In response to the novel coronavirus (COVID-19) pandemic, the Department of Defense (DoD) and General Services Administration (GSA) have taken action to modify their processes and procedures in the wake of state-required stay-at-home directives and social distancing guidelines.
In particular, on April 20, the DoD issued Class Deviation 2020-O0014 to allow flexibilities for DoD Suspension and Debarment Officials (SDOs) with regard to the requirements set forth by Federal Acquisition Regulation (FAR) 9.406-3(b)(1), (c), and (e); and 9.407-3(b)(1), (c), and (d)(4). These regulations allow agencies to establish procedures governing the debarment and suspension decision-making process, and require SDOs to notify contractors of a suspension, proposed debarment, or debarment via certified mail, return receipt requested. With this deviation in place, SDOs are now authorized to provide such notices and decisions to contractors electronically via e-mail and/or secure file exchange service. Additionally, the class deviation adds language to FAR 9.406-3(b)(1) and 9.407-3(b)(1) that allows for more flexibility in the suspension and debarment decision-making process by permitting contractors to make presentation of matters in opposition (PMIOs) via telephone or internet.
These flexible delivery methods are cited to and are permitted for notifying contractors of SDO decisions, pursuant to FAR 9.406-3(e); for notifying and advising contractors of suspension, pursuant to FAR 9.407-3(c); and for the delivery of written notices of SDO decisions, pursuant to FAR 9.07-3(d)(4).
Notwithstanding the foregoing, DoD SDOs are still required to follow procedural requirements as outlined in DFARS Appendixes H-101, H-103, and H-104 concerning the availability of the record that formed the basis for the decision and the inclusion of instructions for a contractor to present matters in opposition to or evidence relevant to the facts.
The DoD's action follows the GSA's, which occurred about a month prior, on March 24, through Class Deviation CD-2020-04, wherein GSA allowed for similar flexibilities for its debarment office and SDO regarding the form and manner of notices and PMIOs. Specifically, this deviation impacted General Services Acquisition Regulation (GSAR) 509.406-3(d)(ii) and 509.406-3(d)(iii).
While not surprising given the current state of the country as it copes with COVID-19, these changes create additional challenges for organizations aiming to avert administrative action. For example, what is perhaps a most obvious question: How does the SDO get in touch with an organization that it does not have a prior relationship with, and therefore no email address for? While government contractors are required to include email addresses in their registration in the System for Award Management (SAM), those email addresses are largely related to payment points of contact. In that regard, SAM-listed points of contact may not be appropriate points of contact for such notice, and/or there could be significant delays in the relaying of any such notice to the appropriate individuals within the organization.
With respect to PMIOs, there is no question that face-to-face meetings between an SDO and respondent can be extremely valuable. Although their elimination is necessary for now, such a change could harm respondents, as they will have a more challenging time conveying their sincerity regarding issues of concern via telephone and/or often choppy videoconferences. Nevertheless, respondents should still do their very best to engage in such discussions, as there truly is no substitute for a live discussion between the respondent and SDO.
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These changes are just the latest as the government and private industry grapple with the impacts of the COVID-19 pandemic, but likely not the last. Venable will continue to keep our clients apprised. Until then, stay safe and healthy.
*A special thank you to Anna Kaye for her contribution to this article.