Saturday, February 27, 2021
Corporate Compliance Insights
  • Home
  • About
    • About CCI
    • Writing for CCI
    • NEW: CCI Press – Book Publishing
    • Advertise With Us
  • Articles
    • See All Articles
    • NEW: COVID-Related
    • Compliance
    • Ethics
    • Risk
    • FCPA
    • Governance
    • Fraud
    • Internal Audit
    • HR Compliance
    • Cybersecurity
    • Data Privacy
    • Financial Services
    • Leadership and Career
  • Vendor News
  • Jobs
    • Compliance & Risk
    • Information Security
  • Events
    • Webinars & Events
    • Submit an Event
  • Downloads
    • eBooks
    • Whitepapers
  • Podcasts
  • Videos
  • Subscribe
No Result
View All Result
  • Home
  • About
    • About CCI
    • Writing for CCI
    • NEW: CCI Press – Book Publishing
    • Advertise With Us
  • Articles
    • See All Articles
    • NEW: COVID-Related
    • Compliance
    • Ethics
    • Risk
    • FCPA
    • Governance
    • Fraud
    • Internal Audit
    • HR Compliance
    • Cybersecurity
    • Data Privacy
    • Financial Services
    • Leadership and Career
  • Vendor News
  • Jobs
    • Compliance & Risk
    • Information Security
  • Events
    • Webinars & Events
    • Submit an Event
  • Downloads
    • eBooks
    • Whitepapers
  • Podcasts
  • Videos
  • Subscribe
No Result
View All Result
Corporate Compliance Insights
Home Featured

Present Responsibility and Its Determinations

Suspension and Debarment in Monitoring, Part 4

by Jay Rosen
July 31, 2019
in Featured
illustration of one person handing responsibility to another

Every compliance professional should be familiar with the concept of present responsibility. Jay Rosen discusses the term and its place in suspensions and debarments.

Present responsibility has become sort of a buzzword. It’s the underlying basis for action involving excluding a party from the federal marketplace through suspension or department.

Unfortunately, the phrase itself is not defined anywhere in the regulatory structure. This means its determination comes down to the discretion of the federal officials who have been empowered to exercise the suspension and debarment authority.

Yet even with this lack of a statutory or regulator definition, there are some common factors and guidelines out there that can help the compliance community understand some of the elements of suspension and debarment as they relate to this issue.

When an action is initiated, it is generally based on facts that trigger one of the causes that are set forth in the regulations, notwithstanding the fact that the evidence establishes the cause and which in most cases there’s generally no dispute that the cause has been proven by the appropriate burden of evidence.

As with most processes, there is a shifting burden of proof. First, the evidentiary burden falls to the government. Once that burden is satisfied by the appropriate level of evidence, then the burden shifts to the contractor to establish it as personally responsible. At this point, a contractor, facing suspension or debarment, could look to Federal Acquisition Regulation (FAR) 9.406-1 for guidance.

The FAR notes the following:

It is the debarring official’s responsibility to determine whether debarment is in the government’s interest. The debarring official may, in the public interest, debar a contractor for any of the causes in 9.406-2, using the procedures in 9.406-3. The existence of a cause for debarment, however, does not necessarily require that the contractor be debarred; the seriousness of the contractor’s acts or omissions and any remedial measures or mitigating factors should be considered in making any debarment decision.

Before arriving at any debarment decision, the debarring official should consider factors such as the following:

  1. Whether the contractor had effective standards of conduct and internal control systems in place at the time of the activity [that] constitutes cause for debarment or had adopted such procedures prior to any government investigation of the activity cited as a cause for debarment.
  2. Whether the contractor brought the activity cited as a cause for debarment to the attention of the appropriate government agency in a timely manner.
  3. Whether the contractor has fully investigated the circumstances surrounding the cause for debarment and, if so, made the result of the investigation available to the debarring official.
  4. Whether the contractor cooperated fully with government agencies during the investigation and any court or administrative action.
  5. Whether the contractor has paid or has agreed to pay all criminal, civil and administrative liability for the improper activity, including any investigative or administrative costs incurred by the government, and has made or agreed to make full restitution.
  6. Whether the contractor has taken appropriate disciplinary action against the individuals responsible for the activity [that] constitutes cause for debarment.
  7. Whether the contractor has implemented or agreed to implement remedial measures, including any identified by the government.
  8. Whether the contractor has instituted or agreed to institute new or revised review and control procedures and ethics training programs.
  9. Whether the contractor has had adequate time to eliminate the circumstances within the contractor’s organization that led to the cause for debarment.
  10. Whether the contractor’s management recognizes and understands the seriousness of the misconduct giving rise to the cause for debarment and has implemented programs to prevent recurrence.

