Department of Homeland Security 

Office of Inspector General 

DHS' Use of Suspension and Debarment 


Actions for Poorly Performing Contractors
 

OIG-10-50 February 2010 
 

Office of Inspector General 

U.S. Department of Homeland Security

Washington, DC 25028 

 February 2, 2010 

Preface 

The Department of Homeland Security (DHS) Office of Inspector General (OIG) was 

established by the Homeland Security Act of 2002 (Public Law 107-296) by amendment 

to the Inspector General Act of 1978. This is one of a series of audit, inspection, and 

special reports prepared as part of our oversight responsibilities to promote economy, 

efficiency, and effectiveness within the department. 

This report identifies areas where improvements can be made in the department’s process 

for evaluating poorly performing contractors for potential suspension and debarment 

actions. It is based on interviews with employees and officials of relevant agencies and 

institutions, direct observations, and a review of applicable documents. 

The recommendations herein have been developed to the best knowledge available to our 

office, and have been discussed in draft with those responsible for implementation. We 

trust this report will result in more effective, efficient, and economical operations. We 

express our appreciation to all of those who contributed to the preparation of this report. 

Richard L. Skinner 


Inspector General 

Table of Contents/Abbreviations 

Executive Summary.............................................................................................................1
 

Background..........................................................................................................................2
 

Results of Audit ...................................................................................................................5
 

Suspension and Debarment Policies, Procedures, and Practices ...................................5 


Recording Contractor Performance Information ...........................................................6 


Recommendations................................................................................................................7
 

Management Comments and OIG Analysis ........................................................................7 


Appendices 

Appendix A: Purpose, Scope, and Methodology.......................................................10 


Appendix B: Management Comments to the Draft Report.......................................12 


Appendix C: Suspension and Debarment Practices ..................................................20 


Appendix D: Major Contributors to this Report........................................................23 


Appendix E: Report Distribution ..............................................................................24 


Abbreviations 

DHS Department of Homeland Security 


FAR Federal Acquisition Regulations 


C.F.R. Code of Federal Regulations 
OIG
 

Department of Homeland Security 

Office of Inspector General 

Executive Summary 

We reviewed the Department of Homeland Security’s procedures 

and practices to suspend and debar poorly performing contractors. 

The objective of our review was to determine whether the 

department has suspension and debarment policies and procedures 

in place and is appropriately applying the policies and procedures 

to protect the government’s interest. 

The Department of Homeland Security has suspension and 

debarment policies and procedures in place. However, the 

department is reluctant to apply the policies and procedures against 

poorly-performing contractors. Department procurement officials 

characterized the suspension and debarment process as being too 

resource intensive, punitive, and as negatively impacting the size 

of the contractor pool. The procurement officials prefer to use 

other administrative remedies to address poor contractor 

performance. We identified 23 instances where contracts were 

terminated for default or cause but were not reviewed to determine 

whether a suspension and debarment referral was warranted. 

Reluctance to pursue suspension and debarment could put the 

department and the government at risk of continuing to conduct 

business with poorly performing contractors and may result in 

decreased productivity and increased cost. 

The department is also not recording pertinent contract 

performance data for poorly performing contractors. We identified 

21 instances where contracts were terminated for default, the 

reasons for which were not recorded in government-wide 

databases. As a result, there is an increased risk the government 

could unknowingly contract with entities that have a history of 

unsatisfactory performance. 

The report contains two recommendations to improve the 

effectiveness of the department’s suspension and debarment 

program. The Under Secretary for Management concurred with 

the recommendations and outlined plans and actions to improve 

suspension and debarment policies and procedures. 

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Background 

The Department of Homeland Security spends an estimated 40% 

of its annual congressional appropriation through contracts and 

grants. The department’s FY 2009 appropriation was $43 billion, 

of which an estimated $17 billion is expected to be spent through 

federal contracts and grants. 

Federal Acquisition Regulations Regarding Suspension and 

Debarment 

Federal Acquisition Regulations (FAR) require agencies to solicit 

offers from, award contracts to, and consent to subcontracts only 

with responsible contractors. Suspensions and debarments are 

discretionary actions that agencies implement to protect the federal 

government by excluding contractors who commit fraud, behave 

unethically, or willfully fail to perform or have a history of failure 

to perform according to the terms of a contract from conducting 

business with the federal government.1 

Suspensions are temporary in nature and are used to protect the 

federal government until investigations and any ensuing legal 

proceedings that could lead to debarment actions are completed. 

