Report of the Commission on Government ... - Bayhdolecentral

Legal and Administrative Remedies
being considered and <strong>the</strong> period <strong>of</strong> time during
which <strong>the</strong> contractor may present -information
for consideration by <strong>the</strong> agency. Evidence
may be presented ir; person, in writing, or
through a representative and usually must
be presented within 30 days, although this
period can be extended upon request. If a suspension
is not in effect at <strong>the</strong> time, <strong>the</strong> notice
<strong>of</strong> proposed debarment will act as such, and
no contracts will be awarded until determination
is made.
Finally, <strong>the</strong> contractor must be notified in
writing within ten days if a debarment is
put into eff-ect. The reasons and time period
for <strong>the</strong> debarment must be stated, and <strong>the</strong>
contractor must be informed that <strong>the</strong> action
is effective throughout <strong>the</strong> Department <strong>of</strong> Defense.
If <strong>the</strong> debarment is not to be effected,
<strong>the</strong> contractor must be notified in writing as
soon as that decision is made.
COMPARATIVE CAUSES AND PROCEDURES
FOR SUSPENSION
Suspension is intended to avoid fraud,
criminal <strong>of</strong>fenses, Federal antitrust violations,
embezzlement, and o<strong>the</strong>r business-related dishonesty
incident to public contracts. "Causes
for Suspension,"" is <strong>the</strong> same as its counterpart,
"Causes for Debarment," ao except that a
contractor need only be suspected <strong>of</strong> <strong>the</strong> <strong>of</strong>fenses
to be suspended.
The period <strong>of</strong> suspension is limited to 12
months unless an Assistant Attorney General
requests continuance. In this event, six months
may be added, but in no case will suspension
continue beyond 18 months unless "prosecutive
action has been initiated within that
period," in which case suspension continues
until legal proceedings are completed.s- The
scope <strong>of</strong> suspension is <strong>the</strong> same as for debarment.
A firm or individual is entitled to written
notice <strong>of</strong> a suspension within ten days after
its effective date. The notice must describe
<strong>the</strong> irregularities on which <strong>the</strong> suspension is
based. However, <strong>the</strong> Government is not re-
19 ASPR 1-605.l.
20 ASPR 1-604.1.
21 ASPR 1-605.2. But see note 25, infra. for a ease in wbich<strong>the</strong>
Court <strong>of</strong> Appeals for <strong>the</strong> District <strong>of</strong> Columbia disapproved such a
suspension beyond one month.
quired to discuss its evidence but merely describe
it in general terms. The suspended
contractor must be told that <strong>the</strong> period <strong>of</strong> suspension
is temporary pending completion <strong>of</strong>
investigation and such legal proceedings as
may be appropriate. Bids and proposals will
not be accepted nor may contracts be awarded
unless <strong>the</strong> Government determines that such
action is in its best interest.
COMPARISON WITH FEDERAL
PROCUREMENT REGULATIONS
(FPR) PROCEDURES
There are some differences between <strong>the</strong> rules
established for debarment and suspension in
ASPR and <strong>the</strong> counterpart rules <strong>of</strong> FPR that
govern <strong>the</strong> activities <strong>of</strong> <strong>the</strong> civilian agencies.
Perhaps <strong>the</strong> most significant difference is that
<strong>the</strong> FPR, by stating as its goal <strong>the</strong> satisfaction
<strong>of</strong> "demands <strong>of</strong> fairness," in effect prescribes
a hearing." ASPR says merely that
"information in opposition to a proposed debarment
may be presented in person, in writing
or through representation."
There are no provisions in ASPR or FPR
for several <strong>of</strong> <strong>the</strong> elements <strong>of</strong> an adversary
hearing; for example, subpoena, rights to
cross-examination, and clear separation <strong>of</strong> functions
between those who propose debarment
and those who decide <strong>the</strong> issue. Suspension
rules in both regulations appear to be essentially
<strong>the</strong> same.
Executive Order-Equal Employment
Opportunity
Violation by a contractor <strong>of</strong> <strong>the</strong> Equal Opportunity
provision prescribed by Executive
Order 11246 and repeated in <strong>the</strong> rules issued
by <strong>the</strong> Secretary <strong>of</strong> Labor can result in debarment
<strong>of</strong> a noncomplying contractor. Responsibility
for administering <strong>the</strong> program was
assigned to <strong>the</strong> Department <strong>of</strong> Labor's Office <strong>of</strong>
Federal Contract Compliance (OFCC).
The Department <strong>of</strong> Labor's rules <strong>of</strong> practice,
to be followed prior to a debarment action
under <strong>the</strong> Executive order, call for a written
22 FPR 1-1.604-1 (b).
65