement regulations can cross over to procurement actions.
The General Services Administration (GSA) keeps a formal list of government contractors and individuals that are debarred, suspended, or otherwise excluded from doing business with the federal. See www.SAM.gov. – System for Award Management.
Not All Courts Can Hear Suspension and Debarment Appeals Under 45 CFR 1641.24
Please be aware that under the CDA, the Board of Contract Appeals only “has jurisdiction to decide any appeal from a decision of a contracting officer of the Department of Defense…relative to a contract made by that department or agency.” See 45 CFR 1641.24 and 41 USC 7105(e)(l)(A). Debarment from government contracts does not originate from the contracting officer.
Therefore, you must not file an appeal from someone that is not the contracting officer or your case will be dismissed. When you find that someone is making an adverse decision in a government contracting agency, ensure that it is the contracting officer.
In other words, suspension and debarment appeals are not the contracting officer’s final decisions. If you appeal your case to the wrong court it will be dismissed for lack of subject matter jurisdiction. See 45 CFR 1641.24 – Appeal and reconsideration of debarring official decisions.
Causes of Debarment from Government Contracts
The debarring official may debar-
(a) A contractor for a conviction of or civil judgment for-
(1) Commission of fraud or a criminal offense in connection with-
(ii) Attempting to obtain; or
(iii) Performing a public contract or subcontract.
(2) Violation of Federal or State antitrust statutes relating to the submission of offers;
(3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property;
(4) Intentionally affixing a label bearing a “Made in America” inscription (or any inscription having the same meaning) to a product sold in or shipped to the United States or its outlying areas, when the product was not made in the United States or its outlying areas (see Section 202 of the Defense Production Act (Public Law 102-558)); or
(5) Commission of any other offense indicating a lack of business integrity or business honesty that seriously and directly affects the present responsibility of a Government contractor or subcontractor.
Find out more about Federal Debarment Policy for Government Contractors.
Take The Next Step
Call our Washington DC suspension and debarment lawyers for immediate help.
If you are trying to fight federal government suspension and debarment actions, call the government contract law attorneys at Watson & Associates at 1-866-601-5518 for a free initial consultation.