Suspension and debarment of soldiers: can we do it? Yes, we can

(4) Made-In-America label violations;

(5) 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. (65)

Further, an SDO can debar a contractor upon a showing of a preponderance of evidence that a contractor:

(1) seriously violated the terms of a Government contract or subcontract by willfully failing to perform in accordance with the terms of one or more contracts or having a history of failing to perform or continued unsatisfactory performance;

(2) Drug-Free Workplace violations;

(3) commission of unfair trade practice;

(4) immigration related violations; or

(5) any other cause of so serious or compelling a nature that it affects the present responsibility of the contractor subcontractor. (66)

Given the array of causes for debarment, many practitioners overlook the fact that Soldiers who engage in acquisition related misconduct are eligible for suspension or debarment. Each case, however, is fact driven and only relevant for Soldiers that can be considered "contractors" under the FAR.

Soldiers and Contractors: One and the Same?

It may seem surprising to equate "Soldiers" as "contractors" in this day and age of contractors accompanying the force on the battlefield. (67) The lines between contactors and Soldiers, however, are increasingly fading. The current suspension and debarment process is structured to address this phenomenon.

The FAR 9.403 broadly defines "contractor" for purposes of suspension and debarment as:

any individual or other legal entity that--

(1) Directly or indirectly (e.g., through an affiliate), submits offers for or is awarded, or reasonably may be expected to submit offers for or be awarded, a Government contract, including a contract for carriage under Government or commercial bills of lading, or a subcontract under a Government contract; or

(2) Conducts business, or reasonably may be expected to conduct business, with the Government as an agent or representative of another contractor. (68)

This broad definition includes those that "may be expected to conduct business with the Government." (69) When applying this definition to CW2 Fingers' scenario, it is clear that subpart 9.4 of the FAR can easily be applied to active duty Soldiers both with acquisition experience and also who are likely to seek employment in the federal acquisition workforce or federal contracting. However, it is necessary to draw a clear "nexus" between a Soldiers likelihood to pursue federal contracting and the need to protect the military's acquisition system.

Arguably, there may be little reason to "suspend" an active duty Soldier for procurement related misconduct. (70) The preferral of charges alone limits a Soldier's actions. (71) Further, the simple issuance of a commander's order or a change in official duties can normally rectify a situation and protect the government from acquisition related misconduct while the Soldier remains on active duty. When the situation involves a Soldier nearing retirement, administrative separation, (72) excess leave, or a post-trial scenario, however, it would be prudent to consider the harm that Soldier may cause the military acquisition system in the future. For those Soldiers, debarment may be an effective preventative measure, and a nexus can be articulated. Colonel Moran's and CW2 Fingers' situations provide clear examples of a need to protect the government's acquisition system and a nexus to an expectation of conducting business with the government in the future. (73) Further, the length of any debarment must be tailored to protect the procurement system when it is likely a Soldier may enter the contractor workforce or attempt to contract with the government. (74)