In no event may a suspension extend beyond 18 months, unless 

legal proceedings have been initiated within that period. Causes 

for suspension actions include, among others, adequate evidence of 

the following: 

�	 Commission of fraud or a criminal offense in connection with 

obtaining, attempting to obtain, or performing a public contract 

or state contract; 

�	 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; 

� 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; or 

1 48 C.F.R. § 9.402(b), "The serious nature of debarment and suspension requires that these sanctions be 

imposed only in the public interest for the Government's protection and not for the purposes of 

punishment." 

DHS’ Use of Suspension and Debarment Actions for Poorly Performing Contractors 

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�	 Any other cause of so serious or compelling a nature that it 

affects the present responsibility of a government contractor or 

subcontractor. 

Debarments, on the other hand, generally do not exceed 3 years but 

can be extended if it is determined that it is in the government’s 

best interest. Causes for debarment actions include, among others, 

the following: 

�	 Conviction of or civil judgment for fraud, violation of antitrust 

laws, embezzlement, theft, forgery, bribery, false statements, or 

other offenses indicating a lack of business integrity; 

�	 Violation of the terms of a government contract or subcontract 

so serious as to justify debarment, such as a willful failure to 

perform in accordance with the terms of one or more contracts 

or a history of failure to perform, or of unsatisfactory 

performance of, one or more contracts; 

�	 Noncompliance with Immigration and Nationality Act 

employment provisions;2

 or 

�	 Any other cause of so serious or compelling a nature that it 

affects the present responsibility of the contractor or 

subcontractor. 

The FAR requires agencies to list all suspended or debarred 

contractors in the General Services Administration’s Excluded 

Parties List System. 

DHS Suspensions and Debarments 

The DHS Office of the Chief Procurement Officer has agencywide responsibility for the suspension and debarment of 

contractors. Until recently, the department designated its 

components’ Heads of Contracting Activity as the suspension and 

debarment officials for all component-related contracts under the 

Homeland Security Acquisition Manual. The Homeland Security 

Acquisition Manual was amended in October 2009 to give the 

DHS Chief Procurement Officer sole authority to waive suspension 

and debarment actions and award contracts to entities that are 

currently suspended or debarred 

From FY 2004 through FY 2008, the department initiated 10 

debarment cases as well as one suspension case pending the results 

2

 See Executive Order 12989, as amended by Executive Order 13286. 

DHS’ Use of Suspension and Debarment Actions for Poorly Performing Contractors 

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of a supporting criminal investigation. The 10 debarment cases 

resulted in 23 debarment actions against the individuals, corporate 

entities, and their affiliates. Nine of the 10 debarment cases were 

initiated because of violations of the Immigration and Nationality 

Act and a fraud conviction. The tenth debarment case was initiated 

by the Coast Guard at the behest of the Defense Contract 

Management Agency for business integrity and contract 

performance-related reasons identified during a Defense Criminal 

Investigation Service investigation. 

Recording Contractor Past Performance 

The FAR requires agencies to prepare an evaluation of contractor 

performance for each contract that exceeds the simplified 

acquisition threshold ($100,000 in most cases) when contract work 

is complete.3

 Additionally, the FAR recommends that contractor 

performance information be documented on an annual basis when 

the contract period is for more than 1 year. Until recently, the 

Homeland Security Acquisition Manual required that DHS record 

all contractor performance evaluations in the Contractor 

Performance System. Effective September 1, 2009, the Contractor 

Performance Assessment Reporting System replaced the 

Contractor Performance System as the central repository for DHS 

contractor performance evaluations. The Contractor Performance 

System and the Contractor Performance Assessment Reporting 

System feed information regarding contractor performance into the 

Past Performance Information Retrieval System, a governmentwide database mandated by the Office of Management and Budget. 

