Debarment, Defense of Fraud Investigations
The United States government is the world’s largest consumer of products and services. As such, it is no surprise that many contractors are eager to do business with the U.S. federal government and its various agencies and departments. However, the government sets high standards for contractors who will supply the federal government with products and services. There are a number of conditions and obligations that any government contractor must be able to satisfy if the organization wishes to have a continued contracting relationship with the government.
Government contractors that are unable or unwilling to live up to the responsibilities and requirements set forth by the U.S. government can face suspension or debarment proceedings. These actions are administrative in nature and should only be utilized to protect the public interest in federal acquisitions. Debarment and suspension should not be used as punishment.
However, government contractors who fail to satisfy their duties and obligations are at risk of facing an action for suspension or debarment. These are extreme remedies. If your business is facing these potential consequences an experienced and strategic government contracting attorney from Meredith & Narine may be able to mitigate the situation. To schedule a private consultation call 215-995-2769 or contact us online.
What Is a government Contractor Responsible for Providing?
A government contractor is required to have sufficient resources, including financial resources to perform the contract as offered. Furthermore, the organization must also have the experience, knowledge, and training necessary to actually carry out the specific terms and conditions of the contract. However, when allegations of procurement fraud are made or when the contractor performs poorly FAR 9.406-1 governs the determination of whether the contractor’s behavior fell below acceptable standards. Aspects used to guide the determination of contractor responsibility listed in the regulation include:
- Did the contractor conduct a full investigation into the matter? Did the contractor make these results available to the official conducting the debarment proceedings?
- Did the contractor disclose the potentially improper action in a timely manner?
- Did the contractor have effective internal controls?
- Was the contractor cooperative in the government investigation?
- Has the contractor implemented or agreed to implement remedial measures including additional training or procedures?
- If the contractor honestly understands the issue, its severity, and has taken steps to prevent a reoccurrence.
The government official in charge of the suspension or debarment proceeding will use a number of additional criteria to determine the appropriate course of action. Understanding the decisional criteria can help your business successfully meet this challenge.
When Can a Government Contractor Face Debarment Proceedings?
Debarment proceedings can generally be instituted due to the direct action of a government contractor. The government is also free to take action against those individuals affiliated with the suspended or debarred entity or individual. This is known as vicarious liability.
For debarment due to direct actions by the contractor, valid grounds to commence such a proceeding include:
- When the contractor has been convicted of a crime.
- When the contractor is liable for a civil judgment for certain crimes or misconduct.
- Willful or repeated violations of the terms of a government contract can result in debarment if a preponderance of the evidence supports such finding.
- Any other misconduct or violation that affects the responsibility of the contractor.
Debarments can also be imposed even if the individual or organization has not committed any direct act.
Debarments should not typically exceed three years. If a suspension was previously ordered, that suspension should be considered when deciding the debarment period. However, the propensity for certain criminal or fraudulent behaviors can be imputed to the larger organization based on an association with an individual who has engaged in less than reputable behavior that constitutes actionable misconduct falling below that standards required by the FAR program.
Facing Debarment Proceedings?
If you, your business, or an associated entity is facing debarment proceedings due to alleged federal acquisition fraud, the experienced and strategic government contracting lawyers of Meredith & Narine can fight to protect your business interests. We understand that government contracting matters can represent a significant portion of a company or corporation’s revenues and strive to protect your bottom-line. To schedule a confidential debarment proceeding consultation call 215-995-2769 or contact us online.