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Amended Version of the SUSPEND Act Clears House Oversight Committee and Aims to Change Suspension and Debarment Procedures for Federal Contractors




by:
Maria L. Panichelli
Michael H. Payne
Cohen Seglias Pallas Greenhall & Furman PC - Philadelphia Office

 
November 6, 2013

Previously published on October 30, 2013

This past July, we told you about an important bill known as the Stop Unworthy Spending Act (“SUSPEND Act”). That bill, which was introduced by House of Representatives oversight committee chairman Darrell Issa, aimed to dramatically overhaul the suspension and debarment (“S&D”) procedures applicable to federal contractors. Currently, the suspension and debarment of contractors is handled by each individual contracting agency, by its respective S&D office. But under Issa’s SUSPEND Act, these forty-one individual offices would be consolidated into one, centralized “Board of Civilian Suspension and Debarment.” That board would be overseen by the General Services Administration. In addition to consolidating the forty-one civilian agency S&D offices, the Act aimed to standardize agencies’ S&D policies, and increase transparency.

On October 29, 2013, the House of Representatives’ Oversight Committee passed an amended version of the SUSPEND Act. According to an October 28, 2013 press release, the amended version of the bill “reflects extensive stakeholder and academic community feedback,” and differs from the draft version of the bill circulated in February in several key respects. Among the additions to the new version of the bill is a timeliness rule, which requires the new, consolidated “Board of Civilian Suspension and Debarment” to consider cases within thirty days of referral. The board would also be required to render a final decision on those cases within six months of referral. S&D procedures relating to wartime operations and other time-sensitive matters would be further expedited. The new bill would also require agencies to coordinate their S&D efforts; it encourages the agencies to utilize a range of fraud remedies, including civil and criminal enforcement, with an emphasis on the timely recovery of funds.

Pursuant to the new bill, over forty smaller executive agency S&D offices would be centralized under the control of the Board of Civilian Suspension and Debarment. In contrast, larger agencies and military departments would be permitted to operate their own independent S&D offices, as long as they can demonstrate that they are able to run an effective S&D program. Overall, proponents say, the SUSPEND Act will improve the consistency and transparency of governmental S&D programs by:

  • Combining the separate S&D regulations governing contracts and grants into a single, comprehensive regulation;
  • Mandating a single government-wide case management system to track cases and make publicly available all final resolutions of S&D cases;
  • Enhancing oversight to ensure the accuracy and completeness of a government-wide database of firms that should not receive awards;
  • Speeding up referrals for S&D, including the identification of contractors and grantees that repeatedly fail to perform; and
  • Ensuring accused parties have the opportunity to be heard prior to any adverse action being taken against them by requiring “show cause” letters.

In our view, the new S&D framework proposed in the SUSPEND Act is a considerable improvement over the current S&D system, if only because of the shortened governmental response deadlines. Under the current system, government contractors who were unfairly suspended or proposed for debarment are often forced to wait months before the matter is resolved. Hopefully, this bill could remedy that problem. We will keep you posted on the progress of the bill.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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