Suspension and Debarment Concepts, Rules, and Process

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RECOVERY OVERSIGHT OFFICE. Suspension and Debarment Concepts, Rules, and Process. OFFICE OF INSPECTOR GENERAL U.S. DEPARTMENT OF THE INTERIOR. introduction. Government contracts and discretionary assistance are awarded only to “presently responsible” parties. RECOVERY OVERSIGHT OFFICE. - PowerPoint PPT Presentation

Text of Suspension and Debarment Concepts, Rules, and Process

  • RECOVERY OVERSIGHT OFFICEOFFICE OF INSPECTOR GENERALU.S. DEPARTMENT OF THE INTERIOR

  • RECOVERY OVERSIGHT OFFICE Government contracts and discretionary assistance are awarded only to presently responsible parties.

  • RECOVERY OVERSIGHT OFFICE Suspension agency official temporarily excludes a contractor from government contracting and government-approved subcontracting, or temporarily excludes a person from participating in covered transactions

    Debarment agency official excludes a contractor from government contracting and government-approved subcontracting for a specific time, or excludes a person from participating in covered transactions for a specific time

  • RECOVERY OVERSIGHT OFFICEAdministrative remedy decision about significant business risk of a person or organization as a potential contractor or participant

    By inherent authority necessarily incidental to effective administration of a statutory scheme Gonzalez v. Freeman, 334 F.2d 570 (D.C. Cir. 1964)

    By express authority derived from a statute or an executive order

  • RECOVERY OVERSIGHT OFFICE The remedy is consistent with and supports a basic objective of the Recovery Act which is prevention, as well as detection, of poor performance, fraud, waste, and abuse

  • RECOVERY OVERSIGHT OFFICE as punishment;

    to coerce acceptance of civil or criminal settlements; or

    to embarrass, harass or get even

  • RECOVERY OVERSIGHT OFFICE

  • RECOVERY OVERSIGHT OFFICE Three key rule differences:

    FAR Notice of Proposed Debarment (NPD) has immediate effect but nonprocurement NPD does not

    Award ineligibility under FAR limited to prime contract and approved subcontracts

    Lower tiers reached under nonprocurement rule

  • RECOVERY OVERSIGHT OFFICEReciprocal effect of action under rules P.L. 103-355, Section 2455 and E.O. 12689

    Prospective effect new awards only

    Awarding officials must separately decide proper action on existing awards

  • RECOVERY OVERSIGHT OFFICEFor contractors (individuals or companies) proposed for debarment, suspended, or debarred - excluded from receiving new contracts and federally approved subcontracts

    For participants (individuals or organizations) no new awards

  • RECOVERY OVERSIGHT OFFICEIneligible persons cannot be agents, representatives, or principals, including key employees for award performance purposes

    Names entered into the web-based Excluded Parties List System: http://www.epls.gov

    Awarding officials must check before making new awards

  • RECOVERY OVERSIGHT OFFICE

  • RECOVERY OVERSIGHT OFFICEOffense-based causes from a conviction or civil judgment for:

    Commission of fraud or criminal offense in connection with obtaining, attempting to obtain, or performing a public contract, subcontract, or nonprocurement award

    Violation of Federal or State antitrust statues relating to offer submissions

  • RECOVERY OVERSIGHT OFFICE

    Embezzlement, theft, forgery, bribery, records falsification and destruction, false statements, Federal criminal tax violation and tax evasion

    Stolen property

    Intentional violation of Made in America laws

  • RECOVERY OVERSIGHT OFFICE

    Any other offense indicating a lack of business integrity or honesty that seriously and directly affectspresent responsibility

    Conviction or civil judgment is cause for debarment (including deferred prosecution)

  • RECOVERY OVERSIGHT OFFICE

    Fact-based causes:

    Serious violation of terms of government award such as willful failure to perform, or history of failure to perform on one or more award, Drug Free workplace laws, Buy America, and certain tax delinquencies

  • RECOVERY OVERSIGHT OFFICE

    DHS Secretary or AG finding of Immigration and Nationality Act (INA) employment provisions noncompliance (not reviewable in debarment proceedings)

    Any other cause of so compelling and serious nature that it affects present responsibility

  • RECOVERY OVERSIGHT OFFICE

    Fact-based cause (other than INA): by preponderance of evidence

    Government has burden of proof

    SDO must conduct fact-finding on facts material to action and genuinely in dispute

