Suspension and Debarment

The attorneys at Seidman & Associates, P.C. represent firms and individuals in proceedings before agency Suspension Debarment Officials (“SDO”). Suspension or debarment can be a death sentence for a government contractor unless necessary actions are promptly taken to have the contractor reinstated. A firm or individual that is proposed for debarment or suspended is generally ineligible for an award of a Federal contract or subcontract. Suspensions or debarments generally do not effect previously awarded contracts.

If wrongful conduct has occurred a suspension or debarment can often be avoided by requesting a meeting with the SDO prior to receiving a notice of suspension or proposed debarment. An SDO should not be suspend or debar if a firm demonstrates it has taken corrective action to prevent a recurrence and is presently responsible. It is preferable to address such issues prior to receipt of a notice of suspension or proposed debarment when a company is still eligible to receive government contracts.

Grounds for Suspension and Debarment

A contractor may be debarred for

(1) a conviction or civil judgment for any offense indicating a lack of business integrity, including fraud, antitrust violations, embezzlement, theft, forgery, bribery, false statements, etc.;

(2) a serious violation of the terms of a Government contract, subcontract or various laws and regulations; and

(3) any other cause so serious or compelling in nature that it affects a contractor’s present responsibility to perform Government contracts or subcontracts.

Only “adequate evidence” of prohibited conduct is required for a suspension. An indictment is “adequate evidence”.

The purpose of suspension and debarment is to protect the Government from dealing with firms that are not responsible rather than to punish. Present responsibility is the overriding issue. Even if there is a wrongful act a firm or individual should not be debarred if presently responsible.

Suspension or debarments can be avoided by demonstrating present responsibility. This is often done by taking corrective action to assure that the alleged wrongful conduct does not reoccur. Possible corrective action includes terminating wrongdoers, compliance programs and ombudsmen. Agencies often require a firm to enter into an administrative agreement requiring specified corrective action as a condition of reinstatement

Procedure for Suspension and Debarment

An agency begins the process by issuing a notice of suspension or proposed debarment. A firm or individual has 30 days to respond by filing “Matters in Opposition” demonstrating the alleged grounds do not exist or the contractor or individual is presently responsible.

The evidence upon which a suspension or proposed debarment is based appears in an administrative record compiled by the agency. A party should obtain the administrative record from the agency and address the evidence that appears therein in its Matters in Opposition to the Suspension or Proposed Debarment.

Seidman & Associates has experience representing companies before agency SDOs. We have had suspensions and debarments lifted by demonstrating that the alleged grounds do not exist or the firm or individual is presently responsible. Demonstrating present responsibility may require corrective action such as terminating wrongdoers and adopting compliance programs. Our attorneys can also reduce the chance of suspension or debarment by assisting a company in developing compliance programs designed to prevent wrongful acts that are grounds for suspension or debarment.

Disclaimer

The aforementioned statement of general principles applicable to suspensions and debarments is not intended as legal advice. In order to obtain legal advice applicable to specific facts a consultation is required.