First, it all starts at the top, with effective standards of conduct and internal controls at the time the misconduct occurred.

Secondly, did the contractor disclose this conduct to the government? Thirdly, has a contractor investigated the matters and made those results available to the government? Has the contractor cooperated with the government in terms of trying to work through the various challenges and the various remedies associated within this conduct?

Finally, has the contractor taken appropriate corrective action taken? Such corrective actions include disciplinary action and assessment of internal controls, policies and procedures that were designed to either prevent or identify misconduct, actions taken to strengthen the process and willingly embracing the problem and pursuing an appropriate resolution.


In case you missed the earlier installments of this ongoing series, please see the links below.

Everything You Always Wanted to Know About Monitors But Were Afraid to Ask

Part 1, Part 2, Part 3, Part 4 and Part 5

Potential Issues in Corporate Monitorships

Part 1, Part 2, Part 3, Part 4 and Part 5

Suspension and Debarment in Monitoring

Part 1, Part 2 and Part 3


Tags: monitoring
Previous Post

Sustainability Performance: A Differentiation Opportunity?

Next Post

Chorus.ai Announces Only Native Zoom Integration Delivering Most-Secure Recording Compliance for Enterprise

Jay Rosen

Jay Rosen is Vice President, Business Development and Monitoring Specialist at Affiliated Monitors, Inc., the first company in the U.S. to focus on providing independent integrity monitoring and assessment services across a wide range of regulated industries and professions. Jay previously headed up Merrill Brink’s FCPA Investigations and Ethics and Compliance translation group. He has over eight years of experience assisting clients on cross-border investigations, as well as helping them localize their code of conduct and other mission-critical English documents for their global colleagues. For almost three years, Jay has co-hosted the #1 weekly FCPA podcast, “This Week in FCPA,” with Tom Fox. Tom and Jay recently launched a second podcast, “Popcorn and Compliance,” and Jay is also a commentator on the biweekly podcast, “Everything Compliance,” with Jonathan Armstrong, Tom Fox, Sarah Hadden, Matt Kelly and Mike Volkov.

Related Posts

woman looking at horizon from mountain top

What’s on the Horizon for Anti-Corruption Enforcement?

February 25, 2021
cannabis leaf on $100 bill

The Intersection of EDD and Banking Cannabis

February 24, 2021
gold cup award on red background with stars

Ethisphere Announces the 2021 World’s Most Ethical Companies

February 23, 2021
illustration of hand holding flashlight illuminating hidden stairs

The Corporate Transparency Act: Pulling Back the Veil

February 23, 2021
Next Post
illustration of two businessmen meeting virtually

Chorus.ai Announces Only Native Zoom Integration Delivering Most-Secure Recording Compliance for Enterprise

Access realtime data
Addressing systemic racism in the workplace SAI Global
Dynamic Risk Assessments with Workiva
Top 10 Risk and Compliance Trends

Special Coverage

Special COVID page graphic

Jump to a Topic:

anti-corruption anti-money laundering/AML Artificial Intelligence/A.I. automation banks board of directors board risk oversight bribery CCPA/California Consumer Privacy Act Cloud Compliance communications management Coronavirus/COVID-19 corporate culture crisis management cyber crime cyber risk data analytics data breach data governance decision-making diversity DOJ due diligence fcpa enforcement actions financial crime GDPR GRC HIPAA information security KYC/know your customer machine learning monitoring ransomware regtech reputation risk risk assessment Sanctions SEC social media risk supply chain technology third party risk management tone at the top training whistleblowing
No Result
View All Result

Privacy Policy

Follow Us

  • Facebook
  • Twitter
  • LinkedIn
  • RSS Feed

Category

  • CCI Press
  • Compliance
  • Compliance Podcasts
  • Cybersecurity
  • Data Privacy
  • eBooks
  • Ethics
  • FCPA
  • Featured
  • Financial Services
  • Fraud
  • Governance
  • GRC Vendor News
  • HR Compliance
  • Internal Audit
  • Leadership and Career
  • Opinion
  • Resource Library
  • Risk
  • Uncategorized
  • Videos
  • Webinars
  • Whitepapers

© 2019 Corporate Compliance Insights

No Result
View All Result
  • Home
  • About
  • Articles
  • Vendor News
  • Podcasts
  • Videos
  • Whitepapers
  • eBooks
  • Events
  • Jobs
  • Subscribe

© 2019 Corporate Compliance Insights