February 04, 2019 Public Contract Law Journal

Putting Federal Suspension & Debarment Officials in the Driver’s Seat : Empowering S&D Programs to Efficiently Save Taxpayer Dollars

by Corey Garlick

Corey Garlick is a Law Clerk at Pension Benefit Guaranty Corporation, Office of General Counsel, General Law and Procurement Group in Washington, DC. He is awaiting the February 2019 District of Columbia Bar exam results. Mr. Garlick is a graduate of The George Washington University Law School, where he was the Projects/ Symposium Editor of the Public Contract Law Journal. Mr. Garlick previously received a Bachelor of Science, Political Science, cum laude from California State University, Fullerton in 2014. During law school, Mr. Garlick was a Law Clerk at the General Services Administration, Suspension and Debarment Division; a Law Clerk at the Environmental Protection Agency, Suspension and Debarment Program; and a Student Attorney in the Jacob Burns Community Legal Clinics. He also served as a Research Assistant to Professor Neil H. Buchanan. Mr. Garlick thanks Professor Karen Da Ponte Thornton, Director of the Government Procurement Law Program at The George Washington University Law School, for her helpful guidance throughout the writing process.

I.  Introduction

The U.S. federal government is the largest buyer of goods and services in the world,1 spending about one trillion dollars per year on federal contracts and grants.2 About one out of every six federal tax dollars spent goes to a government contractor.3 Today, especially, with the Trump Administration’s $4.4 trillion budget proposal that includes a $300 billion increase for both domestic and military spending,4 it is crucial for the United States to have active suspension and debarment (S&D) programs to prevent fraud, waste, and abuse.

The suspension and debarment system is designed to protect taxpayer dollars by ensuring the government is working only with honest, responsible, and competent contractors.5 However, not all agency suspension and debarment programs are active, properly staffed, properly trained, and equipped with the necessary resources to carry out their missions efficiently. When one agency fails to properly pursue suspension and debarment actions, the rest of the government is vulnerable to waste, fraud, and abuse. On the one hand, if one bad actor flies under the radar of an inefficient program, that contractor is likely to receive additional federal funds as well as submit bids and proposals for new contracts. On the other hand, if a program lacking the necessary resources and trained staff unlawfully suspends or debars a government contractor, that contractor faces an economic death sentence and will likely be put out of business.

To ensure both taxpayer funds and government contractors are protected sufficiently, suspension and debarment programs must have trained staff acting as impartial fact-finders with agency-specific policies and procedures. Additionally, program staff must be knowledgeable about the applicable Federal Acquisition Regulation (FAR) provisions regarding reporting actions through the System for Award Management (SAM) and Federal Awardee Performance and Integrity Information System (FAPIIS) enabling effective government-wide notice of contractors faced with suspension and debarment actions.

After providing a brief overview of the U.S. federal suspension and debarment system, this article examines three instances where the government likely could have prevented waste, fraud, and abuse if suspension and debarment programs across the executive branch were structured properly and equipped with the necessary staff, training, and resources. The first instance is the United States Agency for International Development’s (USAID) suspension of one of its largest contractors, International Relief and Development (IRD). This article contends that if USAID properly organized its suspension and debarment program to avoid outside influence and conflicts of interest, the suspension of IRD and subsequent scrutiny of USAID may have been avoided. The second instance details the lack of resources throughout the Department of Homeland Security’s (DHS) suspension and debarment program. The third and final example this article examines is the areas where the Interagency Suspension and Debarment Committee (ISDC) can improve and expand on to become a pillar in the suspension and debarment community.

This article argues that, for suspension and debarment programs to be more efficient and active, (1) suspension and debarment programs across the federal government must be impartial fact-finders, equipped with the necessary staffing, training, resources; and (2) the ISDC must be more active and visible.

II.  Suspension & Debarment Overview

The FAR allows executive agencies to install their own suspension and debarment policies and procedures, which has led to inconsistent S&D actions across the federal government as a whole.6

S&D actions are the result of a determination by a Suspension and Debarment Official (SDO) that a specific federal contractor is non-responsible.7 SDOs are the agency officials in charge of determining whether S&D action should be taken because a contractor is non-responsible and a threat to tax- payer funds and the government’s interest.8

FAR 9.406 controls debarment actions.9 For a contractor to be lawfully debarred, (1) the contractor must lack present responsibility;10 (2) the debarment must be based on a conviction, civil judgment, or if the debarment is fact-based, based on a preponderance of the evidence;11 (3) the debarment must be in the government’s interest;12 and (4) the debarment must be non-punitive.13 The debarment period should be consistent with the seriousness of the misconduct and should not last longer than three years, unless necessary.14

FAR 9.407 governs suspensions. Suspension is a temporary debarment that is taken while the agency investigates the alleged conduct and determines the contractor’s present responsibility.15 For a contractor to be lawfully suspended, (1) the contractor must lack present responsibility;16 (2) the suspension must be based on “adequate evidence”;17 (3) the suspension must represent an immediate need to protect the government’s interest;18 and (4) the suspension must be non-punitive.19 Key aspects of the S&D decision-making process are addressed further below.

A.  Present Responsibility

For a contractor to be lawfully suspended or debarred, it must be found not “presently responsible.”20 Generally, when assessing the present responsibility of a contractor, the SDO determines whether the contractor can be trusted to conduct business ethically in accordance with the FAR.21

In determining present responsibility, SDOs may consider the ethical and compliance programs and policies of the contractor,22 whether and when the contractor notified the appropriate government agency of the alleged misconduct that led to its processing for suspension or debarment,23 and the contractor’s remedial actions in response to the alleged failures.24

B.  Non-Punitive Actions in the Government’s Interest

The suspension or debarment cannot be punitive.25 The suspension and debarment system is designed to push non-responsible or potentially non-responsible contractors to become presently responsible through achieving FAR and contract compliance and establishing company-wide ethics programs specifically aimed at curing the wrongdoing.26

Further, the suspension or debarment must be necessary to protect the government’s interest.27 Therefore, if mitigating factors or remedial actions are available to the contractor without putting the government’s interest in imminent danger, the SDO should take those factors into account when determining whether S&D action is appropriate.28

C.  Due Process Concerns

The FAR requires that a notice of suspension or proposed debarment be given, and the contractor typically has thirty days to respond, usually in writing.29 In many cases, after responding, the contractor is entitled to a meeting with the SDO at which the contractor may be represented by counsel, present evidence, dispute facts in the administrative record, and offer evidence of its present responsibility.30 A contractor is not entitled to a SDO meeting if the suspension or debarment is based upon a criminal conviction or civil judgment arrived at after a proceeding in which the contractor had the opportunity to dispute facts.31 The contractor has the right to appeal its suspension or debarment in district court under the Administrative Procedure Act (APA).32

D.  Consequences of Suspension and Debarment

Suspension and debarment have the same immediate impact — namely, the contractor’s inability to receive new federal contracts.33 When a proposed debarment, suspension, or debarment is signed by the SDO, it must be uploaded to SAM.34 Once a contractor is suspended or debarred and entered into SAM, the contractor is ineligible for federal awards.35 The federal government uses SAM and FAPIIS to identify and track contractor misconduct and performance of federal contracts.36

Suspension or debarment can be an economic death sentence.37 Unless the misconduct is limited to specific divisions or organizational elements, suspension and debarment encompasses all divisions and organizational elements of the suspended or debarred contractor.38 If the contractor is unable to prove present responsibility, or if the contractor is wrongfully suspended or debarred, the government may be effectively putting the contractor out of business.39

E.  The Interagency Suspension and Debarment Committee

The Interagency Suspension and Debarment Committee (ISDC) is designed to stimulate discussion and provide training among SDOs and S&D staffs. The purpose behind the ISDC is to assist agencies in obtaining and keeping the expertise needed to protect the government’s interest from harm caused by contractors who lack present responsibility.40 The ISDC also coordinates lead agencies regarding the suspension or debarment of contractors who receive awards from multiple agencies, “serves as a forum to discuss current suspension and debarment related issues, and assists in developing unified Federal policy.”41 S&D practitioners from civilian agencies, defense agencies, and federal government corporations make up the ISDC.42

III.  Instances of Under-Utilized Suspension & Debarment Programs

Three issues display shortcomings in the S&D system. First, the suspension of International Relief and Development, Inc. shows why S&D offices must remain apolitical with transparent standards and well-trained S&D personnel. Additionally, IRD’s suspension highlights the need for S&D offices to remain impartial.