  • RECOVERY OVERSIGHT OFFICENotice;

    Opportunity to be heard;

    Cross-examine witnesses present in fact-finding; and

    Written decision based on an administrative record

  • RECOVERY OVERSIGHT OFFICEStandards of conduct

    Voluntary disclosure

    Internal investigation

    Full cooperation

    Paid costs/ restitutionDisciplined employee

    Agreed to implement remedial actions

    Ethics training

    Adequate time to eliminate causes

    Management recognition of problem

  • RECOVERY OVERSIGHT OFFICEAction to protect integrity of contracts and assistance award process at earliest stage prior to completion of record on whether misconduct exists

  • RECOVERY OVERSIGHT OFFICE Two Components:

    Adequate evidence (probable cause) that upon investigation/legal proceedings cause for debarment will exist

    Met by either criminal charging document or facts

    Necessity for immediate action to protect program award integrity interests pending completion of legal proceedings

  • RECOVERY OVERSIGHT OFFICEAIU gathers information on possible S&D candidates

    DOI assistance programs can also be a source of information

    Reliable record-keeping of key documents critical

  • RECOVERY OVERSIGHT OFFICEAIU coordinates lead agency through the Interagency Suspension and Debarment Committee

    AIU prepares Action Referral Memo (ARM) and attachments and refers to SDO for notice issuance action

    AIU tracks action - may provide further support, as appropriate

  • RECOVERY OVERSIGHT OFFICE Offense-based actions:Final indictment, information, or other charging document

    Plea agreement, and, if separate, supporting factual resume

    Conviction order

    Fact-based actions:

    If contract or grant involved, copies of basic documents and evidence

  • RECOVERY OVERSIGHT OFFICESpecial thanks to the Environmental Protection Agency (EPA)

    Stanley StockerCompliance SpecialistAcquisition Integrity UnitRecovery Oversight Office/OIG

    Overview

    DOI can play role

    Questions*- 1884: Congress reqd Exec. Branch award Ks to lowest Responsible bidder

    - 1920s: Debarment in statutes: Buy American Act (American materials), Davis-Bacon (labor), Walsh-Healey (work conditions) *CT = nonprocurement or procurement transaction; either primary tier (b/t Fed agency and person) or lower tier (b/t particpant in CT and another person)

    Debra Sonderman*- POOR PERFORMANCE, FRAUD, WASTE, ABUSE, AND NONCOMPLIANCE

    -promote compliance with socio-economic policies (e.g. worker health and safety, environmental protection, anti terrorism, illegal immigration)*Detection

    Prevention

    Reporting*If used as punishment: (examples of when used as punishment)

    - Award of K or grant

    Injunction against use of sanction

    personal/organization liable for damages*Examples: grants, cooperative agreements, scholarships, fellowships, loan guarantees.- Initial focus = Contracts (FAR); in 1988 Common Rule (non-procurement S&D); revised in 1999*DOI adoption of OMB rule limits exclusion to the participant and first-tier contracts under a participant.

    Lower tiers are not reached under DOIs rule.*HUD active in S&D, but limited only to HUD

    **GSA managed*GENERAL SERVICES ADMINISTRATION (GSA) MAINTAIN THE EPLS

    Company at Bottom

    Pia Scott DOI Contact*- Bribery in Attempt to Secure Bldg K*Conviction or Civil Judgment (contd) receiving stolen property

    *Conviction or Civil Judgment (contd)

    D Pros = no prosecution if treatment, for example.*

    - No Conviction**

    Bribery case: No Dispute over Cash in Briefcase

    Only how that undisputed fact should be viewed*Notice = in writing/identify basis of action; PMIO (pres. Mattters in Opposition)/fact-finding; witness testimony (fact-finding);

    written decision on admin. Record;

    APA = arbitrary and capricious or abuse of discretion. *

    - contractor/participant comes to us and discloses misconduct*Suspension of IBM*-Scope of suspension same as for debarment for imputation and affiliation.-Timing: can act at very early investigation stage.-Duration: temporary pending completion of legal and debarment proceeding.-Cannot be indefinite substitution for debarment. *Current process.*Some horse-trading at ISDC, who best position to take action*

    2 CFR Part 180.400 (page 23) Responsibilities of Federal Agency Officials

    2 CFR Part 1400.437 (page 218) - Responsibilities of Federal Agency Officials **