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  • Print publication year: 2021
  • Online publication date: May 2021

21 - US Debarment: An Introduction

from Part II - Deterrence and Incapacitation

Summary

Abstract: This chapter, cowritten by senior members of the bar who teach in the leading public procurement law program in the United States, discusses corruption, compliance, and debarment in government procurement. When a government procures goods or services, it must decide questions of price and quality, and – equally importantly – whether the contractor is qualified (“responsible” in US federal contracting), that is, whether the contractor possesses the requisite physical and financial capability, a record of satisfactory performance, and integrity. For the government buyer, the question is whether the prospective contractor poses disqualifying performance or reputational risks to the government. When those risks are severe, suspension (temporary exclusion) and debarment (exclusion for a term of years) are tools that a government can use to exclude nonqualified individuals and companies from competing for public contracts. Suspension and debarment can be economically devastating – a “death sentence” for contractors. As this chapter reflects, remedial corporate compliance efforts – “self-cleaning,” as it is termed in European procurement law – play a central role in a government’s decision on whether to debar or suspend a contractor. For US federal contractors, the basic requirements for compliance efforts match the emerging worldwide standards for compliance systems. This chapter focuses on suspensions and debarments under the US federal system, while drawing on illustrative comparative examples from other procurement systems.