Second, a recent Department of Homeland Security Office of Inspector General report highlights the shortcomings of an S&D program that is not staffed or trained properly. Without a properly organized and informed S&D office, a program is unable to adequately police government contracts and protect taxpayers’ dollars.

Third, the ISDC is underutilized. If properly tapped into, the ISDC can act as a hub for agency officials, federal contractors, and the public to use when faced with S&D questions. Additionally, it is hoped that a more proactive ISDC will result in more consistent S&D actions across agencies.

These examples are not analyzed to tarnish the government’s reputation. Instead, these examples are used to show that a few improvements to S&D offices that lack the proper staff and resources will lead to long-term savings through contracting with more ethical and responsible businesses. In essence, S&D is a trial and error system. Each contract awarded is a trial for the next contract. And when an error occurs on behalf of the contractor, the S&D system should be there to ensure no additional errors, or misconduct, occur in future contracting.

A.  USAID’s Suspension of IRD

One example of the S&D process gone awry is the U.S. Agency for International Development’s suspension of International Relief and Development, Inc., now known as Blumont.43 The IRD suspension is evidence of the need for an apolitical process, transparent standards, and well-trained and impartial SDO and S&D personnel. Without such measures, understaffed and under-resourced S&D offices may be exposed to media speculation and congressional inquiries due to improper S&D actions.

To continue to make an impact in countries looking to stabilize and build responsible governments, USAID has looked increasingly to nonprofit, non- governmental organizations (NGOs) to complete its mission.44 From 2007 to 2015, USAID awarded over $2.4 billion in contracts and cooperative agreements to IRD,45 with projects in Iraq and Afghanistan making up eighty-two percent, or $1.96 billion, of those contracts and awards.46 Between 2007 and 2013, IRD received seventy-six percent, or approximately $2.28 billion of its reported revenue from USAID.47

IRD was criticized harshly over its high salaries and lavish bonuses awarded to employees;48 lack of project oversight; waste, fraud, and abuse; and a “revolving door” of USAID employees leaving the agency to work at IRD.49

IRD made a series of questionable financial decisions, allegedly spending tax dollars on extravagant personal and company expenses, including NFL season tickets, expensive meals, personal travel, and alcohol for IRD receptions and company retreats.50 Further, IRD’s Chief Executive Officer’s (CEO) salary was $485,000, and thirty-eight employees received more than $3.4 million in bonuses in four years when CEOs and employees of similarly situated NGOs received substantially less in salaries, and rarely received bonuses.51 Further, the CEO and his wife received approximately $4.4 million from 2008 to 2012, while the CEO’s brother-in-law, whose role was director of information technology, received $148,472 in bonuses during the same time period.52

Also, IRD consistently recruited USAID employees to work for IRD with significantly higher salaries.53 IRD hired at least nineteen employees from USAID, all of them receiving considerable raises.54

USAID believed it had found evidence of “serious misconduct” by IRD on a number of its development projects.55 USAID handed over hundreds of millions of dollars to IRD to fund programs with almost no oversight of IRD’s performance.56 IRD experienced numerous problems with its contract performance on development programs in Afghanistan, including overspending and poor oversight.57 For example, as part of an agriculture program aimed at rebuilding two Afghan communities, IRD distributed farming supplies to only a few farmers, and those farmers then crossed the border into Pakistan to sell the supplies.58

On January 26, 2015, USAID issued IRD a Notice of Suspension.59 As a result, IRD’s suspended status was entered into SAM, barring IRD from receiving future federal awards.60 IRD challenged the suspension in the District Court for the District of Columbia.61 The court granted IRD’s request that the court declare the suspension void under the APA and National Defense Authorization Act (NDAA) of 2013.62

While at the time of the misconduct, suspension of IRD may have been war- ranted, USAID suspended IRD after IRD took extensive corrective actions.63 IRD initiated its corrective actions around April 2014,64 nine months before USAID issued IRD a notice of suspension.65

In its response to USAID’s show cause letters, IRD began a series of corrective action initiatives,66 removing the CEO and his wife from the organization67 and focusing on improving ethics and compliance policies and procedures.68 IRD installed Roger Ervin69 as CEO and President.70 Ervin oversaw a process within IRD in which IRD laid off the board of directors and twenty-one employees to help establish present responsibility.71 Seven longtime managers resigned, including the chief financial officer, chief administrative officer, and general counsel.72

Further, IRD established a Special Committee on Compliance to ensure IRD was compliant and transparent in performing government contracts.73 IRD even hired a third-party monitor to assess IRD’s ethics and compliance with USAID contracts74 and hired an outside accounting consultant “to con- duct a forensic accounting examination of expenses between 2010 and 2014 by [IRD] and charged as indirect costs to IRD and the government.”75 Notably, USAID was made aware of the corrective actions undertaken by IRD before USAID issued its suspension.76

The suspension of IRD is an example of how a suspension may be wrongfully imposed by the government. IRD engaged in numerous mitigating and remedial measures laid out in FAR 9.406-1(a)(1)–(10) as the type to be considered in establishing its present responsibility. USAID likely arrived at its decision to suspend IRD, regardless of IRD’s present responsibility and the need to protect the government’s interest. The IRD suspension illustrates the issues that arise when an S&D office is not properly organized.

IRD asserted that the SDO was not an impartial decision-maker and that a conflict of interest existed.77 At the time, the SDO also served as the Director of USAID’s Office of Acquisition and Assistance and supervised all of USAID’s contract awards, including awards made to IRD.78

A Washington Post story led to scrutiny of USAID’s relationship with IRD.79 The news article harshly criticized USAID and IRD over the high salaries and lavish bonuses given to IRD employees;80 lack of oversight; waste, fraud, and abuse; and a “revolving door” of USAID and IRD employees.81

Subsequently, Congress likely was made aware of IRD’s prior misconduct while performing USAID contracts. On January 16, 2015,82 ten days before USAID issued its Notice of Suspension to IRD,83 Senator Bob Corker, Chairman of the Committee on Foreign Relations, sent a letter to the Administrator of USAID criticizing USAID’s S&D program for continuing to use government funds in connection with IRD.84 Senator Corker requested an investigation into all awards granted to IRD.85 Further, he set a January 30, 2015, deadline to deliver to him a report of investigation detailing possible suspension, debarment, and contract oversight plans with regards to IRD.86 USAID suspended IRD four days before Senator Corker’s January 30 deadline.87 The timing of the suspension and Senator Corker’s deadline strongly suggest that IRD’s suspension was due, at least in part, to congressional criticism of USAID’s S&D program.

