Faced with Possible Debarment, What Should You Do?

1. Faced with Possible Debarment, What Should You Do? Society of Corporate Compliance & Ethics Twelfth Annual Compliance & Ethics Institute Date: October 8, 2013 Attorney Advertising. Prior results do not guarantee a similar outcome.

2. Speakers • Todd J. Canni McKenna Long & Aldridge LLP • Steven A. Shaw Covington & Burling LLP • John T. Boese Fried, Frank, Harris, Shriver & Jacobson LLP • Michael J. Anstett Fried, Frank, Harris, Shriver & Jacobson LLP

3. Federal Suspension & Debarment • Suspension and debarment are discretionary tools available to the Government to protect the public interest. • Agency Suspending and Debarring Officials (SDOs) have the authority to determine that a contractor is ineligible to receive Government contracts and subcontracts. • The ground rules are set forth in the Federal Acquisition Regulation (FAR) and agency supplements. • The focus is on the contractor’s present responsibility.

4. Federal Suspension & Debarment • Suspension is a temporary, indefinite period of exclusion used when there is an immediate need to protect the Government (i.e., during an investigation). • Debarment is a specific term of exclusion used to protect the Government from nonresponsible contractors. • Companies and individuals are subject to suspension and/or debarment. • Suspension and debarment are Government-wide.

5. Mitigating Factors for Consideration • Ten factors for debarring officials to consider. • Factors are set forth in FAR 9.406-1(a). • No one factor is determinative. • Burden is on the contractor to demonstrate present responsibility. • Failure to comply with Mandatory Disclosure Rule is an independent ground for debarment.

6. Mitigating Factors • Whether the contractor had effective standards of conduct and internal control systems or had adopted such procedures prior to any Government investigation. • Whether the contractor brought the matter to the attention of the appropriate Government agency in a timely manner. • Whether the contractor has fully investigated the circumstances surrounding the matter and, if so, made the result of the investigation available to the debarring official.

7. Mitigating Factors • Whether the contractor cooperated fully with Government agencies during the investigation and any court or administrative action. • 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 Government, and has made or agreed to make full restitution.

8. Mitigating Factors • Whether the contractor has taken appropriate disciplinary action against the individuals responsible for the activity • Whether the contractor has implemented or agreed to implement remedial measures, including any identified by the Government. • Whether the contractor has instituted or agreed to institute new or revised review and control procedures and ethics training programs.

9. Mitigating Factors • Whether the contractor has had adequate time to eliminate the circumstances within the contractor’s organization that led to the cause for debarment. • 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.