directed to the "present responsibility" of the contractor. Robinson v. Cheney, 277 U.S. App. D.C. 393, 876 F.2d 152, 160 (D.C. Cir. 1989). The agency is required to carefully consider any favorable evidence of responsibility to ensure that all findings of responsibility are based on the presence of a realistic and articulable threat of harm to the government's proprietary interest. Id. at 159-160. The Robinson court expressly admonished federal agencies that government contractors must be afforded a meaningful "opportunity to overcome a blemished past," to ensure that an agency "will impose debarment only in order to protect the government's proprietary interest and not for the purpose of punishment." Id.
The causes for debarment are given at FAR 9.406-2. Among those listed, a contractor may be debarred for a conviction for the "commission of fraud or a criminal offense in connection with (i) obtaining, (ii) attempting to obtain, or (iii) performing a public contract or subcontract." FAR 9.406-2(a)(1). In actions predicated upon a conviction, the debarment decision must be based on all the information in the administrative record. FAR 9.406-3(d). The facts underlying a conviction are, logically, not subject to dispute in a debarment proceeding, having been established beyond a reasonable doubt by the criminal adjudication. The debarring official should, however, consider the seriousness of the contractor's acts or omissions and any mitigating factors which may be present when making the decision to debar, and if so, in determining the length of the debarment. FAR 9.406-1(a), 9.406-3(d).
Debarment is thus a discretionary action designed to effectuate the government's policy of doing business only with responsible contractors. FAR 9.402(a). Debarment is imposed "only in the public interest for the Government's protection." FAR 9.402(b). In every case, the standard for debarment is the contractor's present responsibility for government contracting.
The DLA decision to debar Mr. Silverman came six years after he made the statement that underlies his misdemeanor conviction. During that time, the government, after suspending Mr. Silverman's National Stock Numbers and limiting his business, continued to let contracts to him. Mr. Silverman claims to have pled guilty to a misdemeanor and paid the $ 250 fine in order to end the matter and rebuild his business. (Plaintiffs' Memorandum of Points and Authorities for Summary Judgment, filed December 28, 1992, at 14-15.)
The standards governing debarment actions were applied in a factual context similar to that at bar in Roemer v. Hoffmann, 419 F. Supp. 130 (D. D.C. 1976). In that case, a manufacturer's representative was convicted of wrongly accepting money. He was debarred for a period of three years. The court set aside the debarment, holding that the agency failed to consider evidence having a tendency to diminish the impact of the conviction on the contractor's present responsibility. The Roemer court's analysis of present responsibility was properly focused on the seriousness of the offense, the length of time that had passed since the offense, and the contractor's conduct in the interim. Had DLA applied these same principles, plaintiffs may well have been found to be presently responsible.
It appears to this court that DLA did not consider Mr. Silverman's reasons for pleading guilty to the misdemeanor charge of conversion of government property. DLA chose not to "undertake a de novo review of the facts established by the conviction." Administrative Record ("AR") at 11. Therefore, DLA essentially failed to consider the mitigating effects of Mr. Silverman's motivation in pleading guilty.
DLA's admitted refusal to consider these facts renders its decision arbitrary, capricious and an abuse of discretion. The fact that DLA continued to enter into contracts with plaintiffs for a period of six years following the events underlying the misdemeanor conviction calls into question the agency's conclusion that plaintiffs were not presently responsible in May 1992. The term of the debarment is thus inexplicably lengthy, owing primarily to DLA's admitted refusal to consider the mitigative facts surrounding the conviction. The agency's action is therefore insupportable under the standard articulated in Overton Park. Accordingly, the debarment of plaintiffs from all government contracts will be terminated forthwith.
IT IS SO ORDERED.
Earl B. Gilliam, Judge
United States District Court
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