The suspension of IRD highlights the need for properly organized S&D offices with SDOs and their staffs remaining impartial fact-finders whose decisions are grounded in the FAR. To ensure outside sources do not influence an S&D program, S&D offices throughout the government should aim to insulate their SDOs from Congress, the media, and high-level agency conflicts of interest with regards to ongoing S&D cases.

B.  The U.S. Department of Homeland Security’s Suspension and Debarment Program

When a program is not staffed properly, and its program staff are neither trained nor provided with adequate resources, it is impossible for the program to protect the government’s interest and adequately enforce the FAR. As a result, that program puts the rest of the government at risk of awarding con- tracts to non-responsible contractors.

The Office of Inspector General (OIG) for the Department of Homeland Security (DHS) recently concluded that DHS lacks the necessary resources for a successful S&D program.88 As addressed above, the foundation for a strong S&D program is an adequate, full-time S&D staff with proper training; accessible and comprehensive policies and procedures; properly documented S&D decisions; and timely filing of S&D actions to the proper databases.89

According to the DHS OIG’s January 2018 report, DHS lacks several characteristics of a strong S&D program. First, the DHS Suspension and Debarment Instruction Manual (“Manual”) needs updating.90 DHS issued the Manual in May 2012, and has not updated it since.91 According to the DHS OIG, the Manual lacks the following:

[D]etailed requirements and procedures for documenting decisions to use an administrative agreement in lieu of suspension or debarment; current information about where data on suspensions, debarments, and proposed debarments is entered, tracked, and used for reporting; and definitions for all terms used in DHS’ Suspension and Debarment Program, such as ‘petition,’ ‘show cause notice,’ ‘voluntary exclusion,’ ‘determined responsible,’ and ‘no action.’92

The DHS OIG found that the lack of clear instruction and definitions likely leads to confusion among staff and inconsistent S&D actions.93 Additionally, the DHS OIG suggested the Manual be periodically reviewed to check if additional instruction, definitions, and details are appropriate.94

Second, the S&D program does not sufficiently document, track, and maintain records related to S&D actions, including administrative agreements.95 The majority of DHS’s administrative agreements are missing important documentation.96 Most of the administrative agreements were missing parts of the administrative record.97 For example, written justifications for the actions and decisions, and a written record of all verbal and electronic communications, were not present.98

The Manual mandates that S&D programs in DHS “maintain records on [S&D] cases for [three] years after the effective date (when the SDO signs the notices of a final decision to suspend or debar).”99 Some DHS S&D programs fail to keep such records, including, for fiscal year (FY) 2016, signed notices of final decisions for S&D actions that were reported.100

The failure to provide proper documentation for S&D actions affects not only DHS S&D programs, but may have led to inaccurate reporting in the ISDC Report, which is submitted to Congress annually.101 DHS was missing the supporting administrative record for an alarming fifty-six percent of sus- pension cases in FY 2016.102 This included failure to properly maintain records of five signed final suspension notices.103 Therefore, DHS’s suspensions total for FY 2016 may be four suspensions, not nine as reported to the ISDC.104

Similarly, for debarment, DHS erred in reporting the number of debarments in FY 2016.105 For example, the Federal Emergency Management Agency (FEMA), a component of DHS, reported fifty-seven debarments in FY 2016.106 However, FEMA was able to produce only twenty signed debarment notices.107 FEMA could not provide signed notices for fifty-four percent of its reported debarments.108 Additionally, the U.S. Citizenship and Immigration Services (USCIS), another component of DHS, reported zero debarment actions for FY 2016.109 However, USCIS has records of signed debarment notices for nine debarments in FY 2016.110 In total, for DHS-wide S&D programs, the difference between DHS debarments reported to ISDC and the number of debarments with proper documentation is twenty-eight for FY 2016.111 DHS is either missing documentation for ten percent of its debarment decisions or over-reported its total debarment numbers to ISDC.112

Missing documentation can cause various issues. It provides inaccurate S&D numbers to Congress and the public. Also, missing documentation may lead potentially lawful S&D actions (if proper documentation was provided) being overturned under the APA as arbitrary and capricious for lack of an administrative record.113

FEMA did not adequately update SAM and FAPIIS from August 2016 to March 2017.114 Per the Manual, S&D staff “must update SAM within [three] workdays of the effective date of a suspension and proposed debarment under the FAR and within [five] workdays of suspension and debarments under the Nonprocurement Common Rule (NCR).”115 Additionally, the FAR mandates that all administrative agreements must be uploaded “into FAPIIS within [three] workdays of their effective date.”116

FEMA failed to comply with the Manual and the FAR.117 FEMA’s S&D office did not update SAM for thirty-five debarment actions between August 2016 and March 2017.118 Though FEMA cleared its backlog of unreported SAM cases on April 4, 2017,119 the SAM uploads ranged from twenty-five to 236 days late.120

Luckily, the delay in reporting did not result in any of the thirty-five debarred respondents receiving any federal funds while being disqualified from receiving taxpayer dollars.121 However, delays in uploading S&D actions into SAM can lead to waste, fraud, and abuse. If a suspended or debarred contractor fails to acknowledge its debarred status — a circumstance most likely with the worst actors — a delay in uploading means the entire federal government risks doing business with contractors who are not presently responsible, or contractors in administrative agreements that state the contractor will not bid for or submit proposals for new government contracts over a specified period of time.122

Finally, DHS’s S&D office lacks the staffing necessary for a reliable and successful S&D program.123 The DHS SDO has no staff, yet has a wide range of S&D responsibilities.124 The DHS SDO is responsible for “maintaining, supervising, and overseeing the Suspension and Debarment Program, including making suspension, debarment, and related administrative decisions; establishing policy, process, and procedures; and establishing training, professional development, and certification requirements for suspension and debarment personnel.”125 The DHS SDO also is responsible for making final decisions on S&D referrals DHS-wide.126 Additionally, the DHS SDO serves as DHS’s representative and only ISDC voting member.127 It is critical that S&D offices are staffed appropriately to allow for consistent S&D programs and actions that adequately protect the government’s interest.

While more established and supported S&D programs throughout the government may cost the government more money on the front end, it ensures public trust in a system that promises to only engage with responsible contractors.128 If S&D programs have the necessary resources, staffing, and training, then additional waste, fraud, and abuse likely will be avoided before it can occur.

C.  Issues Within the ISDC

While the ISDC has improved the suspension and debarment process, it can make additional improvements that will lead to more efficient, active, and informed suspension and debarment programs. The ISDC must report annually to Congress regarding the federal suspension and debarment system per Section 873 of the 2009 NDAA.129

The reports from FY 2014 to FY 2016 contain a lot of the same vague, boiler plate language.130 For example, each report contains language, more or less, stating ISDC’s goals to promote transparency, emphasize training, outreach, and build the ISDC website.131 ISDC complies with the statute by releasing an annual report to Congress each year, but fails to provide much meaningful information. Currently, prospective improvement language in ISDC reports is limited largely to statements such as “[m]ember training with a particular emphasis on promoting greater procedural history consistency”; “[a]ssistance to agencies to promote and build program effectiveness”; and “[o]utreach with a variety of external stakeholders. . . .”132

Also, the trainings appear to be non-mandatory for ISDC members.133 For FY 2015, thirty-two out of forty-two ISDC member agencies participated in the day-long training event providing “practical approaches for developing, improving, and executing their agencies’ programs.”134

The ISDC website is difficult to navigate and contains little useful information.135 For example, the 873 reports state that twenty-four executive agencies and eighteen independent government corporations are ISDC members,136 yet the only way to see participating members is to go to the “Debarring Officials” page, which lists twenty-five different executive agencies.137 The independent government corporations are not listed on the site.138 Reports from FY 2014 and FY 2015 mention improving the website by adding suspension and debarment information to the ISDC website.139 However, the site does little to explain the suspension and debarment process, other than listing some general information and links to applicable regulations.140

IV.  Suggested Reform

To adequately protect tax dollars, S&D programs across the government must be consistent, efficient, and active. More specifically, they must (1) be impartial; (2) have full-time, adequately trained staffing; (3) have detailed policies and procedures in agency-specific instruction manuals; (4) properly document all S&D actions; (5) timely upload all S&D decisions to the proper databases; and (6) have adequate data collection on causes for all S&D actions.141 Moreover, the ISDC must be more proactive and visible to S&D offices, federal contractors, and the public. Specific proposed improvements from the ISDC to agency-level processes are discussed below.

