a trial-type hearing in contested debarment cases since, in their opinion, government contracting is merely a privilege, and view any such procedure as burdensome and possibly dangerous in that it might impair exclusion of the dishonest from government contracting. The Committee is persuaded, however, that whatever substance these views may have, they are outweighed by the benefits to fair governmental administration which will flow from adoption and implementation of the Committee's recommendations. Recommendation 1: The opportunity for a trial-type hearing afforded by this recommendation refers essentially to the kind of hearing required by 7(c) of the Administrative Procedure Act which provides in relevant part as follows: "Except as otherwise provided, the proponent of a rule or order shall have the burden of proof. Any oral or documentary evidence may be received, but every agency shall as a matter of policy provide for the exclusion of irrelevant, immaterial, or duly repititious evidence and no sanction shall be imposed or rule or order be issued except upon consideration of the whole record or such portions thereof as may be cited by any party and as supported by and in accordance with the reliable, probative, and substantial evidence. Every party shall have the right to present his case or defense by oral or documentary evidence, and to conduct such crossexamination as may be required for a full and true disclosure of the facts For the purposes of this recommendation, the Committee intends that debarment should be interpreted broadly to include every type or kind of agency action, however called and at whatever level of agency authority performed, which has the effect or result of excluding individuals or firms from eligibility or consideration for government contracts or subcontracts or from participation in any federally assisted work or project for either fixed or indefinite periods of time. Thus, the recommended procedures of notice and opportunity for a trial-type hearing to decide material issues of fact should be applied not only to agency actions officially denominated debarment, 42/ but also to de facto debarments or debarmenttype actions such as inclusion on agency or bureau "review lists" or "experience lists" of firms of questionable responsibility, 43/ and exclusions or removals from agency lists of persons eligible for agency contracts or subcontracts. 44/ Obviously, it is not intended that every rejection of a bid or offer or denial of a contract be viewed as a debarment subject to these procedures, and paragraph (e) of Recommendation 1 so provides. What is sought to be reached by these procedures is every form of agency black-listing of proposed contractors or subcontractors. would continue to exercise judgment as heretofore in approving or denying individual contracts or subcontracts in conformity with published criteria for determining a contractor's responsibility, 45/ subject to the provisions of Recommendation 4. Contracting officers While several procurement agencies do not object to providing this opportunity for a trial-type hearing or say they would grant such a hearing on request (AEC, Agriculture, GSA, HEW, NASA, Navy, SBA), other contracting agencies assert there is no showing of need for this change. Professor Kenneth Culp Davis has written: "The true principle is that a party who has a sufficient This principle not only reflects current notions of administrative fairness, but is becoming judicially recognized to be among the requirements of procedural due process. Thus, in Greene v. McElroy, 360 U. S. 474, 496 (1959), the Supreme Court had occasion to remind government officials that "Certain principles have remained relatively immutable in our jurisprudence. One of these is that where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the requirements of confrontation and cross-examination. They have ancient roots . . 11 Apart from the serious doubts of the legality of contested debarments involving denials of a trial-type or due process hearing for adjudicating disputed material facts, it is the Committee's view that considerations of fair governmental administration require the employment of procedures designed to minimize error and to protect the interests of both the individual and the government. The claim of additional but not undue administrative burden incident to providing cases such a hearing or the belief that existing ex parte debarments are not Recommendation 1 provides for debarment decisions involving disputed material facts to be judicially made by an independent agency board or hearing examiner on the record of a trial-type hearing. In the Department of Defense, debarments by one military department or by the Defense Supply Agency by their terms extend throughout the Department of Defense. Therefore, in such contested cases it would appear appropriate that the debarment function in the Department of Defense be assigned to a single agency or board, such as the Armed Services Board of Contract Appeals. The Army JAG and the Defense Supply Agency oppose a single independent debarment board for the Department of Defense as detracting from the procurement responsibility of the military departments and agencies, and the Air Force comments that giving any such board responsibility for fixing the period of debarment, "would be completely unacceptable since debarment is essentially a 'procurement management tool' and the period of debarment should properly be fixed by procurement officials." If the concept of opportunity for a trial-type hearing in contested debarment cases is accepted, it follows that the trier of fact should not be the proponent of the debarment order or subordinate to him. While Recommendation 1(a) in terms does not foreclose such an independent board or examiner in each of the military departments or agencies, the fact that debarment by any such agency is effective throughout the Department of Defense indicates the appropriateness of a single debarment board for the Department of Defense, such as the Armed Services Board of Contract Appeals. Moreover, the Committee believes a single debarment board in the Department of Defense would achieve greater uniformity of decision than would likely happen with separate boards. And if the concept of a single board for the Department of Defense is persuasive, assigning debarment adjudications to the Armed Services Board of Contract Appeals which already affords a trial-type hearing in contractual disputes also seems preferable to establishing a separate board. The comments of the Armed Services Board of Contract Appeals do not suggest unwillingness to take on this function. The Air Force objects to the hearing board of examiner's fixing the debarment period. In cases in which a trial-type hearing on disputed facts is had, the Air Force would apparently have the terms of the debarment order decided not by the hearing board or examiner but by the proponent of the debarment order. In this context, we think one who decides should hear. We doubt that fair or informed decisions would result from such a separation. Moreover, desirable uniformity of treatment of like cases would be diminished by this separation of function. The fallacy of the separation is exposed by viewing debarment primarily or solely as "a procurement management tool." In contested cases at least, we think the entire debarment determination should be made by the trier of fact. The Special Subcommittee of the American Bar Association has commented that Recommendation 1(a) seems to omit an important protection. It appears to provide an adversary hearing only 'in the event there are disputed questions of fact relevant to the debarment issue.' But there may often arise a situation in which the facts are not in dispute, as in the case of a civil judgment against a contractor, or an admission of past derelictions sufficient to support a debarment, and the contractor may be able to show that because of peculiar circumstances, change of management, etc., the admitted facts do not really militate against the contractor as presently organized. What is needed here is not an adversary hearing' in the sense of an impartial factfinding, but an opportunity to explain and to demonstrate present responsibility as a contractor. We believe that the recommendations should be broadened in this respect.' If the facts are in dispute, argument along the lines indicated could be appropriately presented to the hearing board. In the absence of |