Download ppt - Suspension and Debarment Concepts, Rules, and Process

RECOVERY OVERSIGHT OFFICE

OFFICE OF INSPECTOR GENERALU.S. DEPARTMENT OF THE INTERIOR


Government contracts and discretionary assistance are awarded only to “presently responsible” parties.


• 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


• Administrative 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


• 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


• as punishment;

• to coerce acceptance of civil or criminal settlements; or

• to embarrass, harass or get even



• 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


• Reciprocal 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


• For 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


• Ineligible 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



• Offense-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


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


Any other offense “indicating a lack of business integrity or honesty that seriously and directly affects…present responsibility…”

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


• 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


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


• 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”


• Notice;

• Opportunity to be heard;

• Cross-examine witnesses present in fact-finding; and

• Written decision based on an administrative record


• Standards of conduct

• Voluntary disclosure

• Internal investigation

• Full cooperation• Paid costs/

restitution

• Disciplined employee

• Agreed to implement remedial actions

• Ethics training• Adequate time to

eliminate causes• Management

recognition of problem


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


• 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


• AIU gathers information on possible S&D candidates

• DOI assistance programs can also be a source of information

• Reliable record-keeping of key documents critical


• AIU 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


• 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


Special thanks to the Environmental Protection

Agency (EPA)