A.  Suggested ISDC Improvements

While the ISDC reports are useful tools for looking at the general state of S&D programs across the government,142 the reports would be more effective if they (1) detailed plans accomplished in the year, as well as weaknesses and missteps of programs;143 and (2) provided more specific information in accessible annual reports, such as the causes or bases of S&D actions.

The ISDC reports would be more beneficial for Congress and ISDC members if the reports outlined what was successful, what contributed to the success, and how, and whether ISDC members intended to continue such measures. Further, it especially would be beneficial to include the weaknesses and failures of ISDC members, as well as the ISDC’s specific plans to address those areas.

If the training is to be effective and consistent for each program, it is essential that each program take part in joint annual training. Therefore, the ISDC training events should be mandatory for all S&D programs throughout the government.

Further, the ISDC should provide the public, S&D staff, and contractors with more substantive information regarding the suspension and debarment process on its website. The ISDC website should be an educational resource for current and potential contractors. For example, useful information might include: (1) clear explanations of what misconduct could lead a contractor to be deemed not presently responsible; (2) what to do upon discovery of potential compliance failures; and (3) a description of mitigating factors and remedial actions that SDOs consider when deciding whether to pursue suspension and debarment actions. An educational ISDC website likely would lead to S&D being a more effective tool at preventing waste, fraud, and abuse by serving as an accessible resource to interested parties and the public.

B.  Suggested Improvements at the Agency Level

If one federal agency S&D program cannot properly safeguard its own interests, then the entire federal government is at risk for contracting with bad actors. In other words, if an agency lets one contractor’s bad acts or poor contract performance slip through the cracks of S&D enforcement, that con- tractor is free to contract with other federal agencies where it likely will lead to further government waste, fraud, and abuse. Now imagine if multiple S&D systems are failing to properly staff and train their S&D offices, the number of contracts between the government and risky contractors, who should have faced S&D action, multiplies. For the government to be protected adequately, each S&D office must be equipped with the adequate tools and staff necessary to perform its mission in accordance with the FAR.

1.  An Impartial, Adequately Trained Staff and Detailed, Agency-Specific Policies and Procedures

To achieve consistent actions across the government, it is essential that SDOs and their employees be unbiased fact-finders whose decisions are based in the administrative record and free from outside influence. Further, S&D offices must be staffed in proportion to the agency’s government contracting needs, and staff must be trained adequately on when to take S&D action versus when to use other tools at their disposal, such as administrative agreements. If programs are not equipped with the proper resources to succeed, tax dollars are left vulnerable to non-responsible contractors.

a.   Impartial Fact-Finders and Decision-Makers

To ensure decisions are made in accordance with the FAR, it is crucial that SDOs remain impartial and uninfluenced by congressional, media, and political pressures when deciding ongoing S&D cases. SDOs largely act in a judicial role when deciding whether to take S&D action. In making S&D decisions, SDOs must consider only the administrative record of the case in front of them and apply the applicable law and regulations to the facts without regard to external pressure. The focus should be the misconduct, the present responsibility of the contractor, and the need to protect the government’s interests.

To achieve this goal, S&D programs should be outside any agency contracting umbrella. For example, S&D programs can be housed successfully under the General Counsel or OIG, outside of agency contracting functions. With regards to political or media scrutiny, allegations or requests for reports of investigation should be through the agency OIG, or specific agency investigatory office. Moreover, the improper suspension of IRD demonstrates how external sources can influence an SDO to pursue S&D action despite a con- tractor’s present responsibility or the government’s interest.

b.   An Adequate and Properly Trained Staff in Best S&D Practices

To effectively carry out its functions of protecting the government from fraud, waste, and abuse, S&D program offices must be properly staffed, and the staff must be trained sufficiently in best S&D practices. Staffing size will depend on agency size, the S&D program, and the number of SDO responsibilities. Agencies should review the total number of cases processed and contractors worked with over a period of time to determine the appropriate staff number. Unlike the DHS SDO, who has no staff at his or her disposal and a number of time-consuming responsibilities,144 it is critical that each agency review its SDO’s responsibilities and staff the S&D program accordingly.

Furthermore, the addition of more staff likely will allow S&D programs to take a comprehensive approach and pursue more actions.

Further, agencies should staff, or at least support, their S&D programs with lawyers equipped with the analytical skills needed for FAR interpretation and legal document review. Having a full-time staff to meet the needs of the S&D program is one of the first steps necessary to ensure that the government is working with only responsible contractors.

SDOs and their staffs must continue to receive training on how and when to implement S&D proceedings, plus when to use administrative tools when dealing with contractor misconduct, while retaining discretion145 given to them through the FAR. SDOs can and should use administrative agreements,146 referrals,147 and show-cause letters, or pre-engagement notice letters.148 By continuing to allow SDOs to exercise significant discretion, SDOs can execute business decisions according to his or her agency expertise and industry knowledge when dealing with contractors’ potential misconduct.149

Had USAID attempted to use other tools to remedy IRD’s misconduct, it is likely that litigation could have been avoided, and government resources saved. Show-cause letters, or pre-notice engagement letters, “give contractors an opportunity to discuss the steps they are taking to address issues, that if left un-remediated, would likely result in suspension and debarment.”150 This option would allow IRD to address its misconduct and ensure the government’s interests were not in danger. Further, an administrative agreement could have been entered into between USAID and IRD. An administrative agreement is a tool that can be used to benefit both the government’s interests and the contractor.151 Administrative agreements allow the government to outline a timeline with required ethical and remedial actions, for example, new or improved ethics and compliance policies, new corporate leadership, and outside parties152 to monitor the contractor’s ethics and overall compliance program.153 The contractor must meet the conditions of the administrative agreement, or face the harsher penalties of suspension and debarment.154 

In the case of IRD, an administrative agreement could have been reached between IRD and USAID, which would have outlined the remedial measures and corrective actions necessary for IRD to be presently responsible — actions which IRD largely had already completed on its own under the guidance of its new CEO and President.155

An administrative agreement likely would have been a much more effective way to protect the government’s interest. It would have allowed IRD to implement corporate changes, benefiting IRD and the government, while USAID would not have faced the public embarrassment of having an unlawful suspension overturned in court. The IRD suspension is an example of the negative consequences of pursuing suspension or debarment without consideration of all of the administrative tools at an SDO’s disposal.

