General
Debarment decisions are discretionary and must consider both the seriousness of the misconduct and any mitigating or remedial actions taken by the contractor.
Overview
FAR 9.406-1 outlines the general principles and procedures for debarment of contractors, emphasizing the suspending and debarring official's discretion in determining whether debarment is in the Government's interest. The regulation lists a comprehensive set of factors that must be considered before making a debarment decision, such as the contractor's internal controls, cooperation with investigations, remedial actions, and the seriousness and pervasiveness of the misconduct. The existence of a cause for debarment does not automatically require debarment; mitigating and aggravating factors are weighed. The section also clarifies that debarment typically applies to all divisions and affiliates unless specifically limited, and that debarment is effective government-wide unless an agency head provides a written exception. Additionally, it addresses the coordination of debarment actions under both the FAR and the Federal Management Regulation (FMR) for acquisition contracts and federal personal property purchases.
Key Rules
- Discretion in Debarment Decisions
- The suspending and debarring official must determine if debarment is in the Government's interest, considering both the seriousness of the offense and any mitigating or aggravating factors.
- Factors for Consideration
- A detailed list of factors (e.g., internal controls, cooperation, restitution, remedial measures, history of wrongdoing) must be evaluated before debarment.
- Scope of Debarment
- Debarment generally applies to all divisions and affiliates unless specifically limited, and is effective throughout the executive branch unless an exception is documented.
- Burden of Proof
- Contractors must demonstrate their present responsibility and that debarment is unnecessary if a cause exists.
- Coordination with FMR
- Officials with authority under both FAR and FMR should consider simultaneous debarment for contracts and federal personal property purchases.
Responsibilities
- Contracting Officers: Must recognize the scope and effect of debarment decisions and ensure compliance with government-wide exclusions.
- Contractors: Must cooperate with investigations, implement remedial measures, and demonstrate present responsibility to avoid or lift debarment.
- Agencies: Must ensure proper notice to affiliates, document exceptions, and coordinate debarment actions across relevant regulations.
Practical Implications
- This section ensures that debarment decisions are fair, consistent, and based on a holistic review of the contractor's conduct and corrective actions. It impacts contractors by requiring robust ethics and compliance programs, timely cooperation, and transparency. Common pitfalls include failing to address underlying issues, inadequate internal controls, or not responding to debarment notices, which can result in government-wide exclusion from contracting.