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Legal Problems Arising out of Highway Programs. Topic 27-02. State and Local Suspension and Debarment Programs of Contractors

This is a joint project of the National Cooperative Highway Research Program (NCHRP) and the Transit Cooperative Research Program (TCRP). There are plans to award a contract for a study and report under both programs. Legal reports sponsored by this project are published in NCHRP's and TCRP’s Legal Research Digest (LRD) series. Publications are available to some libraries and approximately 4,000 transportation lawyers and officials through the TRB distribution network. State and local governments participate in a variety of federally funded transit and highway transportation programs. Contractors that do not provide goods or services consistent with government contract requirements have long been a concern for governments. While private entities can decline to do additional business with a contractor who fails to perform or defrauds the entity, in the United States the contractor must be officially disqualified to bid on or contract with a government entity to protect the contractor's due process rights. This due process requirement protects the contractor from the vagaries of individual personalities within the contracting government agency and from political pressures unrelated to the contractor's performance.   Suspension and debarment programs for contractors protect government funds from entities or individuals who commit fraud, commit safety violations, fail to meet contract requirements, fail to pay wages in the manner required by law, or engage in other misconduct on government contracts. These programs help ensure the contractors' responsibility. State and local-level suspension and debarment program requirements vary widely across the nation.   A number of regulations and requirements characterize federal suspension and disbarment programs. (1) The Federal Acquisition Regulations at 48 C.F.R. Subpart 9.4 governs federal suspension and debarment requirements for direct federal spending. (2) The similar, but not identical, Office of Management and Budget's Nonprocurement Common Rule regulation at 2 C.F.R. Part 180 governs suspension and debarment requirements involving indirect, nonprocurement spending through federal grants and loans.   (3) The System for Award Management (SAM) contains the electronic roster of debarred or suspended companies excluded from federal procurement and nonprocurement programs throughout the U.S. government, from receiving federal contracts or certain subcontracts, and from certain types of federal financial and nonfinancial assistance and benefits.  Generally, a federal agency can only debar an entity that poses a present risk to federal programs. Debarment and suspension cannot be used as punishment for past wrongdoings.  The consistency provided by the federal regulations for federally funded contracts is lacking among the states and local governments, which have a patchwork of protection for state and locally funded highway and transit contracts. Research is needed to (1) understand the authorization and implementation process for state and local-level suspension and debarment programs and (2) develop consistent and reliable mechanisms to protect the integrity of state and local public highway and transit contracts. This research aims to produce a report that provides practical advice and guidance for public highway and transit agencies and their attorneys to develop, improve, and implement debarment and suspension programs for contractors to protect public funds. This study seeks to provide guidance to state and local governments that do not have an existing robust suspension and debarment program for contractors.  The research for this project should:   (1) Identify states with existing suspension and debarment programs for contractors, including the legal method used to authorize that program, such as state statute, regulation, and guidance, and which states have adopted programs parallel with federal suspension and debarment regulations. (2) Identify states without an existing suspension and debarment program for contractors, along with any explanations as to why no program exists. (3) Examine the extent to which state debarment and suspensions of contractors apply to local government highway and transit agencies and how local governments are bound by or may create exceptions to state determinations using local funds only or other mechanisms. (4) Identify barriers to creating a suspension and debarment program for contractors, including any constitutional issues. (5) Evaluate the implementation approaches to existing suspension and debarment programs of contractors, including the offices tasked with suspension and debarment implementation and the levels of staffing for such programs, and develop steps for implementing a suspension and debarment program for contractors.

Language

  • English

Project

  • Status: Proposed
  • Funding: $100000
  • Contract Numbers:

    Project 20-06, Topic 27-02

  • Sponsor Organizations:

    National Cooperative Highway Research Program

    Transportation Research Board
    500 Fifth Street, NW
    Washington, DC  United States  20001

    American Association of State Highway and Transportation Officials (AASHTO)

    444 North Capitol Street, NW
    Washington, DC  United States  20001

    Federal Highway Administration

    1200 New Jersey Avenue, SE
    Washington, DC  United States  20590
  • Project Managers:

    Chisholm-Smith, Gwen

  • Start Date: 20230905
  • Expected Completion Date: 0
  • Actual Completion Date: 0

Subject/Index Terms

Filing Info

  • Accession Number: 01887181
  • Record Type: Research project
  • Source Agency: Transportation Research Board
  • Contract Numbers: Project 20-06, Topic 27-02
  • Files: TRB, RIP
  • Created Date: Jul 11 2023 10:58AM