Further, it is critical that S&D staff are trained on the relationship between contractor present responsibility, the non-punitive nature of suspensions and debarments, and the mitigating factors laid out in FAR 9.406-1(a)(1)–(10). IRD had strong arguments that it was presently responsible because it had performed mitigating factors and numerous remedial measures laid out in FAR 9.406-1(a)(1)–(10). For example, IRD implemented measures addressing FAR 9.406-1(a)(3), (4), (6), (7), (8), (9), and (10).156 By performing a majority of the mitigating factors available in the FAR, the government’s interests seem to have been sufficiently protected for purposes of future business with IRD.

c.   Detailed Policies and Procedures in Agency-Specific Instruction Manuals

All S&D programs, if they do not already, must develop and maintain an up-to-date suspension and debarment instruction manuals to achieve consistency in S&D actions. The manuals should include all relevant government- wide S&D definitions, such as “show cause notice,” “request for more information,” “lead agency,” and “no action.”157 In addition to government-wide S&D definitions, agency-specific S&D definitions should be included in the manuals. For example, for an agency that contracts for international development supplies and services, definitions should include “human trafficking,” and the best practices for pursuing S&D actions against contractors engaged in human trafficking.

The manuals should also include up-to-date information on how and when to timely upload the required information to SAM and FAPIIS; how to properly track S&D cases and decisions; and a process with clear requirements on proper documentation for all S&D-related actions and decisions.158 Further, having a clearly written manual will allow S&D staff to develop a deeper understanding of their responsibilities and promote accountability.159 Manuals will allow S&D programs to achieve consistent policies and precedent.160 An up-to-date manual, including all necessary details, will allow an S&D staff to follow the same S&D policies and procedures consistently, which will in turn lead to more consistent S&D actions for the benefit of the government and its business partners, and a more efficient and effective way to protect taxpayer dollars.

2.  Properly Document All Actions in Writing; Ensure Timely Uploading of Actions to the Proper Databases; and Collect Data on Causes

Developing an inclusive administrative record must be a top priority for SDOs. If S&D decisions are not documented properly and in writing, the government will be vulnerable to challenges of actions under the APA for lack of administrative record. Additionally, all S&D actions must be uploaded to the proper database because a failure to post the action on SAM or FAPIIS allows contractors who are technically suspended or debarred to submit bids and proposals on future contracts if the contractors fail to self-report, or otherwise acknowledge their status. Finally, causes for S&D actions need to be tracked because trends will emerge that will be helpful for adopting new regulations, guidance, or policies.

a.  Properly Document in Writing All S&D Decisions, Including Decisions Not to Take Action

Every S&D decision and action, including decisions to take no action, must be documented properly and in writing.161 Additionally, all substantive phone calls, meetings, and electronic communications should be documented.162 Proper documentation should be “objective, unbiased, and based on the facts.”163 Further, proper administrative agreements and corresponding documentation must include plans that detail how the agency is minimizing future risk to the government.164 It is necessary that the decisions and actions, plus their rationale, be in writing to hold S&D staff accountable and to ensure the government’s interest is protected.165 Also, creating a contemporaneous and global written administrative record will be beneficial in upholding challenged suspensions and debarment actions under the APA in district court.

b.  Timely Filing of All Suspensions, Debarments, and Administrative Agreements to the Proper Databases

All S&D programs must upload all S&D actions, including administrative agreements to the proper databases by the required deadlines. If suspensions and debarments are not timely entered into SAM, the entire federal government is at risk for doing business with contractors who lack present responsibility. Without proper SAM entries, other contracting agencies and their contracting officers are unaware of the bad acts committed by suspended and debarred contractors.

To ensure S&D actions, including administrative agreements, are uploaded to SAM and FAPIIS, SDOs should implement employee performance plans that mandate S&D staff upload the documentation in accordance with the FAR and their agency-specific Manual.166

c.  Collection of Data

It is crucial that all S&D programs start to collect data on the causes of suspensions and debarments. Data collection is necessary for effective case management.167 Every case should be tracked properly and managed. By collecting and preserving data, trends on S&D actions, causes, and successes and failures will emerge.168 By collecting and recording data on the specific causes for suspensions and debarments, the government can better protect its interests by knowing specific trends of bad actors in contracting, areas where S&D programs excel, and areas where S&D programs should dedicate more resources.

V. Conclusion

S&D programs, through the FAR and NCR, were established to help safeguard taxpayer money and to protect the government’s interests when engaging private parties to provide goods or services or to assist in carrying out government programs. However, due to a lack of resources, staffing, training, and inconsistency across agency S&D programs, the government has not effectively utilized S&D actions. An examination of USAID’s unlawful suspension of IRD, DHS’s poorly equipped S&D program, and the underutilization of the ISDC show that with enhanced organizational structure, adequate staffing, training, and resources, SDOs and their staffs would be better positioned to ensure American tax dollars are not going to fraud, waste, and abuse.

