Government Contracting Database

The government uses the sanction of debarment to ensure that it conducts its procurement activities with “responsible” contractors. (See FAR 9.4 for Policies and Procedures). The serious nature of debarment, however, requires that it be imposed only in the public interest for the government’s protection and not for punishment. FAR 9.402(b). Therefore, the primary consideration in imposing this sanction is the contractor’s present and likely future responsibility” and not the mere fact that the contractor has engaged in proscribed activity. Appeal of Alberta, AGBCA No. 93-189-7, 94-2 BCA ¶ 26923 (citing Roemer v. Roffman, 419 F.Supp 130 (D.D.C. 1976)).

The government may debar a contractor only for the causes set forth in FAR 9.406-2, including conviction or civil judgment regarding offenses showing lack of business integrity, serious violation of contract terms, and other causes showing a lack of present responsibility. Because debarment is so severe a sanction, however, the government bears a heavy burden in establishing a cause for debarment under FAR 9.406-2(c). Whereas the government may suspend a contractor upon “adequate evidence” regarding its present responsibility, see FAR 9.407-2, debarment must be premised on a “preponderance of the evidence.” See FAR 9.406-3(d)(3). Adequate evidence has been likened to the probable cause necessary for an arrest, a search warrant, or a preliminary hearing and generally must be more than uncorroborated suspicion or accusation. See Conrad Mikulec v. Dept. of the Air Force, No. 84-2248 (D.D.C. June 27, 1985).

The existence of a cause for debarment, however, does not necessarily require that the contractor be debarred; the seriousness of the contractor’s acts or omissions and any mitigating factors should be considered in making any debarment decision. FAR 9.406-1(a). Therefore, the regulations clearly indicate that debarment is discretionary and is not to be an automatic consequence of a recognized cause for debarment.

Pursuant to the procedures established in FAR 9.406-3, a contractor who receives a notice of proposed debarment may submit argument in opposition, including any additional information that may raise a genuine dispute over the material facts. FAR 9.406-3(c)(4). In actions where the proposed debarment is not based upon a conviction or judgment and the contractor’s submission is found to raise a dispute over facts material to the debarment, the agency shall “afford the contractor an opportunity to appear with counsel, submit documentary evidence, present witnesses, and confront any person the agency presents.” FAR 9.406-3(b)(2)(i). Where such additional proceedings are necessary, the government must prepare written findings of fact in conjunction with its debarment decision. FAR 9.406-3(d)(2).

Debarment is inappropriate if the contractor can establish that, notwithstanding any past nonresponsible conduct, he no longer constitutes a business risk. See Peter Kiewit Sons’ Co. v. U.S. Army Corps of Engineers, 714 F.2d 163 (D.C. Cir 1983); Robert F. Hayter, HUD BCA 82-697-D25, 83-1 BCA ¶ 16,389. Therefore, the Board has refused to debar a contractor convicted of submitting fraudulent invoices to the government where his subsequent behavior showed that he was presently responsible. Lawrence C. Shank, HUDBCA 82-724-D43, 83-1 BCA ¶ 16,439. Recognizing that the contractor’s role in the fraud was unjustifiable and evinced a serious lack of responsibility at the time of the transgression, the Board in Shank held that, when viewed in light of the contractor’s conduct since his criminal activity, the proposed debarment constituted a penalty and was not necessary to protect the public interest.

Updated: July 6, 2018