The Past Performance Information Retrieval System is a source of 

contractor performance information utilized by other government 

agencies when assessing a contractor's ability to perform a contract 

successfully. Department Heads of Contracting Activity are the 

agency officials responsible for ensuring that contractor 

performance evaluations are prepared and entered into the 

appropriate databases in accordance with agency regulations. 

3

 See 48 C.F.R. § 42.1502 (b)(requirement to evaluate); 48 C.F.R. § 2.101 (“simplified acquisition 

threshold” defined). 

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Results of Audit 

Suspension and Debarment Policies, Procedures, and Practices 

The Department of Homeland Security has suspension and 

debarment policies and procedures in place. However, the 

department is reluctant to apply the policies and procedures against 

poorly-performing contractors. Department procurement officials 

characterized the suspension and debarment process as being too 

resource intensive, punitive, and as negatively impacting the size 

of the contractor pool. The procurement officials prefer to use 

other administrative remedies to address poor contractor 

performance. We identified 23 instances where contracts were 

terminated for default or cause but were not reviewed to determine 

if a suspension and debarment referral was warranted. Reluctance 

to pursue suspension and debarment could put the department and 

the government at risk of continuing to conduct business with 

poorly performing contractors and may result in decreased 

productivity and increased cost. In our view, the department needs 

to develop and implement a set of policies, procedures, and 

internal controls to ensure that poorly performing contractors, 

including those whose services are terminated or considered for 

termination for default or cause are reviewed to determine whether 

a referral to a suspension and debarment official is warranted. 

Suspension and Debarment Practices of Other Agencies and 

Departments 

We reviewed the suspension and debarment practices of several 

other federal agencies. Their practices offer insight into ways the 

department could improve its suspension and department actions. 

A summary of other department and agency actions is presented 

below, and a more complete description of the practices is 

provided in appendix C. 

�	 The United States Air Force, the United States Army, and the 

Department of Housing and Urban Development placed their 

suspension and debarment functions within their Offices of 

General Counsel, which have dedicated staffs with the legal 

expertise and training necessary to pursue, investigate, and 

defend suspension and debarment actions. An Air Force 

official also noted that this organizational placement eliminates 

any perceived conflict of interest. 

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� The Environmental Protection Agency, the United States Navy, 

and the United States Air Force have a single suspension and 

debarment official. According to officials we interviewed, 

having a single suspension and debarment official who is not 

affiliated with the acquisition community provides a fair and 

unbiased platform to evaluate referrals and maintain program 

continuity. 

�	 The Department of Transportation requires annual submission 

to the Office of Senior Procurement Executive of a detailed list 

of all cases in which suspension and debarment actions were 

considered, initiated, or completed, along with the status or 

outcome of each case. The submission includes cases in which 

information was received, even when no suspension or 

debarment action was initiated. When no action was initiated, 

the Operating Administrations or Secretarial Office must 

include an explanation regarding why action was not taken. 

Recording Contractor Performance Information 

The department’s components are not recording in federal 

databases, contractor performance information for contracts that 

are terminated for cause or default. We identified 23 instances 

where the department’s components exercised their right to 

terminate a contract because of a contractor’s failure to perform. 

However, we found no information as to the circumstances and 

conditions underlying the decisions to terminate 21 of the 23 

contracts in either the Contractor Performance System or the Past 

Performance Information Retrieval System. As a result, pertinent 

contract performance information is not being recorded and 

disseminated to procurement specialists across government for use 

in making future source selection determinations. 

With the exception of construction and architect-engineering 

service contracts, there is no government-wide requirement for 

agencies to document when a contractor had been terminated for 

cause or default, regardless of the circumstances or the dollar value 

of the contract. Despite the absence of such requirements, we 

believe that it is always in the government’s best interest to be 

aware of a contractor’s failure to perform. Recording the identity 

of poorly performing contractors and the rationale underlying 

termination decisions in agency and government-wide databases 

would increase the knowledge base of government procurement 

professionals, thereby reducing the risk of entering into contractual 

DHS’ Use of Suspension and Debarment Actions for Poorly Performing Contractors 

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relationships with individuals and corporate entities that have 

histories of not performing in accordance with contract 

requirements. 