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  1. Steven Shaw, Don’t Go Overboard Banning Military Contractors, Reuters (Aug. 8, 2012), http://blogs.reuters.com/great-debate/2012/08/08/dont-go-overboard-banning-military-contractors [https://perma.cc/P275-E4NM].
  2. Jacob, J. Lew, Memorandum to the Heads of the Executive Departments and Agencies, M-12-02, Suspension and Debarment of Federal Contractors and Grantees, U.S. Office of Mgmt. & Budget 1 (Nov. 15, 2011).
  3. Shaw, supra note 1. A contractor is “any individual or other legal entity that—(1) Directly or indirectly (e.g., through an affiliate), submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded, a [g]overnment contract . . . or a subcontract under a [g]overnment contract; or (2) Conducts business, or reasonably may be expected to conduct business, with the [g]overnment as an agent or representative of another contractor.” FAR 9.403.
  4. Julie Hirschfeld Davis, White House Proposes $4.4 Trillion Dollar Budget, Adds $7 Trillion to Deficits, N.Y. Times (Mar. 10, 2018), https://www.nytimes.com/2018/02/12/us/politics/white-house-budget-congress.html [https://perma.cc/S7LV-EZU6].
  5. See FAR 9.403.
  6. FAR part 9.4, and the Nonprocurement Common Rule, 2 C.F.R Part 180, govern the S&D process. The FAR controls S&D actions related to federal contracts. U.S. Gov’t Accountability Off., GAO-14-513, Federal Contracts and Grants: Agencies Have Taken Steps to Improve Suspension and Debarment Programs 3–4 (2014). While the NCR controls suspension and debarment for discretionary non-procurement awards, including grants, and cooperative agreements, the causes for suspension and debarment cover a wide range of activities from fraud, tax evasion, “any other offense indicating a lack of business integrity,” id., to “any other cause of so serious or compelling a nature that it affects the present responsibility of the contractor or subcontractor.” FAR 9.406-2(c); FAR 9.407-2(c); see also Lew, supra note 2, at 1 (“[F]or too long, too many federal agencies have failed to adequately use the suspension and debarment tools that are placed at their disposal or have failed to even maintain the most basic program capabilities required to suspend or debar non-responsible parties.”).
  7. See FAR 9.406-1(a).
  8. See FAR 9.403 (“Debarring Officials”; “Suspending Official”); FAR 9.406-1(a); FAR 9.407-1(a).
  9. Most commonly, debarment is based on prior criminal conviction or civil judgment. Joshua Schwartz, Cases and Materials for a Survey of Government Procurement Law 632–33 (2018) (citing FAR 9.406-2(a)). However, debarment can be based on a number of issues. FAR 9.406-2. Debarment may also be based on the contractor’s past violations of federal contracts, FAR 9.406-2(b)(1)(i), or “[a]ny other cause of so serious and compelling a nature that it affects the present responsibility of a [g]overnment contractor or subcontractor.” FAR 9.406-2(c); FAR 9.407-2(c). This provision, commonly referred to as the “catch-all,” gives the SDO substantial discretion when deciding whether to suspend or debar a federal contractor. Complaint at 6, Int’l Relief & Dev. v. U.S. Agency for Int’l Dev., No. 15-854 (RCL) (D.D.C. June 9, 2015) [hereinafter Complaint].
  10. See FAR 9.402.
  11. FAR 9.406-2(a); FAR 9.406-2(b).
  12. FAR 9.406-1(a); see alsoFAR 9.406-2(a); FAR 9.406-2(b).
  13. See FAR 9.402(b).
  14. FAR 9.406-4(a), (b).
  15. FAR 9.407-1(b)(1).
  16. See FAR 9.402.
  17. Suspension of a federal contractor must be based on adequate evidence. FAR 9.407-1(b) (1). When determining if adequate evidence is available, the suspending agency should look through “contracts, inspection reports, and correspondence” considering how much information on the misconduct is available, if the alleged misconduct is confirmed or corroborated, the credibility of the information, and any possible inferences. Id. Adequate evidence is enough information to “support the reasonable belief that a particular act or omission occurred.” FAR 2.101.
  18. FAR 9.407-1(b)(1).
  19. See FAR 9.402(b).
  20. See FAR 9.402.
  21. U.S. Gen. Serv.’s Admin., Suspension and Debarment and the Acquisition Workforce: What You Need to Know (2014), https://www.gsa.gov/portal/getMediaData?mediaId=193427 [https://perma.cc/QK55-BLJK] [hereinafter Suspension and Debarment and the Acquisition Workforce]. Present responsibility is a fact-specific inquiry, where the SDO should focus on the contractor’s ability to perform government contracts with honesty, competency, and integrity. Id.
  22. FAR 9.406-1(a)(1) (“Whether the contractor had effective standards of conduct and internal control systems in place at the time of the activity which constitutes cause of debarment [or suspension] or had adopted such procedures prior to any [g]overnment investigation of the activity cited as a cause for debarment.”); see, e .g., FAR 9.407-1(b)(2); FAR 9.406-1(a).
  23. FAR 9.406-1(a)(2) (“Whether the contractor brought the activity cited as a cause for debarment [or suspension] to the attention of the appropriate [g]overnment agency in a timely manner.”).
  24. FAR 9.406-1(a)(3) (“Whether the contractor has fully investigated the circumstances surrounding the cause for debarment [or suspension] and, if so, made the result of the investigation available to the debarring official.”); FAR 9.406-1(a)(4) (“Whether the contractor cooperative fully with [g]overnment agencies during the investigation and any court or administrative action.”); FAR 9.406-1(a)(5) (“Whether the contractor has paid or has agreed to pay all criminal, civil, and administrative liability for the improper activity, including any investigative or administrative costs incurred by the [g]overnment, and has made or agreed to make full restitution.”); FAR 9.406-1(a)(6) (“Whether the contractor has taken appropriate disciplinary action against the individuals responsible for the activity which constitutes causes for debarment [or suspension].”); FAR 9.406-1(a)(7) (“Whether the contractor has implemented or agreed to implement remedial measures, including any identified by the [g]overnment.”); FAR 9.406-1(a)(8) (“Whether the contractor has instituted or agreed to institute new or revised review and control procedures and ethics training programs.”); FAR 9.406-1(a)(9) (“Whether the contractor has had adequate time to eliminate the circumstances within the contractor’s organization that led to the cause for debarment [or suspension].”); FAR 9.406-1(a)(10) (“Whether the contractor’s management recognizes and understands the seriousness of the misconduct giving rise to the cause for debarment and has implemented programs to prevent recurrence.”). It is the duty of the contractor to present the SDO with evidence of mitigating factors or remedial actions as soon as the contractor suspects that misconduct has occurred. FAR 9.407-1(b)(2).
  25. See FAR 9.402(b).
  26. See Jessica Tillipman, New ISDC Report: Diversifying the Government Toolbox to Protect Taxpayer Dollars, FCPA Blog (June 21, 2016), http://www.fcpablog.com/blog/2016/6/21/new-isdc-debarment-report-diversifying-the-government-toolbo.html [https://perma.cc/U6DQ-VM4N].
  27. FAR 9.407-1(b)(1).
  28. FAR 9.406-1(a).
  29. See FAR 9.406-3(b)(1), FAR 9.407-3(b)(1).
  30. FAR 9.406-3(b)(2), FAR 9.407-3(b)(2).
  31. FAR 9.406-3(b)(2), FAR 9.407-3(b)(2).
  32. Schwartz, supra note 9, at 632–33.
  33. See FAR 9.405.
  34. See FAR 9.404(b).
  35. See FAR 9.405(a). No Agency may solicit offers from, make awards to, or approve listed contractors to perform subcontracts from excluded parties listed on SAM. Id. Once the SDO has suspended or debarred a contractor, the contractor must be denied from receiving future federal awards, unless there is a compelling circumstance for awarding the excluded contractor taxpayer dollars. FAR 9.405(a). Because the suspension and debarment system is not a punitive system, existing contracts between the federal government and the suspended or debarred contractor are not affected. FAR 9.405-1(a).
