# Presentation: 438959

## Debarments and Suspensions
Based on Research Impropriety in VA Research

- Based on Research Impropriety in VA Research

- 

**VHA Handbook 1058.04**

## Background

- Research Misconduct Handbook 1058.2
- 	¶ 18b.  _Examples of Possible Corrective Actions._
- 		(1) Governmentwide debarment

## Background

- Research Misconduct Case
- Paul Kornak (VA Stratton Medical Center, Albany)
- Pled guilty to criminally negligent homicide in connection with falsification of research (Jan. 18, 2005)
- ORO sought to initiate debarment proceedings
- OGC opined that VA did not have adequate procedures
- At ORO’s urging, HHS debarred Kornak for life (joint jurisdiction)
- In other misconduct cases, VA has sole jurisdiction 		(= need to have its own debarment procedures)

## Background

- OGC Opinion VAOPGCADC 6-2005 (June 2005)
- VA’s *nonprocurement* debarment **REGULATION** “includes no detail on how these matters will proceed through VHA.”

- In drafting new nonprocurement debarment **PROCEDURES**, “consider the procedures currently in effect within VA for debarment and suspension in contracting (procurement) matters.”
- At a minimum, the USH should appoint a designee to “conduct any necessary fact-finding and ... provide written findings and recommendations to the debarring official.”

## Procurement

_**Procurement**_
- Contracts

_**Nonprocurement**_
- Grants
- Cooperative Agreements
- Scholarships
- Fellowships
- Contracts of assistance
- Loans
- Loan guarantees
- Subsidies
- Insurances
- Payments for specified uses
- Donation agreements

## Background

- Responsibility for Drafting Procedures
- USH Memorandum (Aug. 15, 2005)
- Assigned responsibility for developing nonprocurement debarment procedures to Acquisition Resource Services (ARS) which handles *procurement* debarments
- ARS declined assignment (Jan. 24, 2006)
- PDUSH subsequently instructed ORO to promulgate a nonprocurement debarment and suspension policy *limited to ORO activities*
- ORO completed first draft on June 12, 2006
- VHA Handbook 1058.04 in final concurrence process

## WHAT is Debarment?

- Governmentwide exclusion

- from covered federal transactions

- for a set period

- based on specific cause(s)

## WHAT is Debarment?

- Governmentwide exclusion

## WHAT is Debarment?

**Does *****NOT***** include **
**Federal employment**

- covered federal transactions

- But *does* include
- conducting VA research
- and
- applying for or receiving approval
- to conduct VA research

## WHAT is Debarment?

- for a set period

- Generally, should not exceed 3 years
- BUT
- if circumstances warrant,
- a longer period of debarment may be imposed

## WHAT is Debarment?

**Causes of Debarment**
- Conviction of or civil judgment for certain acts
- 	e.g., fraud in a public or private agreement/transaction, violation of antitrust statutes, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, receiving stolen property, making false claims, obstruction of justice, etc.
- Violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program
- Any other cause of so serious or compelling a nature that it affects your present responsibility

## WHAT is Debarment?

_**Under VHA Handbook 1058.04**_
*The cause for debarment must also be based on research impropriety in VA research:*
**Noncompliance with requirements related to:**
- Research Misconduct
- Human Subject Protections
- Laboratory Animal Welfare
- Research Safety
- Research Laboratory Security
- Research Information Security

## What is Suspension?

- from covered federal transactions

- for a set period

- based on specific cause(s)

**What ****is** **Suspension?**

**An *****immediate***** and *****temporary***

## Suspension

_**Suspension**_

_**Debarment**_

*Temporary* status pending completion of an investigation or legal proceeding

*Final* determination

- Imposed *first*, followed by prompt opportunity to contest suspension

- Imposed *after* opportunity to contest proposed debarment

- Must have *adequate evidence* of cause for debarment, and conclude that *immediate action* is necessary