Amendments to the FAR have been proposed to expand the 

requirement for agencies to record contractor performance 

information for contracts that have been terminated for cause or 

default.4

 However, until these changes are implemented, we 

believe the department should develop and implement the policies, 

procedures, and internal controls to ensure that all pertinent 

contractor performance information associated with contracts 

terminated for cause or default is recorded in the appropriate 

agency and government-wide databases. 

Recommendations 

We recommend that the Under Secretary for Management: 

Recommendation #1: Develop and implement a set of policies, 

procedures, and internal controls to ensure that poorly performing 

contractors whose contracts that have been terminated or are being 

considered for termination for default or cause, are reviewed to 

determine whether a referral to the suspension and debarment 

official is warranted. The referral determination process should be 

fully-documented and able to demonstrate that the decision is in 

the government’s best interest. 

Recommendation #2: Develop and implement a set of policies, 

procedures, and internal controls to ensure that all pertinent 

contractor performance information is recorded in the appropriate 

agency and government-wide databases to be disseminated to 

procurement professionals across government for use in future 

source selections. 

Management Comments and OIG Analysis 

The DHS Under Secretary for Management concurred with our 

recommendations and provided information on plans and actions 

taken to improve policies, procedures, and internal controls 

governing the use of suspension and debarment for poorly 

4

 Federal Register, Volume 74, Number 169, September 2, 2009, "Federal Acquisition Regulation; FAR 

Case 2008-016, Termination for Default Reporting" 

DHS’ Use of Suspension and Debarment Actions for Poorly Performing Contractors 

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performing contractors. The Under Secretary provided 

clarifications and technical comments as well, which we used to 

update this report as appropriate. The changes made do not 

materially impact the message, findings, or examples we used in 

this audit report 

Management Comments to Recommendation 1 

Concur: The department has developed the policies, procedures, 

and internal controls intended to increase its awareness of poorly 

performing contractors whose contracts have been terminated or 

considered for termination. Contracting officers must provide the 

Office of the Chief Procurement Officer with a copy of the 

termination notice for any order exceeding $1 million. The notice 

is to be accompanied by a brief discussion of the contract or order 

being terminated, the circumstances of the termination, and the 

anticipated impact. Contracting officers must also provide a copy 

of any determination of nonresponsibility to the suspending and 

debarring official when the determination is based in whole or part 

on the prospective contractor’s: 

�	 Lack of satisfactory performance record under DHS 


contracts;
 

�	 Lack of a satisfactory record of integrity and business 

ethics; or, 

�	 Inability to qualify or ineligibility under applicable laws 

and regulations. 

Finally, the department stated its intention to conduct an oversight 

review during the fourth quarter of FY 2010 to determine the 

extent to which its components are complying with Homeland 

Security Acquisition Manual requirements. 

OIG Analysis: The actions taken satisfy the intent of this 

recommendation. This recommendation is resolved, but will 

remain open until we have evaluated the results of the FY 2010 

compliance review. 

Management Comments to Recommendation 2 

Concur: The Under Secretary for Management concurred that all 

pertinent contractor performance information, as defined by statute 

and/or regulation, needs to be recorded in appropriate agency and 

government-wide databases. DHS has conducted agency-wide 

training for contracting personnel, contracting officer’s technical 

DHS’ Use of Suspension and Debarment Actions for Poorly Performing Contractors 

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representatives, and others involved in the process. In addition, 

DHS has published updated guidance in the Homeland Security 

Acquisition Manual to prescribe policies and procedures that 

implement and supplement FAR guidance. 

OIG Analysis: The actions taken satisfy the intent of this 

recommendation. This recommendation is resolved and closed. 

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Appendix A 

Purpose, Scope, and Methodology 

Our objective was to determine the extent to which DHS has 

policies and procedures in place and is enforcing federal 

suspension and debarment requirements. 

We reviewed contracts that were suspended, debarred, or 

terminated for default during FYs 2004 through 2008 for the 

following DHS component agencies: Federal Emergency 

Management Agency, Customs and Border Protection, 

Immigration and Customs Enforcement, Transportation Security 

Administration, United States Coast Guard, and United States 

Citizenship and Immigration Services. 

