Research Reports

Assessing Contractor Labor Law Violations Responsibility and Debarment

PUBLIC RELEASE
May 2024

COMPLETED
April 2024

AUTHORS: Mr. David Drabkin, Esq.1 , Mr. Christopher Yukins, Esq.2
STEVENS INSTITUTE OF TECHNOLOGY 1, THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 2

Following their research report, Congressionally Mandated Study on Contractor Debarments for Violations of U.S. Labor Laws, AIRC Fellows David Drabkin and Christopher Yukins shared their insights in a pair of webinars organized by AIRC and Defense Acquisition University. This report summarizes the webinar discussions. Key points include:

• The risk-management nature of suspension and debarment, which in the U.S. federal system are not intended to serve as punishment. Suspension is the temporary exclusion of a contractor, typically pending consideration for debarment, which is generally an exclusion from federal contracting for a term of years. Suspension and debarment are addressed under the Federal Acquisition Regulation (FAR) Subpart 9.4, which is part of Contractor Qualifications, FAR Part 9. Suspension and debarment are part of the supplier risk assessment that is an inherent function of contractor qualification under the FAR. Contracting officials, including both contracting officers and the suspending and debarring officials (SDOs), need to assess vendors for (among other things) performance and reputational risks, per FAR Part 9.

• The importance of accessibility and understandability of data, so that contracting officials and other stakeholders can make a meaningful assessment of the risks that might be posed if prospective contractors have engaged in labor violations.

• The impact of suspension and debarment on the industrial base and mission.

• The use of existing databases for contracting officer assessments of vendors, and how they might require follow-ups with the Department of Labor (DOL) for additional information.

• The impact of statutory debarments on the defense industrial base across the government – and the potentially unforeseen impacts on the supplier base if statutory impacts require automatic debarment for statutory violations.

• A primary focus for debarment or suspension (and of a responsibility determination) for the DoD is whether the contractor is going to be able to deliver the product that DoD wanted, at a quality DoD expected, and in time for the warfighters to employ it in the defense of the nation.

• Ultimately Congress will need to decide whether debarments should be mandatory, but that decision should be informed based on these discussions of debarment’s nature and purpose and the potential impact of statutory debarment on the defense industrial base.