VIDEO: Suspension and Debarment in Government Contracting
In this three-part video alert series, Crowell & Moring Partner David Robbins discusses suspensions and debarment, administrative actions to remove government contractors and prevent recipients from receiving new federal contracts and funds, along with his own experiences as a former debarring official and provides some tips on how best to navigate these challenging sets of circumstances.
Part 1: What is Suspension and Debarment?
Part 2: Three Things Never to Say to a Debarring Official
Part 3: Trends in Suspension and Debarment
What are suspension and debarment in government contracting?
Suspension and debarment are administrative actions to remove government contractors and prevent recipients from receiving new federal contracts and funds. It’s commonly referred to as a death sentence for government contractors. It is that painful.
What is the best approach when dealing with a debarring official?
I was a debarring official. I was a counsel for a debarring official. There were thousands of cases I’ve seen and each are different, but you always want to put yourself in the shoes of the people across the table from you so you’re speaking to them as they want to be spoken to. There are a lot of different theories and schools of thought, when it comes to approaching debarring officials. You need to weigh and assess your particular situation, what your exposure is, and what the risks are of each approach. My approach tends to vary by client and by situation, but it’s always informed by the fact that I was on the other side of the table.
What does a contractor have to do if it gets suspended or debarred?
The name of the game in a suspension or debarment proceedings is “present responsibility.” That’s a term of art, but in short, it means you have your act together. You can be trusted to deal fairly with the government, proper ethics program, compliance program and you can self-police. You can monitor yourself and correct what the government sees as misbehavior.
How important is it to monitor closely what you say to a debarring official?
Considering the lifeblood of your business, your ability to earn any more money from the federal government is at stake, you have to be exceptionally careful with what you say and how you convey your message to a debarring official.
What’s the first thing never to say to a debarring official?
The first thing you should never say to a debarring official, whether it’s in your written presentation or when you go and meet with them is, “I will do whatever you want, just don’t cut off the flow of my funds.” That’s not what they want to hear. Their job is to get a gut feeling and assess “Are you presently responsible? Do you have your act together?” Coming in and in essence begging, “I will do whatever you want”, doesn't convey a message that you have your act together, that you’re presently responsible. You want to have a plan. You want to convey what went wrong, why it went wrong, and how it was fixed and can never happen again.
What else should you never say to a debarring official?
You also don’t want to tell the government that this misconduct had nothing to do with government contracting business. It was in the commercial market, it was overseas, it had nothing to do with you, so why do you care? That’s extraordinarily damaging. What you’re saying when you convey that is, “We don’t cheat you, we just cheat other people, but we’ll break the laws somewhere else.”
What should a contractor say when the government’s facts are wrong?
Sometimes, the government just flat out gets it wrong. You could get a notice of proposed debarment, a suspension notice, or a show cause letter, which is just saying, “Explain to me how this happened and why I shouldn't exclude you from federal funds” -- where the facts are just wrong. It happens.
But, what you don’t want to do is mount a full frontal attack on the allegations. You don’t want to go in and poke the debarring official in the eye and say “You got it wrong!” What you want to do is take the concern seriously, softly explain why you might see facts a little differently, but establish a common ground of ethical tone and proper compliance. That’s what convinces the debarring official that, you know what, these are people I can work with.
What trends are you seeing in debarment?
Trends I’ve been monitoring in suspension and debarment are the increasing numbers, a multiple of what it was just five years ago. So, the potential for being faced with one of these suspensions or debarments is far greater. Another area of concern is the increasing willingness of suspending and debarring officials to send letters and to inquire very early on over the course of a government investigation. For example: there can be a civil false claims act case or even an allegation of whistle blower reprisal and suddenly a debarring official is getting involved. That’s a real challenge you see, because normally you get to defend yourself as a company, or an individual before the Department of Justice and do so vigorously before anyone is calling into question your ability to obtain new contracts.
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