We interviewed relevant component personnel regarding the 

suspension and debarment process. We also interviewed officials 

at several federal agencies to discuss the elements of their 

suspension and debarment programs and associated internal 

controls. We selected the other agencies based on activity reported 

in the Excluded Parties List System and the Federal Procurement 

Database System. 

We reviewed criteria for suspension and debarment of contractors 

in the Federal Acquisition Regulations, the Homeland Security 

Acquisition Regulations, and the Homeland Security Acquisition 

Manual. We evaluated internal controls that were pertinent to the 

audit objective, and we reviewed DHS suspension and debarments 

listed in the Excluded Parties List System for FYs 2004 through 

2008. We also reviewed audit reports by other agencies. 

We obtained data on the number of contracts terminated for default 

in FYs 2004 through 2008 from each of the components. We also 

identified contracts terminated for default or cause by using 

www.usaspending.gov, a website that provides data from the 

Federal Procurement Data System (FPDS). The FPDS database 

has been evaluated by the Government Accountability Office as a 

reliable source for aggregate contracting and procurement data, but 

it may not be reliable for specific contracting information. We 

followed up with the components to verify information in the 

Federal Procurement Data System. We compared the list of 

contracts terminated for default to information provided in the Past 

Performance Information Retrieval System. We limited our use of 

Past Performance Information Retrieval System to the comparison 

of contractor evaluations for contracts that had been identified as 

terminated for default by other sources. 

DHS’ Use of Suspension and Debarment Actions for Poorly Performing Contractors 

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Appendix A 

Purpose, Scope, and Methodology 

Additionally we interviewed suspension and debarment officials 

from the Department of Housing and Urban Development, United 

States Air Force, United States Army, the Environmental 

Protection Agency, the Department of Transportation, General 

Services Administration, and the National Procurement Fraud Task 

Force. 

We conducted this performance audit between September 2008 

and February 2009 according to generally accepted government 

auditing standards. Those standards require that we plan and 

perform the audit to obtain sufficient, appropriate evidence to 

provide a reasonable basis for our findings and conclusions based 

on our audit objectives. We believe that the evidence obtained 

provides a reasonable basis for our audit findings and conclusions 

based on our audit objectives. 

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Appendix B 

Management Comments to the Draft Report 

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Appendix B 

Management Comments to the Draft Report 

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Appendix B 

Management Comments to the Draft Report 

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Appendix B 

Management Comments to the Draft Report 

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Appendix B 

Management Comments to the Draft Report 

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Appendix B 

Management Comments to the Draft Report 

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Appendix B 

Management Comments to the Draft Report 

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Appendix C 

Suspension and Debarment Practices 

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Appendix C 

Suspension and Debarment Practices 

We identified the following practices at other federal agencies: 

Increasing Suspension and Debarment Program Communication and 

Awareness 

1.	 Appointed representative regularly attends Interagency Suspension and 

Debarment meetings. 

Department of Transportation: A departmental representative attends the 

Interagency Suspension and Debarment Committee meetings and is the sole 

conduit of information input to the Excluded Parties List System for the 

Department. 

2.	 Provide regular procurement fraud training to Contracting Officers,
 

Contracting Officer’s Technical Representatives, and field agents, as 


applicable.
 

United States Air Force: Initial awareness training is administered/documented 

for all new employees. 

3.	 A website, newsletter, or other means of communication is used to provide 

employees with up-to-date information regarding how to report misconduct, 

current administrative agreements, and detailed information regarding 

completed suspension and debarments. 

Department of Transportation: The Department of Transportation’s website 

provides extensive details on the suspension and debarment program and 

supplements the Federal Acquisition Regulation. The website provides extensive 

information on the Department of Transportation’s suspension and debarment 

program. The site contains a “Frequently Asked Questions” section where it 

provides guidance to agency personnel as well as to individuals who have been 

referred for suspension and/or debarment. 

