Debarment and suspension are serious threats to government contractors and grant recipients. These administrative exclusions from further contracts, grants, or federal assistance can be the equivalent of a death sentence for a company. Debarments and suspensions can also impact individuals: removing them from their employment, preventing reemployment in the industry, and making it difficult to obtain other federal assistance like federally backed mortgages.
The government has taken an increasingly aggressive approach in debarring or suspending companies and individuals whether or not they have been convicted of any wrongdoing. Even a suspicion of wrongdoing is enough to suspend, propose debarment or, in less severe cases, issue show cause letters requiring contractors to demonstrate why they should not be suspended or debarred. And the deck is stacked in the government's favor in these proceedings with low burdens of proof and fast-moving, informal processes that make suspension and debarment relatively easy to effect and often difficult to challenge.
Because of this new reality, suspension and debarment strategy requires careful consideration in a wide variety of circumstances, for example:
- Proactively as an integrated component of their ethics and compliance programs, and before problems arise in order to establish credibility and tip the scales in favor of a "show cause letter" or similar informal inquiry short of a suspension or proposed debarment should problems arise in the future.
- Proactively upon discovery of wrongdoing, but after mitigation efforts are in place to ensure the problem cannot reoccur, in order to keep the suspending and debarring official informed but minimize the risk of an immediate suspension or proposed debarment.
- In connection with a mandatory disclosure of any significance to explain the circumstances, and impact a proposed debarment as a collateral consequence.
- On behalf of individuals who are the subjects of mandatory disclosures, should the company be required to provide (or find benefit in providing) seasoned suspension/debarment counsel.
- Reactively after a notice of proposed debarment, suspension, or show cause letter issues.
Suspension, debarment and show cause letter engagements – whether proactive or reactive – require political savvy, in depth experience with remedies coordination to anticipate the government's next steps, and particular knowledge of suspension and debarment defense. They also require the capacity to involve teams of experienced attorneys at a moment's notice to avoid the devastating consequences of suspension and debarment.
Our deep bench of experienced suspension and debarment defense lawyers helps clients deal with the most critical threat facing their businesses with the confidence that they are telling the "right story" to the regulators at the "right time" and in the "right way." We have favorably resolved suspension or debarment proceedings and, in many cases, eliminated threats through proactive outreach and coordination. We have represented individuals and businesses of all sizes before suspension and debarment officials and their counsel in most federal executive agencies and many state suspension and debarment officials. In recent years, our lawyers have handled suspension and debarment matters before a wide array of federal agencies, including the Army, Air Force, Navy, Defense Logistics Agency, Department of Commerce, Environmental Protection Agency, General Services Administration, Federal Communications Commission, Department of Justice, Department of Interior, Department of Homeland Security, Transportation Security Administration, Federal Emergency Management Agency, Department of Health and Human Services, Department of Education, Department of Transportation, Federal Highway Administration, Federal Aviation Administration, Small Business Administration, U.S. Agency for International Development, and Department of Veterans Affairs.
In addition, our suspension and debarment practitioners:
Our deep experience helps explains why many of the major suspension and debarment cases—and many smaller cases—in recent years have been handled by our lawyers.
- Represented public company in General Services Administration suspension and debarment proceedings relating to alleged procurement improprieties; proceedings were favorably resolved in a matter of days after presentation to agency officials.
- Handled suspension and debarment matter for public company that was proposed for debarment by the Transportation Security Administration; the matter was favorably resolved via an administrative compliance agreement.
- Represented contractor in Department of Education suspension proceedings initiated as a result of underlying False Claims Act matter and allegations of failure to comply with mandatory disclosure rule; coordinated the representation of the company, as well as related proceedings against several key executives, resolving the matter without a debarment and with an administrative compliance agreement for the company.
- Represented contractor in Air Force suspension and debarment proceedings relating to counterfeit products.
- Represented construction company in Federal Aviation Administration suspension and debarment proceedings focusing on inaccurate certifications regarding use of disadvantaged business enterprises.
- Represented environmental remediation company in suspension and debarment proceedings relating to violations of the Clean Water Act.
- Appeared before the Department of Commerce suspension and debarment official on behalf of an individual proposed for debarment because of alleged procurement improprieties.
- Represented government contractor in Army suspension and debarment matter relating to alleged violations of the Procurement Integrity Act.
- Assisted multinational company in avoiding suspension and debarment for alleged Foreign Corrupt Practices Act violations by successfully negotiating with both criminal and civil investigative agencies as well as the agency debarring official.
- Converted a client's suspension and proposed debarment for alleged mischarging into an administrative agreement, which allowed the client to continue performing government contracts.
- Represented contractor in a Navy suspension and debarment matter relating to allegations of pervasive time mischarging.
- Represented contractor in a Department of Justice proposed debarment proceeding.
Selected Publications and Presentations
Our attorneys are thought leaders in the suspension and debarment field. We speak and publish frequently on these topics as well as routinely provide commentary for journalists writing about suspension and debarment.
Selected examples include:
- "The (Unacceptable) Cost of Growing Delays in the Suspension and Debarment System," Public Contract Law Journal, Vol. 45, No. 1 (Fall 2015). Authors: David B. Robbins and Laura Baker.
- "Dramatic Shifts Underway In Suspension, Debarment Practice," Law360 (April 27, 2015). Author: David B. Robbins.
- "Hallmarks of a Meaningful Suspension and Debarment Program," National Defense Magazine(March 2015). Co-Authors: David B. Robbins and Rodney A. Grandon, deputy general counsel (contractor responsibility) and suspending and debarring official at The Department of the Air Force.
- "How Proposed Debarment Became Equal To Suspension," Law360 (February 2, 2015). Co-Authors: Angela B. Styles, Peter J. Eyre, and Jason M. Crawford.
- "2014 Cases That May Change Suspension, Debarment Practice," Law360 (January 5, 2015). Co-Authors: David B. Robbins and Laura Baker.
- "Embracing Mandatory Disclosures Can Save Contractors Time, Trouble, and Legal Fees," National Defense Magazine (June 2014). Author: David B. Robbins.
- "Suspension, Debarment And Fraud Response: 2013 In Review," Law360 (December 16, 2013). Author: David B. Robbins.
- "What Will the New Year Bring: Compliance, Ethics, Suspension/Debarment," Crowell & Moring Webinar (January 7, 2015). Presenters: Peter Eyre and Richard Arnholt.
- "Breaking News – Key Elements of Crisis Management," OOPS 2014, Crowell & Moring's 30th Annual Ounce of Prevention Seminar, Washington, D.C. (May 13-14, 2014). Moderator: Daniel R. Forman; Presenters: Richard Arnholt, Peter Eyre, David J. Ginsberg, David C. Hammond, Philip T. Inglima, and Gail D. Zirkelbach.
- "Understanding Suspension and Debarment," Federal Publications Seminars (February 18, 2014). Presenters: Peter Eyre and Richard Arnholt.
- "Compliance and Ethics for Government Contractors," Federal Publications Seminars (February 5, 2014). Presenters: Peter Eyre and Olivia Lynch.
- "Suspension and Debarment," OOPS 2013, Crowell & Moring's 29th Annual Ounce of Prevention Seminar, Washington, D.C. (May 15-16, 2013). Moderator: Angela B. Styles; Presenters: Peter Eyre, Richard Arnholt, and James G. Peyster.
- "An Insider's Guide to Recent Suspension, Debarment, Procurement Fraud, and Compliance Developments," National Contract Management Association (NCMA)/South Bay Chapter Grand Opening Workshop and Dinner Meeting, Los Angeles, CA (September 23, 2014). Executive Key Note Speaker: David B. Robbins.