Employment and Labor
Contractor Debarment Defense
We represent individual government contractors in debarment and suspension cases before federal government agencies, such as those within the Department of Defense and others.
What are Debarments and Suspensions?
A debarment is a government action taken under the Federal Acquisition Regulations (FAR) in order to protect the government’s interest in not engaging with contractors that have engaged in some sort of misconduct. Suspensions are shorter-term and result in temporary contractor ineligibility usually occurring during an investigation or other ongoing legal matters. Debarments are a finding of ineligibility from government contracts for government contractors that have been found to be irresponsible and can last a period of years. Suspensions and debarments are not designed to punish a government contractor, but for the purpose of protecting the public.
The Effect of Debarments and Suspensions
Debarments and suspensions have a significant impact on individual government contractors. These can include:
1. Termination by an employer;
2. Significant alteration in work duties;
3. Creation of security clearance issues for government contractors that also hold security clearances; and
4. Prevention of a government contractor from employment in their industry.
Contractors that are debarred or suspended are not eligible to receive or work on government contracts, unless a compelling reasons exists, which can be a very high bar to meet.
The government takes a clear approach to debarment cases and there is a formal response process. Of late, the government has also seemed to take a more assertive approach in the debarment or suspension of individuals that are under the suspicion of wrongdoing, even if they have not been convicted of any crime or adjudicated guilty of employment misconduct.
Typical Reasons for Suspension or Debarment
Some of the more common reasons for suspension or debarment can include:
(1) Misconduct at work (e.g., mischarging of time worked, misappropriation of information);
(2) Criminal Convictions or Allegations;
(3) Civil Judgments; and
(4) Evidence of Crimes or Convictions.
The Debarment Process
At the start of the debarment response process, the government will generally issue a show cause letter (more on that below) requiring a government contractor to demonstrate why they should not be debarred from government contracting work. These proceedings can occur quickly and individual government contractors must respond fully in order to avoid a potential negative outcome.
A debarment or suspension proceeding is not altogether that different than a security clearance proceeding and those issues can often be intertwined. As mentioned above, the government will generally provide a show cause letter to a government contractor under the FAR and provide them with an initial chance to respond to the allegations. If the matter is not resolved at that stage, the individual contractor will have to respond to a notice of proposed debarment which will often provide additional documents as part of the action.
In responding to a notice of proposed debarment, it is crtitical to fully address all allegations of impropriety, through counsel. It is often very helpful to submit letters of support on behalf of the individual, a resume, evidence of prior military service (where applicable), awards, commendations and other materials which demonstrate the character and integrity of the individual. Additionally, it is very important to cooperate in related investigations. All possible mitigating arguments should be made to the Debarring Official in an effort to defend an individual government contractor.
Following the response period, a decision will be rendered by the Debarring Official. The Debarring Official can uphold, mitigate or terminate the Debarment. If a negative finding is reached, leaving the person debarred status, this determination will be placed in the debarment database, known as the System for Award Management (SAM).
Further, if an adverse decision occurs, there is sometimes the ability to seek reconsideration of a negative debarment finding. The process can involve contacting the Debarring Official with new or other evidence and seeking to reduce the debarment. Please contact Berry & Berry, PLLC to schedule a consultation with a debarment defense attorney if you are facing a potential debarment from government contracting and need assistance. We focus on the representation of individual government contractors in debarment proceedings.