  36. John V. Kelly, Office of Inspector General, U.S. Dep’t. of Homeland Sec., DHS Needs to Strengthen Its Suspension & Debarment Program, Report No. OIG-18-41 7 ( Jan. 25, 2018).
  37. See, e.g., Complaint, supra note 9, at 9; Jessica Tillipman, A House of Cards Falls: Why “Too Big to Debar” Is All Slogan and Little Substance, 80 Fordham L. Rev. Res Gestae, 49, 57–58 (2012).
  38. FAR 9.407-1(c) (A suspension of a contractor includes “all divisions or other organization elements . . . unless the suspension decision is limited by its terms to specific divisions, organizational elements, or commodities.” Further, the SDO “may extend the suspension decision to include any affiliates of the contractor if they are (1) [s]pecifically named; and (2) [g]iven written notice of the suspension and an opportunity to respond.”).
  39. See, e.g., Tillipman, supra note 37, at 53 (arguing SDOs must carefully consider mitigating factors and the government’s interest when pursuing S&D actions because S&D actions have the power to put a contractor out of business).
  40. Letter from David M. Sims, Chair ISDC, to Hon. Jason Chaffetz, Chairman, Comm. on Oversight & Gov. Reform, U.S. House of Rep., 873 Report for Fiscal Year 2016 (Jan. 12, 2017), https://s3.amazonaws.com/sitesusa/wp-content/uploads/sites/272/2017/03/873-Report-FY-2016.pdf [https://perma.cc/KF5S-WYRB ].
  41. About the ISDC, Interagency Suspension and Debarment Committee, https://www.acquisition.gov/isdc-home [https://perma.cc/Q6D8-42W7] (last visited Nov. 15, 2018) [hereinafter About the ISDC].
  42. Suspension and Debarment and the Acquisition Workforce, supra note 21.
  43. Blumont, formerly known as IRD, is a nonprofit, nongovernmental organization, whose mission is to deliver “innovative, evidence based, locally driven solutions that advance the aspirations of people, communities and donor partners worldwide.” About Blumont, Blumont (2018), http://www.blumont.org [https://perma.cc/F2X5-P9SS]. Blumont is active throughout countries in Africa, Asia, the Americas, and the Middle East, including Afghanistan. Id.
  44. Scott Higham, Jessica Schulberg & Steven Rich, Doing Well by Doing Good: The High Price of Working in War Zones, Wash. Post (May 4, 2014), https://www.washingtonpost.com/investigations/doing-well-by-doing-good-the-high-price-of-working-in-war-zones/2014/05/04/2d5f7ca8-c715-11e3-9f37-7ce307c56815_story.html?utm_term=.490feacd8b43 [https://perma.cc/4U5B-HJL5] [hereinafter Doing Well by Doing Good]. Due to decreases in funding, USAID has very limited employees and has lost thousands of employees. Id.
  45. Id. With the Iraq and Afghanistan wars, IRD expanded exponentially, increasing its annual revenue from $1.2 million to $706 million, with most of that profit coming from the USAID. Id.
  46. Scott Higham & Steven Rich, USAID Suspends IRD, Its Largest Nonprofit Contractor in Iraq and Afghanistan, Wash. Post (Jan. 26, 2015), https://www.washingtonpost.com/investigations/usaid-suspends-ird-its-largest-nonprofit-contractor-in-iraq-and-afghanistan/2015/01/26/0cafe16a-a599-11e4-a2b2-776095f393b2_story.html?utm_term=.a49f7c95b924 [https://perma.cc/BPN9-7B8H].
  47. Id. USAID reported more than three billion dollars of total revenue. Id.
  48. See Doing Well by Doing Good, supra note 44 (criticizing IRD for paying its top employees salaries of $185,000 to $330,000; paying the CEO $485,000; and awarding its thirty-eight employees more than $3.4 million in bonuses between 2007 and 2014 when employees in similarly-situated NGOs receive hundreds of thousands of dollars less in annual salaries and rarely ever receive bonuses).
  49. Id. (explaining IRD “has hired at least [nineteen] employees from USAID [with] . . . [s]everal of them c[oming] directly from their desks at [USAID] to occupy important posts at the company”).
  50. Scott Higham, Longtime USAID Contractor Embroiled in Scandal Fires Top Managers, Others, Wash. Post (Feb. 20, 2015), https://www.washingtonpost.com/news/federal-eye/wp/2015/02/20/longtime-usaid-contractor-embroiled-in-scandal-fires-top-managers-others/?utm_term=.0077b35e9393 [https://perma.cc/R8ZV-HP6X] [hereinafter Longtime USAID Contractor Embroiled in Scandal].
  51. See Doing Well by Doing Good, supra note 44 (detailing how Dr. Keys made $485,000 in 2011, while his counterpart at Catholic Relief Services was paid $300,000 and his counterpart at Save the Children earned $393,000).
  52. Id.
  53. Id.
  54. Id.
  55. Longtime USAID Contractor Embroiled in Scandal, supra note 50.
  56. Doing Well by Doing Good, supra note 44.
  57. See Rajiv Chandrasekaran, U.S. Military Dismayed by Delays in 3 Key Development Projects in Afghanistan, Wash. Post (Apr. 28, 2011), https://www.washingtonpost.com/world/us-military-dismayed-by-delays-in-3-key-development-projects-in-afghanistan/2011/04/22/AFD6jq8E_story.html?utm_term=.026a8411aa5b [https://perma.cc/5DE9-HYKB].
  58. See id.
  59. Letter from Aman S. Djahanbani, Suspending and Debarring Official, U.S. Agency for Int’l Dev., to Roger M. Ervin, President, Int’l Relief and Dev. (Jan. 26, 2015) (on file with the American Bar Association).
  60. See Complaint, supra note 9, at 6; Letter from Aman Djahanbani to Roger Ervin, supra note 59. USAID initiated suspension proceedings against IRD under the catch-all provision. IRD was suspended under the Nonprocurement Common Rule (NCR), 2 C.F.R. §§ 180.700(b), (c), 180.800(d). See Complaint, supra note 9, at 6.
  61. See Order at 1, Int’l Relief & Dev. v. U.S. Agency for Int’l Relief & Dev, No. 1:15-854 (RCL) (D.D.C. Aug. 3, 2015) [hereinafter Order].
  62. See id. The Court in International Relief and Dev. v. U.S. Agency for International Development was unable to reach the merits of the case because the “defendants’ suspension decisions were contrary to law in violation of the National Defense Authorization Act of 2013 § 861(a), and consequently, the [APA].” Id.
  63. See Complaint, supra note 9, at 21–22; Pls.’ Mot. for Prelim. Inj. & Req. for Expedited Hr’g at 3, Int’l Relief & Dev. v. U.S. Agency for Int’l Dev., No. 1:15 cv-854 (D.D.C. June 9, 2015).
  64. Press Release, Int’l Relief & Dev., IRD Response to USAID Suspension Notice ( Jan. 26, 2015) [hereinafter IRD Response to USAID Suspension Notice] (explaining “IRD’s corrective action initiatives . . . in the areas of leadership, compliance and internal controls”).
  65. Id.
  66. Complaint, supra note 9, at 13–16.
  67. Id. at 13.
  68. Pls.’ Mot. for Prelim. Inj. and Req. for Expedited Hr’g, supra note 63.
  69. Roger Ervin joined IRD as CEO on December 1, 2014. Ervin formerly worked at “LMI Consulting, a non-profit government consulting firm in defense, intelligence, healthcare, energy and environment, homeland security, and civil government sectors.” IRD Response to USAID Suspension Notice, supra note 64. Mr. Ervin “has over [twenty-five] years of experience leading and managing large organizations with complex missions, including executive positions at the US Department of State, the US Commercial Service, and the African Development Bank.” Statement on Continuance of USAID Suspension, Media Advisory, Int’l Relief & Dev. (Apr. 14, 2015).
  70. Statement on Continuance of USAID Suspension, Media Advisory, Int’l Relief & Dev. (Apr. 14, 2015).
  71. Longtime USAID Contractor Embroiled in Scandal, supra note 50. Ervin reduced the total number of employees at IRD’s headquarters from 150 to 100. Id.
  72. Id.
  73. Complaint, supra note 9, at 14.
  74. Id.
  75. Id.
  76. Id. at 22.
  77. Id. at 36.
  78. Id.
  79. See Doing Well by Doing Good, supra note 44.
  80. Id. (criticizing IRD for paying its top employees salaries of $185,000 to $330,000; paying the CEO $485,000; and awarding its [thirty-eight] employees more than $3.4 million in bonuses between 2007 and 2014 when employees of similarly situated NGOs received hundreds of thousands of dollars less in annual salaries and rarely received bonuses).
