Government Contracts Monitor

The Race to Suspend & Debar Heats Up

March 19, 2012

By: Lindsay Simmons

We recently wrote about the November 15, 2011 directive from the Director of OMB telling agencies to step up their suspension and debarment procedures.  Click hereto read the OMB directive in its entirety.   

More current events make clear that Congress means business when it comes to this issue.

 

First, the Consolidated Appropriations Act of 2012.  This includes five separate provisions prohibiting the use of federal funds for any corporation convicted of a felony within the past 24 months.  These exclusions appear in the following 2012 Appropriations: (1) Department of Defense; (2) Energy and Water Development; (3) Financial Services and General Government; (4) Department of Labor, Health and Human Services, Education and Related Agencies; and (5) Military Construction and Veterans Affairs and Related Agencies.  Thankfully, an exclusion is provided for situations where “the agency has considered suspension or debarment of the corporation and made a determination that this further action is not necessary to protect the interests of the Government.”   In other words, business concerns that successfully defend against a suspension and debarment action and prove they are responsible contractors should not be impacted. 

Agencies are beginning to implement this requirement.  The Department of Defense has a new certification that requires an offeror to state whether –

It is [  ] is not [  ] a corporation that was convicted of a felony criminal violation under Federal law within the preceding 24 months.

The Federal Acquisition Regulatory Council has an open FAR Case (2012-005) with a proposed FAR rule implementing this provision due on March 28, 2012. 

And one more item on this agenda:  A few weeks ago the Comprehensive Contingency Contracting Reform Act of 2012 was introduced with the intention of “overhauling the federal government’s planning, management, and oversight of contracting during overseas contingency operations.”  This legislation would provide additional, extraordinary bases for suspension such as (i) if a contractor is charged with a criminal federal offense related to a contract for overseas contingency operations or (ii) if the federal government alleges fraud against a contractor in a civil or criminal proceeding related to a federal contract (whether or not connected to overseas contingency operations).  This proposed legislation has, not surprisingly, drawn a great deal of criticism and may not make it out of committee.  But it does provide a strong signal for how Congress wishes to see agencies wield their suspension and debarment powers.

Lindsay Simmons is the attorney responsible for the content of this post.