Suspension or Debarment Proceedings

What do suspension or debarment proceedings entail, and which laws and rules apply?

Suspension and debarment proceedings are mechanisms used by federal and state agencies to prevent businesses and individuals from participating in government contracts due to unethical conduct, fraud, or other misconduct. The rules governing suspension and debarment in Florida are in the Florida Administrative Code (FAC) Rule 60A-1.006 and Chapter 287 of the Florida Statutes. In contrast, federal suspension and debarment rules are in the Federal Acquisition Regulation (FAR) Subpart 9.4.

Suspension proceedings are temporary measures to exclude a contractor from federal or state contracts until the outcome of an investigation or legal proceeding. Debarment proceedings, however, are more permanent, lasting for a specified period, typically not exceeding three years. The suspension and debarment processes generally involve an administrative review, an opportunity for the contractor to contest the allegations, and a final decision by the debarring or suspending official.

Need help defending against a suspension or debarment proceeding? Schedule your consultation today with a top government procurement attorney.

How can businesses effectively navigate suspension or debarment proceedings?

Businesses should consider the following strategies:

Develop a compliance program: Establish a robust compliance program that includes internal controls, regular training, and a clear code of conduct to minimize the risk of unethical behavior and violations of procurement regulations.
Promptly address issues: If a potential problem arises, quickly investigate, document findings, and take appropriate corrective actions. Demonstrating a commitment to addressing misconduct can help mitigate the consequences of a suspension or debarment action.
Engage legal counsel: Retain experienced legal counsel familiar with government procurement and bid protest legal services to assist in navigating the complex suspension or debarment process and effectively represent the business’s interests.
Cooperate with authorities: Cooperate with investigating agencies, provide requested information, and maintain open lines of communication. Cooperation may result in a more favorable outcome or help avoid suspension or debarment altogether.
Prepare a persuasive response: If faced with a suspension or debarment notice, prepare a comprehensive and compelling written response addressing the allegations and presenting evidence of mitigating factors, corrective actions, and the business’s commitment to ethical practices.

What issues regarding suspension or debarment proceedings commonly lead to litigation?

The following issues commonly lead to litigation:

Inadequate due process: Suspension and debarment proceedings must adhere to the principles of due process. Inadequate notice, lack of opportunity to contest the allegations, or insufficient time for a meaningful response can result in litigation.
Arbitrary or capricious decision-making: Decisions in suspension and debarment proceedings must be based on substantial evidence and cannot be arbitrary or capricious. When decisions appear unreasonable or unsupported, litigation may follow.
Insufficient factual basis: An adequate factual basis must support a suspension or debarment decision.
Improper use of discretion: Suspension and debarment officials are vested with discretion, but they must exercise that discretion within the bounds of applicable laws and regulations. Misuse of discretion can lead to litigation.
Erroneous legal interpretations: Incorrect interpretations of applicable laws or regulations may result in litigation if they negatively impact the outcome of suspension or debarment proceedings.

When a set of facts is appropriate for litigation, there are many paths a claimant may take. We are value-based attorneys at Jimerson Birr, which means we look at each action with our clients from the point of view of costs and benefits while reducing liability. Then, based on our client’s objectives, we chart a path to seek appropriate remedies.

To determine whether your unique situation may necessitate litigation, please contact our office to set up your initial consultation.

Frequently Asked Questions

What is the difference between suspension and debarment?

Suspension is a temporary exclusion of a contractor from government procurement, typically pending the completion of an investigation or legal proceedings. Debarment is a more severe, long-term exclusion based on a determination that the contractor is not responsible or has engaged in misconduct. Both actions aim to protect the public interest and maintain the integrity of government procurement processes.

Can a contractor challenge a suspension or debarment decision?

Yes, a contractor may contest a suspension or debarment decision. In Florida, contractors can challenge suspension or debarment decisions under the Florida Administrative Procedure Act. At the federal level, contractors may contest the decision by submitting written opposition and requesting a hearing.

How long does a suspension or debarment last?

Suspension typically lasts for a temporary period until the completion of an investigation or legal proceedings. Debarment, however, lasts for a specified period determined by the debarring official, usually not exceeding three years.

Are suspension and debarment proceedings public?

Suspension and debarment proceedings can be confidential, but specific information is typically made public. For example, the System for Award Management (SAM) maintains a publicly accessible list of excluded parties, which includes suspended and debarred contractors.

Can a suspended or debarred contractor still perform existing contracts?

A suspension or debarment decision usually does not affect existing contracts, but it may impact a contractor’s ability to obtain new contracts or exercise options for contract extensions. Therefore, it is essential to review the specific terms of the suspension or debarment decision and the contract terms to determine the potential impact on existing agreements.

Have more questions about a government procurement-related situation?

Crucially, this overview of suspension or debarment proceedings does not begin to cover all the laws implicated by this issue or the factors that may compel the application of such laws. Every case is unique, and the laws can produce different outcomes depending on the individual circumstances.

Jimerson Birr attorneys guide our clients to help make informed decisions while ensuring their rights are respected and protected. Our lawyers are highly trained and experienced in the nuances of the law, so they can accurately interpret statutes and case law and holistically prepare individuals or companies for their legal endeavors. Through this intense personal investment and advocacy, our lawyers will help resolve the issue’s complicated legal problems efficiently and effectively.

Having a Jimerson Birr attorney on your side means securing a team of seasoned, multi-dimensional, cross-functional legal professionals. Whether it is a transaction, an operational issue, a regulatory challenge, or a contested legal predicament that may require court intervention, we remain tireless advocates at every step. Being a value-added law firm means putting the client at the forefront of everything we do. We use our experience to help our clients navigate even the most complex problems and come out the other side triumphant.

If you want to understand your case, the merits of your claim or defense, potential monetary awards, or the amount of exposure you face, you should speak with a qualified Jimerson Birr lawyer. Our experienced team of attorneys is here to help. Call Jimerson Birr at (904) 389-0050 or use the contact form to schedule a consultation.