  81. Id.
  82. Letter from Bob Corker, Senator, Chairman, Comm. on Foreign Relations, to Dr. Rajiv Shah, Administrator, U.S. Agency for Int’l Dev. (Jan. 16, 2015) [hereinafter Corker Letter].
  83. Letter from Aman Djahanbani to Roger Ervin, supra note 59.
  84. Corker Letter, supra note 82, at 4.
  85. Id.
  86. Id.
  87. Letter from Aman Djahanbani to Roger Ervin, supra note 59.
  88. Kelly, supra note 36, at 8-9.
  89. Id. at 3–4.
  90. Id. at 9.
  91. Id. at 4.
  92. Id.
  93. Id.
  94. Id.
  95. Id. at 4–6; Out of five administrative agreements and one addendum to an administrative agreement approved by the SDO between FY 2012 and February 28, 2018, only two, or forty percent, were found to be documented properly. Id. at 5.
  96. Id. at 5.
  97. Id.
  98. Id.
  99. Id. at 6.
  100. Id.
  101. Id.
  102. DHS was missing documentation for five out of nine suspension cases in FY 2016. Id.
  103. Id.
  104. Id. at 7, Table 1—FY 2016, Suspension and Debarment Activity DHS Reported Through the ISDC Annual Report and Documentation Provided for Final Decisions.
  105. Id. at 6.
  106. Id.
  107. Id.
  108. FEMA could not provide signed final debarment notices for thirty-seven of fifty-seven debarment actions for FY 2016. Id.
  109. Kelly, supra note 36, at 6.
  110. Id.
  111. Id. at 7, Table 1.
  112. See id. DHS reported 280 debarments to ISDC for FY 2016; however, proper documentation was provided for only 252 debarments. Id.
  113. See, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419–20 (1971).
  114. Kelly, supra note 36, at 7.
  115. Id. The FAR mandates that SAM be updated within three working days after an action becomes effective. FAR 9.404(c)(3).
  116. Kelly, supra note 36, at 7.
  117. See id.
  118. Id. “According to FEMA, [SAM and FAPIIS] were not updated for two reasons. First, the previous FEMA suspension and debarment coordinator did not upload [five] of the [thirty-five] debarments and the [two] administrative agreements. Second, current FEMA suspension and debarment staff were supposed to upload the remaining [thirty] debarments, but did not gain access to SAM until March 2017 and uploaded the debarments shortly thereafter.” Id. at 8.
  119. Id. at 7.
  120. Id.
  121. Id. at 8.
  122. See, e.g., FAR 9.405(a), (b).
  123. Kelly, supra note 36, at 8–9.
  124. Id. at 9.
  125. Id.
  126. Id.
  127. See id.
  128. See id., FAR 9.402(a).
  129. Report for Fiscal Year 2016, supra note 40, at 1 (citations omitted). These reports are commonly known as “873 reports.” See, e.g., id.
  130. See id.; Interagency Suspension & Debarment Comm., 873 Report for Fiscal Year 2015 to Committee on Oversight and Government Reform (June 15, 2016), https://s3.amazonaws.com/sitesusa/wp-content/uploads/sites/272/2016/09/ISDC-873-Report-FY-2015.pdf [https://perma.cc/6RDD-N8VE ] [hereinafter 873 Report for Fiscal Year 2015]; Interagency Suspension & Debarment Comm., 873 Report for Fiscal Year 2014 to Committee on Homeland Security and Governmental Affairs (Mar. 31, 2015), https://s3.amazonaws.com/sitesusa/wp-content/uploads/sites/272/2015/04/873report2014.pdf [https://perma.cc/H4UG-N7Q8] [hereinafter 873 Report for Fiscal Year 2014].
  131. See 873 Report for Fiscal Year 2016, supra note 40, at 2–3; 873 Report for Fiscal Year 2015, supra note 130, at 3–4; 873 Report for Fiscal Year 2014, supra note 130, at 3.
  132. 873 Report for Fiscal Year 2016, supra note 40, at 2-3.
  133. See 873 Report for Fiscal Year 2015, supra note 130, at 2.
  134. Id.
  135. See id. at 3–4; see also Interagency Suspension and Debarment Committee (ISDC), Government Services Administration, https://www.acquisition.gov/isdc-debarring-officials [https://perma.cc/8GJS-99CS] (last visited Nov. 20, 2018) [hereinafter Interagency Suspension and Debarment Committee].
  136. See 873 Report for Fiscal Year 2016, supra note 40, at 1 n. 1.
  137. See Interagency Suspension and Debarment Committee, supra note 135.
  138. See About the ISDC, supra note 41.
  139. See id.; 873 Report for Fiscal Year 2014, supra note 130, at 3; see also 873 Report for Fiscal Year 2015, supra note 130, at 3.
  140. See About the ISDC, supra note 41.
  141. See, e.g., U.S. Gov’t Accountability Off., GAO-11-739, Suspension and Debarment: Some Agency Programs Need Greater Attention, and Government wide Oversight Could be Improved 12 (2011) [hereinafter GAO-11-739]; see also World Bank Office of Suspension and Debarment, Report on Functions, Data and Lessons Learned 2007–2015, at 18–19, 24 (2d ed. 2015) [hereinafter World Bank].
  142. See, e.g., World Bank, supra note 141, at i; 873 Report for Fiscal Year 2015, supra note 130, at 1; 873 Report for Fiscal Year 2014, supra note 130, at 1.
  143. The 873 Reports from Fiscal Year 2014, Fiscal Year 2015, and Fiscal Year 2016 mention no weaknesses or potential failures of suspension and debarment programs. See 873 Report for Fiscal Year 2016, supra note 40; 873 Report for Fiscal Year 2015, supra note 130; 873 Report for Fiscal Year 2014, supra note 130.
  144. Kelly, supra note 36, at 9.
  145. GAO-11-739, supra note 141, at 4 (explaining that SDO discretion gives the SDO, and his or her agency, the flexibility which “enables each agency to establish a suspension and debarment program suitable to its mission and structure”).
  146. See 873 Report for Fiscal Year 2014, supra note 130, at 5 (defining an administrative agreement as “a document that is ordinarily negotiated after the recipient has responded to a notice of suspension or proposed debarment. The election to enter into an administrative agreement is solely within the discretion of the SDO, and will only be used if the administrative agreement appropriately furthers the [g]overnment’s interest. While administrative agreements vary according to the SDO’s concerns regarding each respondent, these agreements typically mandate the implementation of several provisions to improve the ethical culture and corporate governance processes of a respondent in a suspension or debarment proceeding. Agreements may also call for the use of independent third party monitors or the removal of individuals associated with a violation from positions of responsibility within a company.”).
  147. See id. (defining a referral as “a written request prepared in accordance with agency procedures and guidelines, supported by documentary evidence, presented to the SDO for issuance of a notice of suspension or notice of proposed debarment as appropriate under FAR Subpart 9.4 and 2 C.F.R. Part 180”).
  148. See id. (explaining that show cause letters “inform the recipient that the agency debarment program is reviewing matters for potential SDO action” [and that] . . . [t]his is a discretionary tool employed where appropriate to the circumstances of the matter under consideration”).
  149. Kara M. Sacilotto & Craig Smith, Taking the Long View on the Interagency Suspension & Debarment Council’s Latest Report, Bloomberg BNA: The Federal Contracts Report 2 (Apr. 15, 2014), https://www.wileyrein.com/assets/htmldocuments/Taking_the_Long_View_on_the_Interagency_Suspension_Debarment_Councils_Latest_Report.pdf [https://perma.cc/3LS7-VXRV].
  150. 873 Report for Fiscal Year 2015, supra note 130, at 2.
  151. Id. at 5.
  152. Id.
  153. Id.
  154. See id. at 2; see also 873 Report for Fiscal Year 2014, supra note 130, at 2.
  155. See Complaint, supra note 9, at 16.
  156. See id. at 13–16.
  157. Kelly, supra note 36, at 4; see also World Bank, supra note 141, at 11–12 (defining sanctionable practices).
  158. See Kelly, supra note 36, at 4.
  159. See World Bank, supra note 141, at 18.
  160. See id.
  161. See Kelly, supra note 36, at 5, 9; see World Bank, supra note 141, at 18.
  162. See World Bank, supra note 141, at 18.
  163. See Kelly, supra note 36, at 5.
  164. See id.
  165. See World Bank, supra note 141, at 18.
  166. Kelly, supra note 36, at 9.
  167. World Bank, supra note 141, at 18.
  168. Id.