- Must prove conduct warrants debarment by a *preponderance of the evidence*

## Suspension/Debarment

- or

- Debarment

- Debarment

- or

- Suspension

**Suspension/Debarment**

## Recommending Suspension/ Debarment

**Documentary Evidence Required:**

_**Suspension**_

_**Debarment**_

**Causes of Debarment**
- Conviction of or civil judgment for certain acts
- 	e.g., fraud in a public or private agreement/transaction, violation of antitrust statutes, embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, receiving stolen property, making false claims, obstruction of justice, etc.
- Violation of the terms of a public agreement or transaction so serious as to affect the integrity of an agency program
- Any other cause of so serious or compelling a nature that it affects your present responsibility

_**Under VHA Handbook 1058.04**_
*The cause for debarment must also be based on research impropriety in VA research*

- An indictment for or other adequate evidence to suspect

- Adequate evidence to suspect

- Immediate action is necessary to protect the public interest

*or*

*or*

## Recommending Suspension/ Debarment

- Any VA employee
- VA investigative body or review committee
- ORO

**WHO may recommend:**

## Recommending Suspension/ Debarment

- VA investigative body or review committee

_**Suspension**_

_**Debarment**_

- Recommendation

- Recommendation

**Recommending** **Suspension/ Debarment**

**STEPS for recommendation:**

- Facility Director

- Facility Director

*if documentary evidence*

- ORO

*if procedurally sufficient*

- VISN Director

*Recommend or not*

- ORO

- USH

*if documentary evidence*

- ORO

- USH

*cc:*

- VISN Director

## Recommending Suspension/ Debarment

- VA investigative body or review committee

_**Suspension**_

_**Debarment**_

- Recommendation to debar a
*Facility Director*

**Recommending** **Suspension/ Debarment**

**STEPS for recommendation:**

- ORO

*if procedurally sufficient*

- VISN Director

*Recommend or not*

- ORO

- USH

## Recommending Suspension/ Debarment

- VA investigative body or review committee

_**Suspension**_

_**Debarment**_

- Recommendation to debar a
*VISN Director*

**Recommending** **Suspension/ Debarment**

**STEPS for recommendation:**

- ORO

*if procedurally sufficient*

- USH

- Recommendation to suspend a
*Facility or VISN Director*

- ORO

*if procedurally sufficient*

- USH

## Resolution 

_**Suspension**_

_**Debarment**_

- USH

- Decision to Suspend

- Notice to Respondent

*Effective immediately*

- Failure to Respond

*30 days*

- Contest Orally or in Writing

- USH Decision to *Continue*, *Modify*, or *Terminate*

- Additional Fact-Finding

- Decision to *Propose* Debarment

- Notice to Respondent

*30 days*

- Failure to Respond

- USH Decision re: Debarment

- Contest Orally or in Writing

- Additional Fact-Finding

*Debarment becomes effective*

## Resolution 

- Only if there is a genuine dispute over facts material to the suspension/debarment, and none of the conditions listed at 2 CFR §180.735(a) / §180.830(a) exist.
- USH appoints a designee to conduct the fact-finding.
- Informal meeting(s) between the USH designee, Respondent, Respondent’s representative (optional), ORO representative, and OGC.
- Respondent may submit documentary evidence, present witnesses, and confront any witness ORO presents.

**Additional Fact-Finding**** **

## Resolution 

- Transcribed record available at cost to Respondent upon request; may be waived by mutual agreement.
- Respondent may forgo in-person meeting and, instead, submit documents to USH designee for review.
- USH or designee may authorize other methods of fact-finding deemed appropriate.
- Designee provides written findings of fact to USH for consideration and action (cc: to ORO).

**Additional Fact-Finding**** **

## Resolution 

_**Suspension**_

_**Debarment**_

- USH Decision to *Continue*, *Modify*, or *Terminate*

- USH Decision re: Debarment

- ORO

- Written Decision

- Respondent

**Notice**** **