September 12, 2008

Immigration and Nationality Act (INA) Debarment Questions and Answers

1.) How is debarment defined?

Federal Acquisition Regulation (FAR) Subpart 2.1 provides a definition of debarment. “Debarment” means action taken by a debarring official under 9.406 to exclude a contractor from Government contracting and Government-approved subcontracting for a reasonable, specified period; a contractor that is excluded is “debarred.” Also refer to 2 CFR Part 180, Subpart 1 – Definitions: § 180.925 Debarment. Debarment means an action taken by a debarring official under Subpart H of this part to exclude a person from participating in covered transactions and transactions covered under the Federal Acquisition Regulation (48 CFR chapter I). A person so excluded is debarred.

2.) Who is considered to be a contractor?

The FAR Subpart 9.403 defines a “contractor” broadly to include any individual or other legal entity that conducts any business, or is expected to conduct any business, with the Government as an agent or representative of another contractor.

3.) What is the period of exclusion for a debarment taken under the Immigration and Nationality Act?

The ICE Suspension and Debarment Official (SDO) would determine the length of the debarment commensurate with the seriousness of the cause(s) and the period of debarment would depend on whether the violation was civil or criminal.  For civil violations, the Cause and Treatment Code (CT Code) 08-INA-01 in the Excluded Parties List System (EPLS) states “Debarments are for one year, and may be extended for additional one year increments if continuing violations are found by the Secretary of Homeland Security or the Attorney General”. For criminal violations, the CT Code 08-INA-02 states “Debarments are for a specified term as determined by the debarring agency and as indicated in the listing.”  See FAR 9.406-4.

4.) What are the causes for a debarment taken under the Immigration and Nationality Act?

Under the authority of Executive Orders 12989 and 13286, contractors may be considered for debarment, pursuant to FAR § 9.406-2(b)(2), for several different violations of the INA including:

• Convictions of knowingly hiring unauthorized workers;
• Convictions of continuing to employ an alien who is or becomes unauthorized;
• Convictions of engaging in patterns and practices of knowingly hiring or continuing to knowingly employ unauthorized workers; or,
• Issuance of a final order for a civil fine which reflects unlawful hiring or continuing to hire unauthorized workers.

5.) How will a contractor know they are going to be debarred?

The FAR Subpart 9.406-3 (c) Notice of Proposal to Debar, details the debarment process. Contractors being considered for debarment will be notified of the basis for proposed debarment and have 30 days to respond, in writing, in person, or through a representative, as to why they should not be debarred.

6.) What companies are you looking at now?

Please refer to our press releases as we issue notifications to contractors and update the Excluded Parties List System (EPLS) with their names. 

7.) I didn’t know about this policy before.  Why is my company being debarred now?

The former INS was authorized to debar companies who hire unauthorized workers in 1996.  The INS worksite strategy, however, focused primarily on the use of civil fines to gain employer compliance.  In contrast, ICE implemented a worksite enforcement strategy that focused on bringing criminal charges and seeking criminal fines and forfeitures against employers. This investigative strategy has resulted in convictions and violations that make companies amenable for debarment. The initial companies notified of possible debarment have been found to have knowingly hired or continued to employ unauthorized workers within the past 2 years.

8.) How does the debarment affect major corporations and their components?  Say a major corporation is debarred, does that mean all its subsidiaries are debarred as well?

Normally, the scope of the debarment will be limited to those organizational units that have engaged in the unlawful hiring of unauthorized workers.

See FAR Subpart 9.406-1 (a) and (b)(1) and (2) for a complete discussion. The debarring official must determine whether debarment is in the Government’s interest. The debarring official may debar a contractor for any of the causes in FAR Subpart 9.406-2, using procedures in 9.406-3. The existence of a cause for debarment 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 before any debarment action is taken. Debarment constitutes debarment of all divisions or other organizational elements of the contractor unless the decision is limited by its terms to specific divisions, organizational elements, or commodities.  

9.) How many contractors are currently debarred?

ICE currently has not debarred any contractors.  Once ICE debars a contractor, its name and information will be entered into the Excluded Parties List System (EPLS) by ICE.

10.)  What is the Excluded Parties List System (EPLS)?

The Excluded Parties Listing Systems (EPLS) is an electronic, web-based system that identifies parties suspended, debarred, proposed for debarment or otherwise excluded from receiving Federal contracts, certain subcontracts, and certain types of Federal financial and non-financial assistance and benefits.  The General Services Administration is the agency responsible for maintaining the EPLS.  To view the EPLS and to find out more information about the system, please visit www.epls.gov.

12.) If a contractor is debarred and they have an existing contract, what happens to them?

FAR 9.405-1 Continuation of current contracts states,

1. Notwithstanding the debarment or proposed debarment of a contractor, agencies may continue contracts or subcontracts in existence at the time the contractor was debarred or proposed for debarment unless the agency head directs otherwise. A decision as to the type of termination action, if any, to be taken should be made only after review by agency contracting and technical personnel and by counsel to ensure the propriety of the proposed action.
2. For contractors debarred or proposed for debarment, unless the agency head makes a written determination of the compelling reasons for doing so, ordering activities shall not-
   1. Place orders exceeding the guaranteed minimum under indefinite quantity contracts;
   2. Place orders under optional use Federal Supply Schedule contracts, blanket purchase agreements, or basic ordering agreements; or,
   3. Add new work, exercise options, or otherwise extend the duration of current contracts or orders.