The Government-Wide Debarment and Suspension Regulations After a Decade-A Constitutional Framework-Yet, Some Issues Remain in Transition

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The Government-Wide Debarment and Suspension Regulations After a Decade-A Constitutional Framework-Yet, Some Issues Remain in Transition

I. Introduction

"[Tjhe current [debarment and suspension] process maintains an appropriate balance between protecting the government's interests in its contractual relationships, and providing contractors with due process."1

The General Accounting Office reached this conclusion following its 1987 review of the msjor federal procuring agencies' debarment and suspension procedures. Those procedures, which are generally the same today,2 had their genesis as gov- 'Associate Professor of Law Texas Tech Unwerrlry Sehoal of Law BS summacera linzde. Angelo State Unl\ersn) 1878. J D.rlrh high honors, The Unrwrrrly 01Texas School of Lar, 1882 Pralerrar Shannon WBI &n Attorney Advisor In the Offlee of rhe General Counsel to the Secretary of the Air Farce from 1883.86 and iened as Couneel to the Air Farce Debarment and Suwennan Reiiev Board during that lime The positiom eapouaed ~n fhii article &re those of the author, hanmer and do nor neeesiarily refieel eifhei rhe hlsrarieal or current view of rhe Uepsrrmenl of rhe Mi Force 01 the Department of Defense The author rould also like to express apprerla.

Cmw 0, Goi 7 OPERIT~OII PR(Feb 19871 Ihirelmfter G40 B

*Sa# Fed AcqulslIlan Reg rubpf 8 4 lheremafler FAR],

48 C FR wbpt 8 1(1@80)

The regularlan~ define B ' debarmcnr" 8s the exeluilon of a eonfracror from Gmern. menf conrraenng and Ga,ernment-%ppraved .iubcanlractmg for 8 realanable ipeelfled perlad ' FAR R 403, 48 C FR I 8 403 (ISSO) A 'suspension' 11 an agency a(. fmn 'to duw~lIfy

8 contractor fempor'8nly from Goiernrnent contracting and Gov-ernrnenr.spprmed rubconrractlng 'Id Thus. both of these ~rllonscause B eon.

ernment.wide regulations approximately one decade ago Subsequent to the efforts of an interagency task force and congressional hearings. in July 1861, the Senate Subcommittee on Oversight of Government Management recommended that the federal government issue new debarment and suspension regulations to hare government-wide effect The federal government proceeded to implement those recommendations. Thereafter. over the last decade the federal government has greatly expanded Lts rate of imposing debarment and suspension against many of the contractors with whom It does buslnew5 and these actions are effective throughout the government. Because of the tensions between the government's interests in procurement integrity and contractors' interests in continuing to pursue government work-and perhaps as a re. suit of the heightened activity by the federal government in The debarment and suspension arena-a number of scholars and practitioners have written about the process In partlcu- -

lar, several of these writers either have questioned the constitutional validity or otherwise have been critical of the government's debarment and suspension process.' This author respectfully disagrees with these analyses, and a maJor focus of this article is an examination of the reasons why agency adherence to the current debarment and suspension regulations will result in actions that comport with constitutional due process requirements. On the other hand, even though these government rules provide a constitutional framework, the regulations remain in transition and have been the subject of periodic changes. Thus, new matters will continue to aris...

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