On March 8, 2016, a final rule changed the position of the National Aeronautics and Space Administration’s (“NASA”) suspending and debarring official (“SDO”).  The SDO had been NASA’s Assistant Administrator for Procurement.  The final rule reassigns the position to NASA’s Deputy General Counsel.  Public comments were not accepted because NASA concluded that the change “affects only the internal operating procedures” of the agency.

Not mentioned in this action is Section 861(a) of the National Defense Authorization Act of 2013.  That law applies to the U.S. Department of Defense (“DoD”), the U.S. Department of State (“State”), and the U.S. Agency for International Development (“USAID”), not to NASA, but for those agencies it specifically prohibits the not-uncommon practice of having a procurement officer act as an SDO.  Last year, in International Relief and Development, Inc. et al. v. United States Agency for International Development et al., No. 15-CV-854 RCL (D.D.C.), a federal court concluded that such an arrangement at USAID likely violated Section 861(a).

Section 861(a) precipitated a necessary discussion on the independence and impartiality of SDOs.  It is not hard to imagine how an SDO who also serves as a procurement officer could be predisposed against a contractor.  But even if NASA’s change tacitly acknowledges this concern, it hardly resolves it.  Conditioned already to advocate for a particular client, agency counsel are sure to have predispositions, as well.

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Photo of Frederic Levy Frederic Levy

Frederic Levy is one of the nation’s leading suspension and debarment lawyers, focusing his practice on the resolution of complex compliance and ethics issues. He has successfully represented numerous high-profile corporations and individuals under investigation by the government in civil and criminal matters…

Frederic Levy is one of the nation’s leading suspension and debarment lawyers, focusing his practice on the resolution of complex compliance and ethics issues. He has successfully represented numerous high-profile corporations and individuals under investigation by the government in civil and criminal matters, including False Claims Act cases, and in suspension and debarment proceedings to ensure their continued eligibility to participate in federal programs. He has also conducted numerous internal investigations on behalf of corporate clients, particularly in the areas of program fraud and export controls, and often involving sensitive personnel or fiduciary matters. He has also advised corporations in voluntary or mandatory disclosures to a variety of federal agencies. Mr. Levy regularly counsels clients on government contract performance issues, claims and terminations, and he litigates such matters before the boards of contract appeals and in the Federal Circuit.