Suspension & Debarment: New Trends And The Continuing Due Process Debate
In a recent interview with Federal News Radio, Rob Burton, a thirty-year veteran of federal procurement law and policy and a partner in Venable's Government Contracts Practice Group, discussed the recent upward trend in suspension and debarment actions caused by a recent push by Congress and others to increase enforcement. The radio interview can be downloaded by clicking here. It is important that companies doing business with the government be aware of these trends, their potential impact, and the resources Venable offers to quickly resolve these actions and minimize the impact on contractors.
The Increase in Debarments and the New Ineligibility Laws
According to the Interagency Suspension and Debarment Committee, the number of suspensions increased by nearly 200 from 2009 to 2010, and the number of debarments increased by 150, an approximately 10 percent increase, over the same period. Though it is important to note that not all agencies use the same method for calculating these numbers, the overall trend is absolutely toward greater use of suspension and debarment. In fact, many in Congress and even some agency officials believe that suspension and debarment should be employed as a way to punish contractors who are not responsible, even though regulations explicitly provide that these actions should be used only to protect the interests of the government, not to punish contractors. See, e.g., 48 C.F.R. § 9.402(b).
A particularly disturbing facet of Congress's recent push for increased debarments is the recent uptick in attempts to impose automatic debarment provisions — the latest effort being an automatic ineligibility for federal contracts and grants for felony convictions contained in appropriations measures. What is particularly troubling is that there is no consistency between these appropriation acts. Some call for automatic ineligibility if the company is convicted of a felony, but do not specify whether this applies to state, as well as federal, felonies. Some only apply if the company itself is convicted of a felony, while others impose automatic ineligibility if any of the company principals are convicted. Further, some appropriations measures allow companies to seek redress from any suspension and debarment official, whereas other measures require the company to approach the agency where it is seeking current work. This of course forces companies to visit each agency's suspension and debarment official as opportunities arise...
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