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  • Question

    Does the contractor have to state they are under a current DOJ investigation under their Reps and Certs in the SAM database? And, further can the contracting office use that information in determining the contractor to be not responsible? If the contractor is required, and does not comply, can the contracting office use that information to determine the contractor to be not responsible? Finally, if it is not required, can the contracting office use their knowledge of the pending investigations to determine the contractor to be not responsible?


    Answer

    This response is based on the information provided.  We suggest you discuss with your contract administrator and/or legal department as appropriate. 
     
    We still operate on the premise of "Innocent until proven guilty."  It would be unfair to the acquisition process to assume guilt until and unless proven.
     
    "FAR 52.209-7 – Information Regarding Responsibility Matters (Jul 2013) ....
    (c) If the offeror checked “has” in paragraph (b) of this provision, the offeror represents, by submission of this offer, that the information it has entered in the Federal Awardee Performance and Integrity Information System (FAPIIS) is current, accurate, and complete as of the date of submission of this offer with regard to the following information:
      (1) Whether the offeror, and/or any of its principals, has or has not, within the last five years, in connection with the award to or performance by the offeror of a Federal contract or grant, been the subject of a proceeding, at the Federal or State level that resulted in any of the following dispositions:
      (i) In a criminal proceeding, a conviction.
      (ii) In a civil proceeding, a finding of fault and liability that results in the payment of a monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more.
      (iii) In an administrative proceeding, a finding of fault and liability that results in—
      (A) The payment of a monetary fine or penalty of $5,000 or more; or
      (B) The payment of a reimbursement, restitution, or damages in excess of $100,000.
      (iv) In a criminal, civil, or administrative proceeding, a disposition of the matter by consent or compromise with an acknowledgment of fault by the Contractor if the proceeding could have led to any of the outcomes specified in paragraphs (c)(1)(i), (c)(1)(ii), or (c)(1)(iii) of this provision."
     
    And 
     
    "DFARS 252.209-7998 Representation Regarding Conviction of a Felony Criminal Violation under any Federal or State Law.
    See Class Deviation 2012-O0007, Prohibition Against Contracting with Corporations that Have a Felony Conviction, dated March 9, 2012. Contracting officers shall include the provision at 252.209-7998 in all solicitations that will use funds made available by Division H of the Consolidated Appropriations Act, 2012, including solicitations for acquisition of commercial items under FAR part 12, and shall apply the restrictions included in the deviation. This deviation is effective beginning March 9, 2012, and remains in effect until incorporated in the FAR or DFARS or otherwise rescinded."
     
    "DFARS 252.209-7999 Representation by Corporations Regarding an Unpaid Delinquent Tax Liability or a Felony Conviction under any Federal Law.
     
    See Class Deviation 2012-O0004, Prohibition Against Contracting With Corporations That Have an Unpaid Delinquent Tax Liability or a Felony Conviction under Federal Law, dated January 23, 2012. Contracting officers shall include this provision in all solicitations that will use funds made available by Division A of the Consolidated Appropriations Act, 2012, including solicitations for acquisition of commercial items under FAR part 12, and shall apply the restrictions included in the deviation. This deviation is effective beginning January 23, 2012, and remains in effect until incorporated in the FAR or DFARS or otherwise rescinded.
    (Revised December 28, 2017)"
     
    If the contracting officer and program team, including legal advisor(s) believe there is merit in the allegations, the contracting officer should pursue suspension.
     
    "FAR 9.407 -- Suspension.
    FAR 9.407-1 -- General.
    (a) The suspending official may, in the public interest, suspend a contractor for any of the causes in 9.407-2, using the procedures in 9.407-3.
    (b)  (1) Suspension is a serious action to be imposed on the basis of adequate evidence, pending the completion of investigation or legal proceedings, when it has been determined that immediate action is necessary to protect the Government’s interest. In assessing the adequacy of the evidence, agencies should consider how much information is available, how credible it is given the circumstances, whether or not important allegations are corroborated, and what inferences can reasonably be drawn as a result. This assessment should include an examination of basic documents such as contracts, inspection reports, and correspondence.
    ....
    FAR 9.407-2 -- Causes for Suspension.
    (a) The suspending official may suspend a contractor suspected, upon adequate evidence, of --
      (1) Commission of fraud or a criminal offense in connection with --
      (i) Obtaining;
      (ii) Attempting to obtain; or
      (iii) Performing a public contract or subcontract;
      (2) Violation of Federal or State antitrust statutes relating to the submission of offers;
      (3) Commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, violating Federal criminal tax laws, or receiving stolen property;
      (4) Violations of 41 U.S.C chapter 81, the Drug-Free Workplace, as indicated by—
      (i) Failure to comply with the requirements of the clause at 52.223-6, Drug-Free Workplace; or
      (ii) Such a number of contractor employees convicted of violations of criminal drug statutes occurring in the workplace as to indicate that the contractor has failed to make a good faith effort to provide a drug-free workplace (see 23.504);
      (5) Intentionally affixing a label bearing a “Made in America” inscription (or any inscription having the same meaning) to a product sold in or shipped to the United States or its outlying areas, when the product was not made in the United States (see section 202 of the Defense Production Act (Pub. L. 102-558));
      (6) Commission of an unfair trade practice as defined in 9.403 (see section 201 of the Defense Production Act (Pub. L. 102-558));
      (7) Delinquent Federal taxes in an amount that exceeds $3,500. See the criteria at 9.406-2(b)(1)(v) for determination of when taxes are delinquent; or
      (8) Knowing failure by a principal, until 3 years after final payment on any Government contract awarded to the contractor, to timely disclose to the Government, in connection with the award, performance, or closeout of the contract or a subcontract thereunder, credible evidence of—
      (i) Violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in Title 18 of the United States Code;
      (ii) Violation of the civil False Claims Act (31 U.S.C. 3729-3733); or
      (iii) Significant overpayment(s) on the contract, other than overpayments resulting from contract financing payments as defined in 32.001; or
      (9) Commission of any 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.
    (b) Indictment for any of the causes in paragraph (a) above constitutes adequate evidence for suspension.
    (c) The suspending official may upon adequate evidence also suspend a contractor for any other cause of so serious or compelling a nature that it affects the present responsibility of a Government contractor or subcontractor." 
     
    FAR 9.407-3 outlines Procedures.
     
    If your team believes the information to be credible the proper avenue to pursue is suspension with potential debarment.
     

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