Addressed to Attorney General (AG) Merrick Garland and Deputy AG Lisa O. Monaco, the letter expressed the legislators’ concern about the DOJ’s “inability or unwillingness to use its authority to suspend or debar corporate criminals from the government contracting process.” The lawmakers asserted that the Department could debar entities for a wide range of transgressions, even when the alleged wrongdoing falls outside a company’s federal contracting activities.
Senator Warren repeated her concern in a joint press release with Senator Lujan: “We cannot allow these corporate entities to continue to engage in criminal misconduct and get by with a mere slap on the wrist,” she said. “The Department of Justice can and should expand its use of these suspension and debarment authorities to protect the use of government resources and discourage recidivism by big business.”
“No one is above the law. Corporate criminals must be held accountable, and it’s critical that the Justice Department utilizes its authority to ensure that no one can abuse public trust,” said Senator Luján via the press release.
DOJ authority to debar federal contractors derived from FAR regulations
The agencies in the FAR Council—the Department of Defense (DoD), the Government Services Administration (GSA), and the National Aeronautical and Space Administration (NASA)—are the federal agencies most heavily involved in entering into contracts to procure goods and services for the federal government. The Federal Acquisition Regulation (FAR) is the principal set of rules in the Federal Acquisition Regulations System, which governs the acquisition process through which the federal government purchases goods and services.
According to the Senators’ letter, the (FAR) “permits an agency to debar an entity if it is convicted of or receives a civil judgment for “’any…offense indicating a lack of business integrity or business honesty’” (citing 48 C.F.R. 9.406-2(a)). Moreover, an agency can debar an entity based only on a “preponderance of the evidence” for “any other cause of so serious or compelling a nature that it affects the present responsibility of the contractor or subcontractor” (48 C.F.R. 9.406-2(b)). The lawmakers further noted that “[b]efore or while a debarment is being considered, agencies can suspend a contractor if there is “’adequate evidence’” that suspension is necessary to protect the government’s interests” (48 C.F.R. 9.407-1(b)(1)).
Settlement agreements are not enough to stop egregious offenders, the Senators asserted, citing three companies as examples