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Hello!

I thought this would be a good question for this forum to get a good idea on how things are done in other agencies.

How often do you check the System for Award Management (SAM) for active exclusions? Do you check it for every contract action? That is how I was trained but someone brought up today that this may not be necessary. The FAR prohibits soliciting, or awarding to vendors that are on the excluded parties list but does not specifically require the Contracting Officer to check for every modification (e.g. admin changes).  I found two applicable references which are verbose but nothing specific to requiring the check for every contract action - FAR 4.11 and 9.404-9.405:

FAR 4.1103(a)(1) says that the Contracting Officer "(1) Shall verify that the prospective contractor is registered in the SAM database before awarding a contract or agreement. Contracting officers are encouraged to check the SAM early in the acquisition process, after the competitive range has been established, and then communicate to the unregistered offerors that they shall register;"

FAR 9.404(c)(7) says that each agency must "(7) Establish procedures to ensure that the agency does not solicit offers from, award contracts to, or consent to subcontracts with contractors whose names are in the SAM Exclusions, except as otherwise provided in this subpart;"

I'm at the Dept of Homeland Security. I can't find any agency specific information to requiring a check for every contract action either. Do you think this is something that was passed down as a best practice but not a requirement?

This could also adversely affect a CO if they award a modification and find out that a vendor has been suspended so it could result in more dire consequences.

I would love to know what you think!

 

 

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This suggests that you would check with regard to some specific contract actions......

FAR 9.405-1  Continuation of current contracts.

(a) Notwithstanding the debarment, suspension, or proposed debarment of a contractor, agencies may continue contracts or subcontracts in existence at the time the contractor was debarred, suspended, 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.

(b) For contractors debarred, suspended, 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 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.

 

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There is no requirement in the FAR to check SAM for every modification that is issued to an existing contract.  However, some actions such as exercising an option may require it (17.207(c)(5)).  As C Culham points out, even if a contractor under and existing contract is debarred, suspended, or proposed for debarment, agencies may continue with those contracts unless the agency head directs otherwise, except for the types of actions specifically excluded, absent a determination by the agency head.

Despite this, some agencies or offices may have local policies that require checking for a SAM exclusion more frequently, such as every modification or every payment.  I would question the additional burden this places on COs versus the benefit to the Government.  I suspect that a very very small percentage of all those checks would reveal a contractor that is now on the excluded list.  Even if someone finds that a contractor is on the excluded list, it may or may not have any impact on the existing contract.  Odds are the contractor will still perform and the Government will make payment. 

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Thank you both! I think I just realized that it isn't a requirement for every action. That must have been a habit our office wanted us to get used to. However, I cannot find any local policy requiring that check.

But there is a part of me that is concerned about that rare circumstance where a CO might award an administrative modification, not check SAM, and find out they are on the excluded parties list. Is that something they would be held accountable for?

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19 minutes ago, ICE-CO said:

Is that something they would be held accountable for?

What do you mean by "held accountable for?"

Based on your first post and this one, I think you may have a habit of worrying too much.  Take a deep breath and read the following FAR excerpts until they're permanently ingrained in your contracting psyche:

Quote

FAR 1.102(d) "The role of each member of the Acquisition Team is to exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer’s needs. In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority"

FAR 1.102-4(e) "The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team. If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound."

Don't paralyze yourself over rules that may or may not exist.  Research thoroughly, but if you come up empty and your actions are reasonable, based on sound business judgment, and documented, you won't find yourself in trouble (just don't do anything illegal, unethical, or immoral).  If someone does try to punish you for such actions, you're probably in the wrong organization to begin with.

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Thanks for the feedback! I just mean, by "held accountable", is it something that would be universally seen as poor practice in an audit or is it considered as general organizational best practice; but also, how would management view this issue if it came up? Definitely not a paralyzing issue; just trying to get a feel for what may be "normal" procedure outside of DHS. Thanks!

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2 hours ago, ICE-CO said:

But there is a part of me that is concerned about that rare circumstance where a CO might award an administrative modification, not check SAM, and find out they are on the excluded parties list. Is that something they would be held accountable for?

Did you read C Culham's posting and FAR 9.405-1?

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15 hours ago, ji20874 said:

Did you read C Culham's posting and FAR 9.405-1?

