Legal Insider: Defending individual government contractors in debarments

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq

Our lawyers defend government contractors (private employees that work for government contractors) in debarment cases before federal agencies like the Department of Defense and others.

What is a Debarment?

Debarments are government actions taken against government contractors related to conduct. It is the government’s duty to protect itself from alleged fraud, waste, and abuse by ensuring that it avoids doing business with non-responsible contractors. Debarments can last a period of years. Suspensions result in temporary contractor ineligibility to work on government contracts. Suspensions and debarments are not for the purpose of punishing a government contractor but to protect the public.

Effect of Debarments and Suspensions

Debarments and suspensions have a major impact on individual government contractors. These can include removal from a government contract (and potential termination from employment) and potential security clearance issues. Government contractors that are debarred or suspended are not eligible to work on government contracts, unless a compelling reason exists, which can be a very high bar to meet. The government takes a straightforward approach to debarment cases and provides a fair appeals process.

Typical Reasons for Debarment (of Suspension of Eligibility)

The most common reasons for debarment or suspension include:

• Criminal Convictions or Pending Charges
• Civil Judgments and/or Liens
• Evidence of Crimes
• Specific Misconduct (e.g. time and attendance mischarging)

Debarment/Suspension Process

At the start of the disbarment process, the government will issue a show cause letter requiring a government contractor to demonstrate why they should not be suspended or debarred. These proceedings are completed relatively quickly, and individual government contractors must respond in order to avoid a negative outcome.

The government will generally provide a show cause letter to the individual and an initial chance to respond to the allegations, along with a memorandum in support of the proposed debarment. If the case proceeds, the individual contractor will have to respond to a notice of proposed debarment from the government.

Responding to Debarments

In responding to a notice of proposed debarment, it is important to fully address all allegations of misconduct or impropriety, and hire a debarment lawyer to assist them. We often find it helpful to submit letters of support on behalf of the individual, awards, commendations and other materials which demonstrate the character and integrity of the individual.

Additionally, cooperation in related investigations, completion of ethics training in a relevant area, acceptance of responsibility and other mitigating arguments should be made to the Debarring Official. These may help to convince the government that debarment is not needed or that mitigation to some other penalty is appropriate.

Following the response period, a decision will be rendered by the Debarring Official. They can uphold, mitigate, or terminate the debarment. Further, if a negative finding is upheld, there is sometimes the ability to seek reconsideration of a negative debarment finding. The process can involve contacting the Debarring Official with new or other evidence and seeking to reduce the debarment.

It is important to have legal representation in this process. If a negative finding is reached, leaving the person debarred from government contracts, that finding will be placed in the debarment database, known as the System for Award Management (SAM).

Contact Us

If you are in need of legal representation in a proposed debarment or debarment appeal please contact our office at 703-668-0070 or through our contact page to schedule a consultation.