For individuals associated with and working for government contractors as engineers, quality assurance or program management personnel, officers, directors and owners, the prospect of a suspension or proposed debarment proceeding is a very real threat. Indeed, we estimate that the majority of suspension, proposed debarment and debarment actions are taken against individuals. Individuals are sometimes viewed as expendable by government debarring officials whereas contractor organizations may be difficult and resource intensive to replace. By focusing on the individual alleged wrongdoers in the organization, debarring officials - in many instances - can fulfill their mission of protecting the government without disrupting the supply chain. 

For individuals facing debarment, the effect is equally as dire as to the contractor organization, as most government contractors will terminate an employee who has been proposed for debarment or suspended or at a minimum will place the employee on leave pending a resolution. Those fortunate employees who are valued by their employers may find themselves on paid leave or reassigned to work in a non-agent and representative capacity.

With such high stakes, those who find themselves in the crosshairs of such proceedings inevitably have questions and reach out to experienced counsel with them: What should I do if I am debarred, and how does debarment affect me? How will my reputation be impacted by debarment? What can I do to avoid debarment? Unfortunately, adequate answers can be difficult to find.  

For these difficult crisis moments, BakerHostetler’s experienced debarment lawyers are here to help address your proposed debarment or suspension. Our debarment lawyers can demystify the process, providing answers to your questions and supporting you with strategy recommendations.

While each case is unique and BakerHostetler’s guidance and strategy development turns on the particular facts of each client’s case, here are some general recommendations to consider should you receive a notice of proposed debarment or suspension:

1. Select experienced debarment counsel who have been in this situation many times before and can advise you on prior experiences and what to expect. Whomever you choose, make sure they are familiar with suspension and debarment proceedings, and ask for client references who can attest to their experience. Retaining counsel who has been there before and knows what to expect is critical. Experienced counsel will handle the steps recommended below.
2. Typically, proposed debarment notices afford you 30 days to respond. Timeliness is imperative — if you are late in responding, expect to be debarred. Make note of the date of the notice of proposed debarment and the due date for a response.
3. Identify the point of contact set forth in the notice. Typically, the notice will indicate that all inquiries and responses should be directed to a particular attorney in the debarring office, and most offices provide email contact information. This will be your point of contact as you respond to the notice. Responding via email will avoid delays and save time.
4. When writing to the debarment office, always be respectful and professional. Again, we do not recommend that you handle this yourself. Understand that everything you say can (and will) be used against you. The debarment official and his/her counsel are not your friends. They are not there to help you through the process. They likely process hundreds of cases a year and do not have the time or resources to provide guidance. Let your counsel tell your story, not you.
5. When corresponding with the debarment office, confirm the response due date, which should initially be 30 days from receipt of the notice. Occasionally, the debarring office will grant an extension of time if needed.
6. You should also request a copy of the “administrative record,” which should reflect all evidence supporting the proposed debarment notice, and read through it carefully. Ensure that you fully understand the evidence against you and the “present responsibility” concerns in play. Your response will need to address the evidence fully and establish your present responsibility.
7. Respond fully and address allegations first. In responding to the notice, you will be either disputing allegations and evidence or admitting to all or some of them, and offering mitigating facts and remedial measures to demonstrate your present responsibility. Regardless of your position, we recommend always addressing your present responsibility after addressing the allegations. Where you dispute evidence, you must offer rebuttal evidence, and, in some cases, consider submitting a declaration signed by you under penalty of perjury if possible. But this, too, comes with risks that must be taken into account. When admitting to alleged conduct, you will need to identify mitigating facts and remedial measures to demonstrate that, notwithstanding past conduct, you are responsible today and do not present a threat to the government’s business interests.
8. Protect yourself from unnecessary exposure. Where appropriate, be sure to mark your submission and any exhibits with an appropriate legend to try to keep them exempt from the Freedom of Information Act.
9. Be prepared for the debarring office to supplement the record with rebuttal evidence. In some cases, the debarring official will share your submission with the source of the referral and seek their input. This is typical in cases referred by investigators. Where this occurs, the investigator may furnish rebuttal evidence, which the debarring official likely will share with you if they intend to continue the case. If you have made misrepresentations in your submission, be prepared for the investigators to point them out.
10. If you request an in-person meeting with the debarring office, come prepared. Upon responding to the notice, you have the right to request an in-person meeting with the debarring official. This is a strategic decision and requires thought. Additionally, prior to the meeting, you may ask the office who will be present at the meeting, which is useful to know as you prepare. If you request a meeting, prepare for the meeting, come with a written agenda to guide you through the meeting and be prepared to answer any questions you may be asked. Often, prior to meetings, we spend one to two days preparing our clients for the panoply of questions they may be asked. It is your meeting, and the debarring official will expect you to come prepared to make a presentation. Again, we do not recommend doing this on your own.
11. Following your submission and/or in-person meeting, the debarring official will add your submissions to the record and endeavor to make a decision within 30 days. Naturally, sometimes a decision is delayed.
12. Once a decision is made, if you are debarred, you may seek reconsideration. Alternatively, you may challenge the debarment in federal court. If you choose this path, consult with your counsel and confirm that they have the experience challenging debarments in federal court. Few debarment lawyers do, but BakerHostetler’s debarment team has prevailed in court on behalf of a contractor. 

Again, we highly recommend that you retain experienced counsel to guide you through the process, which is complex and has many unwritten rules and principles.

Our group — which includes former government insider Todd J. Canni, who served as a debarment official with the Department of Air Force and has chaired the American Bar Association’s Suspension and Debarment Committee — can help you both develop a comprehensive strategy for responding to a notice of proposed debarment or notice of suspension and implement it.

Authored by: Todd Canni