Is It Time To Define 'Present Responsibility'?

• Published date: 04 November 2022
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Law Firm: Jenner & Block
• Author: David B. Robbins

Suspension and debarment are among the tools used by the Federal Government to address improprieties by Government contractors and grant recipients. However, regulations governing when and how suspension and debarment may be used are imprecise. This imprecision may eventually threaten the viability of the system. Accordingly, it may be time to define the term "present responsibility."

"Present responsibility" is immensely important, and the lack of it can cause debarment under both the Federal Acquisition Regulation and the Nonprocurement Common Rule. See FAR 9.406- 1(a), 9.406-2(c); 2 CFR ' 180.800(a)(4); 2 CFR ' 180.800(d); 2 CFR ' 180.860. A contractor can be debarred for, among other things, conviction or civil judgment for committing a crime or other offense indicating a lack of business integrity or business honesty "that seriously and directly affects the present responsibility" of a Government contractor or subcontractor. FAR 9.406-2(a)(5); see also 2 CFR ' 180.800(a)(4). Debarment is also possible "based on any other cause of so serious or compelling a nature that it affects the present responsibility of a contractor or subcontractor." FAR 9.406-2(c); see also 2 CFR ' 180.800(d), (together, the "Catch-All Provision"). Yet "present responsibility" is not defined.

The Interagency Suspension and Debarment Committee Report to Congress for Fiscal Year 2020 (ISDC Report) (the most recent report issued by the ISDC), also uses the term "present responsibility" without defining it. For example, the ISDC notes that debarments are "not exercises in punitive action ... [and] if sufficient corrective actions are taken, then present responsibility may be demonstrated" and debarment avoided. ISDC Report at 2, available at ISDC_FY_2020_Section_873_ Report_(use_for_web_upload).pdf (acquisition. gov). The ISDC Report also uses the term relating to proactive outreach by individuals and entities to "provide information relating to their present responsibility," id. at 7, and when noting that "provid[ing] information on ... present responsibility and corrective actions" may result in a debarring official electing not to debar a contractor. Id. at 14.

The challenge for contractors and individuals facing debarment is to divine what "present responsibility" means, and how that undefined standard may be judged. It is a daunting task, and the ISDC Report brings the problem into sharp focus by noting that each individual agency Suspending and Debarring Official will make decisions relating to the "risk(s) posed by a business entity or individual" specific to that agency. ISDC Report at 1. These "factors ... can vary significantly between agencies and impact the assessment of risk(s)." Id. at 2. This means that the undefined term "present responsibility" means...