Yes! I get the FAR reference which really is what has initiated most of this process. The FAR allows for you to NOT have to check at every contract action (depending on the action). I was more asking if there were any local policies that required us to check for exclusion. There seems to be an idea (which has caught on) at DHS, that you have to check for EVERY contract action. I'm trying to see if that is something people at other agencies do or where that came from. Thanks!

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What if ten people from ten other agencies told you that their local policy is to check SAM for every contract action, including in-scope actions? Would you then think it's the right thing to do?

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1 minute ago, Vern Edwards said:

What if ten people from ten other agencies told you that their local policy is to check SAM for every contract action, including in-scope actions? Would you then think it's the right thing to do?

Oh wow... I guess this thread could probably be deleted now... Was trying to get an idea of what other people did.

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In ICE-CO's defense, the majority of DHS-ICE here in DC seems to have this idea that it is required for every contract action, which I thought to be ridiculous when I was given a file audit and said SAM was missing for an admin mod.

I spoke to the internal senior level auditor and requested she show me in the FAR where it is "required" and she cited FAR 52.204-17(b)(1) which states: "(b)(1) By submission of an offer, the offeror acknowledges the requirement that a prospective awardee shall be registered in the SAM database prior to award, during performance, and through final payment of any contract, basic agreement, basic ordering agreement, or blanket purchasing agreement resulting from this solicitation.

She said since it says "during performance", any time we are touching a contract (modification) we should be doing our due diligence to verify their SAM registration is active. Does it hurt? No. But it is definitely not mandatory per the FAR.

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59 minutes ago, KubNation said:

Does it hurt? No. But it is definitely not mandatory per the FAR

Precisely.  The question should be: Is checking SAM prior to spending taxpayer dollars a sound business practice?  Contractors' circumstances change all the time. I just had one show up with a "Delinquent Federal Debt" flag in SAM prior to executing a mod.

As a procurement professional, how would it look if you didn't know that you were sending tax dollars to someone who owed the American public a monetary debt, especially when the information was literally at your fingertips?  

What would you say if an auditor asked why you obligated funds to someone with a delinquent federal debt?  

What does a delinquent federal debt say about that contractor as a reliable business partner going forward?  

How about the fact that (in my case) a little further research showed that this vendor had a previous Federal Debt flag? 

 

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REA, if your modification is not a new award or exercising an option period, there is nothing in the FAR prohibiting you as a CO from executing that modification; even if they have a delinquent federal debt. As stated previously, FAR 9.405-1 Continuation of Current Contracts addresses those instances. If your modification were not new work or an option, an auditor has nothing to reference to say you should have checked SAM. Am I not going to execute an admin modification to my contract because the vendor now has an exclusion in SAM? Of course I am, I just won't be able to exercise an option if and when that time comes.

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ICE-CO,

Now you know what the WIFCON community generally thinks on this subject.  I hope you are able to help change the culture in your organization.  Anyone in your organization who tells you that a SAM check is needed for an administrative modification, and must be documented in the file, is wrong, as far as the FAR is concerned.  We cannot speak for your agency or local regulations, but you said you cannot find anything.  That's great!  Now you can stop, and encourage others to stop, too.  But you might offend others, so do it professionally.  You spoke of dire consequences and being held accountable -- I hope you haven't faced any of this in your professional growth.

2 hours ago, KubNation said:

I spoke to the internal senior level auditor and requested she show me in the FAR where it is "required" and she cited FAR 52.204-17(b)(1) which states: "(b)(1) By submission of an offer, the offeror acknowledges the requirement that a prospective awardee shall be registered in the SAM database prior to award, during performance, and through final payment of any contract, basic agreement, basic ordering agreement, or blanket purchasing agreement resulting from this solicitation.

This is a real part of our problem, isn't it -- senior level auditors auditing for their own preferences, rather than their agency's regulations. That's sad.

Here's an idea -- in the place in your contract file where an auditor will expect to find the SAM printout for an administrative modification, print this thread and put it there instead.

Oh, and by the way, in your original posting, you asked if maybe this was a best practice if not a written requirement.  It is not a best practice; I think it is a poor practice.

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1 hour ago, ji20874 said:

Here's an idea -- in the place in your contract file where an auditor will expect to find the SAM printout for an administrative modification, print this thread and put it there instead.

:lol:

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