Debarment Solutions Institute
Meeting the Needs of Business, Industry,
Government Non-profits,
Government,
Non profits Individuals,
Individuals and
the Legal Community
“If you go about your representation
attending
tt di tto th
the criminal
i i l and
d civil
i il iinterests
t
t off
your client only to run into a suspension or
d b
debarment
t as an afterthought,
ft th
ht you may find
fi d
the criminal and civil matters pale in
comparison
i
tto this
thi administrative
d i i t ti sanction.
ti
Debarment is, in fact, the tail that wags the
d ”
dog.”
John Pavlick, Esq.
(1947 2007)
(1947-2007)
The Debarment Puzzle
Regulations
Statutes
J di i l
Judicial
Opinions
Informal
Practices
OMB Interagency Suspension
and Debarment Committee
(ISDC)
Interagency Suspension and
Debarment Committee
Federal Law
Enforcement Training
Center
National Procurement
Fraud Task Force
NPFTF
OMB
FLETC
DOJ
SDOs
OIG
Justice
J
ti Department
D
t
t
Criminal & Civil Policy
Offices off the
Offi
th
Inspectors General
13
Overview of the
Federal Debarment System
BASIC TERMINOLOGY
“PROCUREMENT”
OCU
Contracts, subcontracts and
related transactions in which the
Federal Government acquires
goods and services for its own
use.
“NON-PROCUREMENT”
O
OCU
Grants,
G
t loans,
l
subsidies,
b idi
loan
l
guarantees, price supports, leases,
cooperative agreements, technical
assistance,, sales and a wide range
g
of Federally-provided benefits to
accomplish a public purpose (i.e.,
(i e
(everything not covered by the FAR).
“DEBARMENT”
The exclusion of an individual,
y from
business or other entity
participating in Federal procurement
and/or non
non-procurement
procurement transactions.
“SUSPENSION”
SUS
SO
The “temporary” exclusion of an
individual, business or other entity
f
from
participation
i i
i in
i Federal
F d
l
procurement and/or non-procurement
transactions pending conclusion of
an investigation, legal, debarment or
other proceeding.
“FAR”
Acronym ffor th
A
the F
Federal
d
l
Acquisition Regulation. It is found at
Title 48 of the Code of Federal
Regulations
g
(CFR).
(
) Procurement
suspension and debarment rules are
located at 48 CFR Part 9
9, Subpart 9
9.4.
4
“NCR”
C
Acronym ffor th
A
the F
Federal
d
l NonN
procurement Common Rule. It is
found at Title 2 of the Code of Federal
Regulations
g
(CFR).
(
) Non-Procurement
suspension and debarment rules are
located at 2 CFR Part 180
180.
“SDO”
S O
Acronym ffor th
A
the S
Suspending
di and
d
Debarring Official. These are the
official(s) authorized by a Federal
Department
p
or Agency
g
y to impose
p
a
suspension or debarment.
“ADMINISTRATIVE
S
DEBARMENT”
An exclusion from Federal
procurementt and/or
d/ non-procurementt
transactions at the discretion of an
SDO. It is an inherent authority and
governed
go
e ed by the
t e FAR a
and/or
d/o the
t e NCR.
C
“STATUTORY
S
U O
DEBARMENT”
An exclusion
A
l i from
f
Federal
F d
l
procurement and/or non-procurement
transactions imposed by Congress.
It is authorized and g
governed by
y
statute, and often (though not always)
mandatory.
mandatory
“EPLS”
S
Acronym ffor th
A
the E
Excluded
l d d Parties
P ti
List System. This is the Federal data
base used by the Government to
enforce its suspension
p
and debarment
orders.
FEDERAL GOVERNMENT
BLACKLIST SYSTEM
GSA
EPLS
EXCLUDED PARTIES LIST SYSTEM
www.epls.gov
FEDERAL BLACKLIST
B
U
S
I
N
E
S
S
E
S
GSA
EPLS
INDIVIDUALS
N
O
N
P
R
O
F
I
T
S
FEDERAL BLACKLIST
I f i Oil Co.
Inferior
C
Dishonest
Incompetent
p
Compliance or Financial Risk
FEDERAL GOVERNMENT
BLACKLIST SYSTEM
Binding on the Federal Government
GSA
Binding on most Contractors and
Recipients of Assistance
Publically Available on the Web and
Usable by Anyone Wishing to
use it.
it
FEDERAL GOVERNMENT
BLACKLIST SYSTEM
DOD
ARMY
GSA
EPLS
DLA
NAVY
FEDERAL GOVERNMENT
BLACKLIST SYSTEM
GSA
USDA
EPLS
FEDERAL GOVERNMENT
BLACKLIST SYSTEM
GSA
EPLS
ENFORCEMENT
FEDERAL GOVERNMENT
BLACKLIST SYSTEM
GSA
EPLS
EPLS
Company
or
Individual
Name
the
I f i Oil & G
Inferior
Gas IInc.
