Today, I begin a five-part series on Suspension and Debarment, with Rodney A. Grandon, Managing Director at Affiliated Monitors, Inc., (AMI) the sponsor of this series. During a 27-year career with the US military and government, Grandon served as the Air Force’s Suspending and Debarring Official as well as a wide variety of other functions which gives him subject matter expertise into issues surrounding this topic. Over the next five podcasts I will be exploring several topics with Grandon including:
Part 1-Introduction to Suspension and Debarment;
Part 2-What is the difference between Suspension and Debarment?
Part 3-What is the convergence between Suspension & Debarment and the FCPA?
Part 4-What is a present responsibility determination?
Part 5-Remedies and Compliance in Suspension and Debarment.
The series begins with introduction to suspension and debarment.
On the GSA website, it states, “The suspension and debarment process protects the federal government from fraud, waste and abuse by using a number of tools to avoid doing business with non-responsible contractors. Suspensions, Proposals for Debarment, and Debarments are the most widely known tools as these actions are visible to the public”.
More generally, suspension and debarment are not civil or criminal matters resulting in a penalty being imposed on a particular party. Suspension and Debarment is an administrative matter. In a civil or criminal matter, the Department of Justice (DOJ) takes the lead in those actions which are contested litigated matters, with civil and criminal rules around evidence and procedure. While suspension and debarment have evidentiary and procedural considerations, they are much more informal. Grandon noted the rules basically say they should be as informal as it as is practicable under the circumstances.
Grandon also reiterated another key difference is the lack of a penalty. Suspension and debarment do not result in a penalty. In fact, the regulations make it very clear. They are used “only as a proactive protective measure, basically to protect the government’s interests from contractors that either don’t have the capability to perform or to provide the goods and services to be a suitable a business partner with the federal government.”
A final major distinction between a civil or criminal matter and suspension and debarment is they are within the hands of the given agency, as opposed to the DOJ or a US Attorney’s offices who have the lead in civil criminal actions. Conversely, when it comes to suspension and debarment, those actions are distributed across the various federal agencies. Each agency has its own Suspending and Debarring officials. Grandon noted they “have a lot of discretion that they can exercise in this process.”
I next inquired about the remedy of suspension and debarment itself: what is the process the government would go through to reach the point where they might invoke one of the remedies? Grandon noted the key in suspension and debarment is to protect the government’s interest. This means “when information is identified within the agency that a given contractor lacks the integrity or we suspect lacks integrity to be a good business partner for the government, or if a contractor fails to perform; the action an agency will begin to develop is a record of the issues involved.” There are a variety of tools an agency will use to develop a record including coordinating resources from the acquisition community, the investigators within the agency and the suspension and debarment community, which in most cases also has a responsibility for the agencies, fraud coordination or fraud remedies program.
The basic flow begins with the information to establish whether or not there is evidence that triggers a cause for the action and if there is evidence, then the decision can be made by the Suspending and Debarring official to initiate that action. Grandon noted, “information flow leads to whether or not to initiate the action. In the case of a suspension, the focus is usually on a matter that is still being investigated, as suspension is a temporary solution.” Debarment is more permanent.
Grandon concluded by noting that suspension and debarment, while being technically different, effectively impose the same conditions on the contractor that is the subject for the action. It is that the contractor is excluded from competing for or receiving award of federal contracts, federal grants and other federal financial assistance. The remedy of suspension and debarment can be very devastating. Grandon specifically said it has been “referred to as a potential death sentence for companies that are dependent on federal dollars for their revenues.” Yet that is not the basis for a decision which is “whether or not there’s a need to protect the government’s interest.”
Tomorrow we take up the differences between suspension and debarment.