4.	 Provide Specific Guidance on the Procedures for the Investigation and 

Referral of Contractors by Contracting Officers 

United States Air Force: The Air Force Federal Acquisition Regulation 

Supplement requires that the contracting officer shall promptly notify the 

Secretary of the Air Force, Deputy General Counsel for Contractor Responsibility 

or their designate, when they become aware of issues affecting contractor 

responsibility. The contracting officer is required to provide all known 

information relating to any non-responsibility determination; any indictment, 

conviction, or civil judgment relating to an offeror’s or contractor’s lack of 

integrity or business honesty, regardless of whether the indictment, conviction, or 

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Appendix C 

Suspension and Debarment Practices 

civil judgment is related to a government contract; or any recommendation for a 

termination for default.

Taking a Proactive Approach to Protect the Government’s Interest 

1.	 Negligent contractors enter into Administrative Agreements, agreeing to take 

certain actions that will protect the government. 

General Services Administration: The General Services Administration advised 

that an administrative agreement is appropriate if the suspending and debarring 

official is convinced that it is in the best interest of the government to continue 

business with a contractor, but feels the contractor needs to be monitored. If the 

contractor agrees to implement procedures and systems that protect the 

government, an administrative agreement can be put in place and the contractor 

will be removed from the Excluded Parties List System. 

2.	 Attend quarterly departmental suspension and debarment review panels. 

Each agency sends appointed representatives to present suspension and 

debarment referrals, actions, administrative compliance agreements, and/or 

contracts terminated for cause. 

Department of Transportation: The Office of the Senior Procurement Executive 

chairs a quarterly meeting for all Operating Administrations to discuss suspension 

and debarment within the department. All Office Administrations have to attend, 

in accordance with Department of Transportation directive DOT Order 4200.5D, 

Government wide Debarment, Suspension, and Ineligibility. 

Using Data Management to Improve Program Oversight and Execution 

1.	 The department reports and tracks suspension and debarment referrals and 

actions in a central database. The database has a mechanism for providing 

periodic reporting of status or results of suspension and debarment actions to 

the department. 

Department of Housing and Urban Development: The Department of Housing 

and Urban Development hired contractors to develop a referral tracking system 

that suspension and debarment analysts use to input referrals. The system allows 

for all pertinent data, respondent information, notes, communications, analysis, 

and other information to be placed in the system and tracked. The system also 

enables Housing and Urban Development to pull reports to identify problem areas 

and to print those reports. 

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Appendix C 

Suspension and Debarment Practices 

Department of Transportation: The Department of Transportation utilizes 

Microsoft SharePoint (2003) to track all referrals. This web-based system 

provides subordinate component agencies (as well as headquarters elements with 

a need to know) proper access to view, comment, or add pertinent data to each 

referral. 

United States Air Force: The Air Force uses a contractor-designed database to 

track suspension and debarment referrals. The database is a web-based tracking 

system. 

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Appendix D 

Major Contributors to this Report 

Richard T. Johnson, Director, Immigration and Enforcement Programs 

Robert Greene, Desk Officer, Immigration and Enforcement Programs 

Jeanette Hyatt, Project Lead 

Holly Snow, Program Analyst in Charge 

Anthony Colache, Program Analyst 

Virginia Feliciano, Auditor 

Ebenezer Jackson, Program Analyst 

Falon Newman-Duckworth, Program Analyst 

Brian Smythe, Program Analyst 

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Appendix E 

Report Distribution 

Department of Homeland Security 

Secretary 

Deputy Secretary 

Chief of Staff for Operations 

Chief of Staff for Policy 

Deputy Chiefs of Staff 

General Counsel 

Executive Secretariat 

Director, GAO/OIG Liaison Office 

Assistant Secretary for Office of Policy 

Assistant Secretary for Office of Public Affairs 

Assistant Secretary for Office of Legislative Affairs 

Office of the Chief Procurement Officer Liaison 

Customs and Border Protection Liaison 

Federal Emergency Management Agency Liaison 

Immigration and Customs Enforcement Liaison 

Transportation Security Administration Liaison 

United States Coast Guard Liaison 

Citizenship and Immigration Services Liaison 

Office of Management and Budget 

Chief, Homeland Security Branch 

DHS OIG Budget Examiner 

Congress 

Congressional Oversight and Appropriations Committees, as 

appropriate 

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ADDITIONAL INFORMATION AND COPIES 

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fax your request to (202) 254-4305, or visit the OIG web site at www.dhs.gov/oig. 

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Attention: Office of Investigations - Hotline, 

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