Suspension and Debarment of Government Contractors
Procurement suspension and debarment of government contractors come into play when you do not comply with the terms and conditions of your contract. Not all companies understand what has to be done to overcome agency referrals for suspension or debarment or how to meet the preponderance of the evidence standard that can get the process reversed.
For companies debarred from government contracts, or in the process of being debarred, the key to responding to suspension or debarment referrals is to focus on showing that you are the type of contractor that is responsible and not a threat to the government or taxpayer dollars. Although responding to the agency recommendations may include providing evidence of fault to situations beyond your control, you must also balance the approach with showing evidence of mitigating circumstances or actions your company may have taken to reduce potential or perceived risk to the government.
The consequences of being placed on the federal debarment list are serious and can severely impact your business revenues. How you respond to a proposed suspension or debarment notice is critical. This can include anything for contract clause compliance or involvement with contract procurement fraud, forgery, false statements and more.
What is Suspension and Debarment from Government Contracts?
Being suspended or debarred from government contracts also gives agencies protection from doing business with individuals/companies/recipients who pose a business risk to the government. Procurement suspension or debarment are not conclusive to what an agency alleges. Instead, the facts and circumstances drive the outcome.
When you are involved in criminal indictments, involved in theft, forgery, poor contract performance, or found making false statements to the federal government, suspension actions can last up to one year.
- The action for suspension is effective immediately.
- Immediate Need
- A temporary measure; there is typically a twelve-month limit
- Usually used by the government pending the completion of a federal investigation or some other legal proceedings
- Based upon adequate evidence, usually an indictment for criminal actions
Appealing the government’s suspension or debarment action is possible but difficult. When looking at the legal contract suspension definition, concerns arise as to whether government contractors are already guilty without a trial or legal action. However, such a defense will not stand up in court. See information about appeals of suspension or debarment decisions.
Debarment Definition – How Long Does Debarment Last?
Agency referrals for being debarred involve more serious consequences. If government contractors are convicted of judgments or involving environmental crimes, contract fraud, embezzlement, theft, forgery, bribery, poor performance, non-performance or making false statements to the federal government, they can be held to permanent debarment from government contracts and from doing business with the federal government.
- More permanent in nature
- Usually three years (3) long
- Based upon a preponderance of the evidence, usually a conviction ( for more serious actions when compared to a suspension)
What is the Impact of suspension debarment of government contractors ( 2 CFR 180)
After you meet the “debarred meaning”, the impact on your personal and business future can be a very serious matter. As a practical matter, developing internal audit reports and having your company evaluated for compliance can minimize the impact of debarment and suspension of government contractors.
- Consider having a tailored compliance roadmap that minimizes terrible audit reports from DCAA, IG or DOJ.
Suspension debarment of government contractors impacts the ability of companies to participate in future government contracts, subcontracts, government loans and other federal programs. (See 2 CFR Part 180 and 2 CFR Part 1532 regulations). This can have a crippling effect on a company’s revenues. See also, Consequences of Procurement Fraud Schemes & Avoiding Criminal Liability
What are the differences between debarment and suspension of government contractors?
The law allows government agencies wide latitude to issue proposals for debarment and suspension of government contractors for issues that are serious and that can seriously impact procurement integrity. This is a broad net. Some of the common actions that can trigger procurement suspension or debarment from government contracts:
- fraud or criminal offenses government-wide in connection with obtaining, attempting to obtain, or performing a public contract
- violation of federal or state antitrust laws relating to the submission of offers
- embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receipt of stolen property
- violations of the Drug-Free Workplace Act of 1988
- intentional misuse of the “Made in America” designation
- violation of Trade Agreements Act (TAA)
- unfair trade practices, as defined in Section 201 of the Defense Production Act
- other offenses indicating a lack of business integrity or honesty that seriously affects the present contractor responsibility.
WHAT ARE YOUR OPTIONS AFTER RECEIVING A REFERRAL NOTICE?
When government contractors get a letter from the agency, they must immediately assess the allegations for factual differences. These factual differences help your attorney to better prepare the response to the suspending or debarring official (SDO). The law gives you the opportunity to respond and provide facts and evidence to show that contrary to the agency’s referral letter you or your company indeed has present responsibility.
In addition, you can also meet with the SDO in person. In these situations, you may want your lawyer to develop presentations (especially great for larger contractors). The focus should always be on having present responsibility in addition to showing reasons why the agency’s referral should be rejected.
- The information provided to the SDO should be relevant to the decision you seek
- Information found in discovery or evidence to minimize the agency’s position should also be of focus
OPTIONS – WHAT CAN THE SDO DO BESIDES SUSPENSION OR DEBARMENT FROM GOVERNMENT CONTRACTS?
Depending on the strength of your response, the SDO has a few options. In many situations, if the SDO sees that you have present responsibility, he or she may decide to take no serious action. In some situations, the SDO may request additional information through a Request for Information letter or a Show Cause Letter.
The SDO may choose to enter into an Administrative Compliance Agreement. Small businesses can benefit from this option because the Administrative Compliance Agreement provides a roadmap to success. Current Administrative Compliance Agreements can be found at www.fapiis.gov
Find out more about Defending and Responding to Contractor Suspension or Debarment and
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Call Our Government Procurement Suspension and Debarment Attorneys For Immediate Help
For more information about federal debarment from government contracts or if you are facing indictment, need help to navigate through the process or are involved in a federal procurement suspension and debarment action, call a government contracts lawyer or a white collar criminal defense attorney at 1-866-601-5518.
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