EPLS
Debarred, Suspended,
p
etc.
Basis for Ineligibility
p of Sanction
Scope
Cognizant Agency
Contact Person
the
I f i Oil & G
Inferior
Gas IInc.
EPLS
Debarred, Suspended,
p
etc.
R
Reference
f for Ineligibility
Basis
p of Sanction
Scope
DBAs
& Other Names
Cognizant
Agency
Affiliates
Contact
Person
p
& Employees
p y
Principals
Imputed Conduct
EPLS Exclusions
I. Administrative
Federal Contracts
Regulations
Federal Assistance
Regulations
EPLS Exclusions
I. Administrative
Federal Contracts
Regulations
Federal Assistance
Regulations
II. Statutory
Wage, Hour and
Labor Conditions
Protection of the
E i
Environment
Drug
g Enforcement
Immigration
Health Care Fraud
Administrative S &D
Contracts
Assistance
48 CFR Subpart
p
9.4
2 CFR Part 180
Procurement
FAR
ALL Benefits
not Covered by
the FAR
Similar Rules, but NOT Identical
Administrative S &D
48 CFR Subpart
p
9.4 • Similar but Separate
Rules
R
l
Procurement
FAR
• Contain Substantive
Differences
2 CFR Part 180
Non-Procurement
NCR
• Format and Other
T h i l Differences
Technical
Diff
Exclusion under the FAR
Procurement
Precludes
48 CFR Part 9
(FAR)
• Prime Contracts
• Approved Subs
• Non-Approved
Subs > $30k
• Agent
ge t o
or Rep.
ep
• Surety
• Options
Exclusion under the NCR
Precluded
• Recipient any tier
• Contracts
C t t and
d
Approved Subs
• Non-approved
subs ≥ $25k*
• Principal or Key
p y
Employee
• Incremental Funds
NonProcurement
2 CFR Part 180
(NCR)
Sec. 2455 Federal Acquisition
S
Streamlining
li i A
Act off 1994
Procurement
NonProcurement
48 CFR Part 9
(FAR)
2 CFR Part 180
(NCR)
RECIPROCITY
Actions are Discretionary
Procurement
NonProcurement
48 CFR Part 9
(FAR)
2 CFR Part 180
(NCR)
Limitations on SDO
• Establishing a cause to suspend or
debar does not compel imposition of the
sanction;
• SDO may
y not use the sanction as
punishment;
• SDO must have sufficient nexus to
justify use of the sanctions; and
• SDO must consider mitigating factors
Causes of Action
• Must involve a matter relevant to
performance under a procurement or nonprocurement transaction
Causes of Action
• Must involve a matter relevant to
performance under a procurement or nonprocurement transaction
• Can be criminal, civil, audit or administrative,
but must relate to integrity or competence
Causes of Action
• Must involve a matter relevant to
performance under a procurement or nonprocurement transaction
• Can be criminal, civil, audit or administrative,
but must relate to integrity or competence
• Need not have occurred in a Federal
transaction
Rule of Thumb
• Fraud
• Waste
• Abuse
• Poor Performance
• Noncompliance
• Debt
Sufficiency of Nexus
Degree of relationship between—
a.) The person against whom action is
taken
b ) The alleged conduct or condition of
b.)
interest, and
c.) Potential impact on a Government
procurement or non-procurement
transaction
Nexus Triangle
Respondent
Cause or
Condition
Potential Impact
on Transaction
Scope of Exclusion
• Covers all facilities and operations of
the legal entity
• May be enlarged to include any
affiliates
• Mayy be extended to others to whom
misconduct is imputable
Due Process
• Notice
• Opportunity to present matters in
opposition
• Written decision based on an
administrative record
Suspension
• Agency may suspend procurement
and non
non-procurement
procurement eligibility
pending outcome of an investigation,
l
legal
l or d
debarment
b
proceeding.
di
• Same effect as being debarred.
Suspension Requirements
1. “Adequate evidence” that a cause for
debarment mayy exist
AND
2. Immediate action is needed to protect
Government interests
Suspension
E
Exceptions
ti
tto P
Process
•
Notice need not reveal the
particulars of the offense or condition
p
•
Respondent
R
d t may b
be d
denied
i d a ffactt
finding hearing
•
Evidence may be held “in
in-camera
camera”