tors by procedures which, while they result in informing the supplier of reasons for his not being listed, do not include opportunity for an adversary hearing. 23/ Such exclusion or removal is a form of debarment. 24/

f. There are no published regulations concerning debarment procedures under the Buy American or Davis-Bacon Acts 25/ or pursuant to regulations of the Secretary of Labor under Reorganization Plan No. 14 of 1950 with reference to debarment from government construction contracts and subcontracts and certain federally assisted construction work. 26/

a.

Inadequate rules concerning the grounds and scope of debarment: Published procurement regulations do not explicitly set forth all the grounds or the standards for administrative debarment, and vague, generalized criteria have led to debarments on questionable grounds, 27/ not reasonably related to government contracting, includ

ing the exercise of the Constitutional privilege against self-incrimination. 28/

b.

The explicit grounds set forth in regulations for administrative debarment include conviction of fraud or other criminal offenses incident to government contracting, 29/ but do not presently include debarment based on administrative determinations of such conduct supported by substantial evidence; instead, contractors suspected of such conduct are ordinarily suspended, without opportunity for an adversary hearing (and in some cases without notice), pending completion of appropriate legal proceedings. 29a/

c. Debarments ordinarily extend to the business affiliates of

debarred firms and individuals, 30/ but the published regulations

do not specify the criteria for determining affiliation or for extending debarment to such affiliates. 31/

d. In cases of established or suspected fraud by owners, officers or employees of business firms, there are no published criteria or standards by which that conduct will be imputed to the firm itself or by which termination of such person's relationship to the firm will avoid or remove debarment of the firm. 32/

e. The regulations of the Secretary of Labor appear to be unclear on whether firms listed by the Comptroller General for violations of the Davis-Bacon Act are ineligible to participate in certain federally assisted construction work. 33/

3.

The length and disparity of debarment periods:

a.

Individuals or firms suspended from government contracting on grounds of suspected fraud or criminal conduct frequently remain in a debarred status for varying periods, up to several years, at the request of the Department of Justice so as not to prejudice any pending litigation. 34/

b.

The Armed Services Procurement Regulation provides that "as

a general rule, a period of debarment should not exceed 5 years following the date of conviction for fraud or other criminal offense, or 3 years following the date of debarment for any other cause," 35/ whereas the General Services Administration Procurement Regulations provide that debarment "shall generally be made for periods of not less than one and

not more than three years, depending on the seriousness of the offense." 36/ Neither regulation (nor any other published procurement regulation) in terms provides for removal of debarment prior to the expiration of the debarment period upon a showing of present responsibility as a government contractor, nor is there a practice of such removal.

C.

The military departments for the most part apply the maximum

5 year period of administrative debarment in cases of criminal convictions

without regard to the term of the criminal sentence. 37/ In many cases

the period of suspension for suspected fraud or criminal conduct in fact exceeds this 5 year period. 38/

d. There are no published criteria or standards on computation

of the debarment period or upon relating it to the sentence under a

conviction.

4.

The combination of prosecutive and judicial functions in debarment decision-making:

a. With the exception of Walsh-Healey Act debarments, 39/

applicable statutes and regulations do not provide for separation of

function between those who propose contractor debarment and those who decide it. 40/ Nor is such separation in fact practiced to any extent. 41/

II. COMMITTEE RECOMMENDATIONS

A. Recommendations Relating to the Safeguards of Procedural Fairness:

Recommendation 1:

(a) Except as provided in subparagraph b, below, government debarment of an individual or firm from the contracts or subcomtracts of a government department or agency or from participating in any federally assisted construction work should be preceded by (i) notice of proposed debarment to the parties in question, including all affiliated firms sought to be debarred, and (ii) opportunity to such parties to have a trial-type hearing before an impartial agency board or hearing examiner in the event there are disputed questions of fact relevant to the debarment issue.

(b) Debarments from government contracts and subcontracts made in conformity with subparagraph (a),above, may be applied by other government agencies to their contracting and subcontracting without opportunity for an adversary hearing but only after notice and opportunity to the parties concerned, including all affiliated firms sought to be debarred, to explain why the debarment should not be so extended in whole or in

part.

(c) Notices of proposed debarment should be supported by reasons. (d) No agency should exclude or remove on grounds of lack of responsibility any individual or firm from any list of qualified persons eligible for government contracts or subcontracts except in conformity with the principles set forth herein and in Recommendations 2 and 3.

(e) The provisions of this Recommendation 1 shall not apply

to the individual rejection of any bid or proposal, the procedures for which are set forth in Recommendation 4.

Recommendation 2:

(a) In cases of criminal conviction or civil judgment affecting an individual's or firm's present responsibility as a government contractor or subcontractor, or upon probable cause for belief that an individual or firm has committed fraud or has engaged in other conduct showing a substantial lack of present responsibility as a government contractor or subcontractor as determined in writing by the agency head or his designee, notice of proposed debarment may also provide for the temporary suspension of the individual or firm from further contracting or subcontracting with the government agency concerned pending administrative determination of the debarment issue. Such suspensions should not exceed a reasonable time, and in no event should they exceed the time limits set forth in subparagraph (b), below. (b) Any suspension authorized in accordance with subparagraph

(a), above, should be subject to the following limitations:

(1) If a notice of suspension and proposed debarment is based in whole or in part upon alleged fraud incident to obtaining or performing a government contract or subcontract or upon any other alleged conduct showing a present lack of integrity or honesty as a government contractor or subcontractor and if within one year of such notice of suspension and proposed debarment the individual or firm