Our Government Contracts team has approximately two decades of experience and involvement with several dozen agency administrative agreements and independent monitoring thereunder with various civilian and military agencies. Our national government contracts team, which includes our debarment lawyers, is particularly well-suited to serve as independent monitors under federal agency administrative agreements in the context of suspension and debarment cases governed by Federal Acquisition Regulation (FAR) Subpart 9.4 or the Non-Procurement Common Rule (2 C.F.R. Part 180).
Our team is led by true “insiders” in the government debarment space. In light of our extensive and diverse experience in the debarment space, we have truly seen it all, and we are one of the few national law firms specializing in independent monitoring services tailored to the monitoring of government contractor compliance with administrative agreements in the context of suspension and debarment cases. What separates our team from others is that we are highly experienced government contracts attorneys with proficiency in government contracting legal issues, evaluation of ethics and compliance programs for contractors, and suspension and debarment proceedings. Our team comprises former government enforcement officials who have sat on the other side of the proverbial table and, through that government service, have an acute understanding of what the government expects from monitors.
We operate with efficiency, knowledge of the governing laws and regulations, and sensitivity to the unique perspectives and roles played by the contractor, defense counsel and the suspension and debarment official (SDO). We understand that an independent monitor plays a unique and important role that requires objectivity, integrity, accuracy and independence. We appreciate the precise role of the monitor, and we honor that role by staying in our monitoring lane and not veering into advocacy (the role of defense counsel) or decision-making (the role of the SDO).
We similarly understand that the government and the contractor likely spent a considerable amount of time negotiating the agreement and carefully choosing each term, and as monitors, we honor the agreed-upon terms as written and perform our duties in accordance with the letter of the agreement. We do not attempt to substitute our judgment and beliefs for those of the parties. Nor do we seek to expand and enlarge the scope of monitoring under the agreement absent explicit direction by the parties to do so.
Our unique knowledge and experience enable us to fill the important role of independent monitor and to work with the contractors and defense counsel, who are advocating for eligibility, and the SDOs and their staff, who are charged with the critically important task of evaluating the amorphous concept of present responsibility and making a decision that may have significant consequences for the government, the contractor, and the contractor’s employees and business partners.
Contractors facing suspension or debarment immediately understand the impact ineligibility has on their business and the critical importance of restoring their eligibility. To restore eligibility, the contractor must demonstrate to the satisfaction of the presiding agency SDO — who may have no prior experience with the contractor other than the allegations before him or her — that the contractor is presently responsible, notwithstanding past ethics and/or compliance events, and that debarment is unnecessary to protect the government’s interests. SDOs, in turn, must ensure that they adequately evaluate a contractor’s present responsibility and, before entering into an administrative agreement, must reach a point at which they are comfortable restoring eligibility and, in turn, exposing the government to the risk of potential future harm.
In our experience, contractors usually retain an independent monitor, after negotiating and securing an administrative agreement with the agency SDO, to evaluate the contractor’s compliance with the terms of an administrative agreement. Such agreements generally have a two or three-year term. However, occasionally, the key to resolving an agency’s present responsibility concerns and securing an agreement with the SDO is to proactively retain a recognized monitor to evaluate independently the contractor’s response to events of concern to the agency and to submit the proposed monitor’s baseline evaluation to the agency SDO, along with the contractor’s submission in opposition to debarment. By proceeding in this manner, contractors afford the SDO more valuable information, which aids evaluation; this information includes the contractor’s position on the events and remediation and also the perspective of an outside and independent monitor. Whether monitors are retained proactively — before an agreement is reached — or post-execution of an agreement, independent monitoring can be very effective in addressing and resolving agency present responsibility concerns.
Examples of How Monitors May Be Used
Monitoring may be used to address a variety of complex present responsibility concerns, and our team is highly experienced in crafting statements of work that are designed to intelligently and efficiently address the SDO’s concerns. Below are the most common scopes of work:
- Monitoring may be used to evaluate the efficacy of an ethics and compliance program, including whether it meets the requirements of FAR 52.203-13, Contractor Code of Business Ethics & Conduct.
- Monitoring may be used to evaluate the efficacy of particular remedial measures and internal controls, including enhancements to technical programs, that have been implemented by the contractor to address and mitigate the recurrence of a prior ethics or noncompliance event.
- Monitoring may be used to evaluate overall corporate culture and employee morale.
- Monitoring may be used to monitor the contractor’s compliance with restrictions imposed by the SDO on the business and/or employees, officers and shareholders.
Our practice was developed to play a much needed role for government contractors and agency SDOs. We are not generalists. We come with decades of government contracts, ethics and compliance, and debarment experience. Sophisticated contractors recognize that a generalist focused on ethics and compliance for myriad industries may not fully understand the legal issues underlying the SDO’s stated allegations and cause(s) for concern. Nor may a generalist come with an immediate grasp of government contracting principles embedded into government contracts and/or the legal and regulatory framework applicable to government contracting. Our practice addresses the market need for independent monitors who offer deep practical experience and know-how in the government contracting, ethics and compliance issues associated with government contracting, and suspension and debarment.