PREAMBLE

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.

BACKGROUND

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.

• The Federal Acquisition Regulations at 48 C.F.R. Subpart 9.4 governs federal suspension and debarment requirements for direct federal spending.
• 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.  
• 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.

OBJECTIVE

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:  

• 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.
• Identify states without an existing suspension and debarment program for contractors, along with any explanations as to why no program exists.
• 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.
• Identify barriers to creating a suspension and debarment program for contractors, including any constitutional issues.
• 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.

The final deliverable from this project should include: 

• Common attributes.  Present considerations common across existing state suspension and debarment programs for contractors. For example: (1) are state programs similar to or different from current or past federal suspension and debarment regulations, (2) which official or office makes decisions regarding the suspension and debarment of contractors, (3) what levels of due process are provided to entities and individuals, and (4) what factors are relevant to suspension and debarment determination.
• Remedies. Explain the remedies authorized under state suspension and debarment programs for contractors, including but not limited to any allowed actions, such as exclusions from contracting opportunities, financial compensation, and compliance monitoring. Present the minimum, maximum, and routine length of exclusion for contractors under suspension and debarment. Detail the role of written submissions, meetings with suspension and debarment officials, and hearings.
• Appeals. Explain how appeals of decisions are made and identify the reviewing authorities, whether administrative or judicial.
• Best practices. Identify and document best practices in existing state and local-level suspension and debarment programs for contractors.
• Model program. Provide recommendations to improve existing state and local suspension and debarment programs and outline a model uniform state suspension and debarment program for contractors.

RESEARCH IMPLEMENTATION

This research will be conducted in four tasks under a firm fixed-price agreement. The tasks will be as follows:

Task 1. Develop a research plan and detailed report outline. The consultant will (1) prepare a plan to conduct research and collect relevant material, and (2) propose a detailed report outline. The research plan should be about 8-12 pages and include the proposed survey if one is to be used.  The report outline should contain sufficient detail to inform the NCHRP and TCRP project panel of what a 75-100-page report will contain and include the estimated pagination for each proposed section and subsection. This material will be submitted to NCHRP and TCRP for consideration and approval.

Task 2. Conduct research. After approval of the work plan, the consultant should conduct additional research and case and statutory/regulatory analysis.

Task 3. Submit draft report in accordance with the approved work plan (including modifications required by NCHRP and TCRP).

Task 4. Submit final report. The consultant should anticipate making two revisions to the report before the report is finalized. One revision may be required after review by the NCHRP and TCRP staff and members of a select subcommittee. Final revisions may be necessary after the full committee has reviewed the report.

PAYMENT SCHEDULE

25% paid upon submission and approval of the Task 1 report.

50% paid upon submission and approval of the Task 3 report.

25% paid upon submission and approval of the final report (following revisions as required by NCHRP and TCRP).

HOW TO PROPOSE

Proposals should be submitted as a single PDF with the following information in the following order:

1. Summary sheet
2. A research plan that describes each task in sufficient detail to allow the review panel to make an informed assessment of the likelihood of the proposer's success. The plan must include:
   • An introduction that provides a concise overview of the proposer's understanding of the topic and the issues presented, the proposed team's experience and qualifications relevant to the topic, and the team's proposed approach to conducting the research and preparing the report;
   • A brief outline of the proposed contents of the report;
   • Detailed information on the proposed research methodology for each task in sufficient detail to permit evaluation of achieving the objective(s);
   • A statement of resources (e.g., hours per person per task) allocated to this project, and timelines for each task;
   • Resumes of key team members along with a description of responsibilities;
   • Any additions, deletions, or changes you wish to suggest to the scope of work for undertaking the work; and
   • A list of relevant prior publications (one or two samples may be enclosed).

SPECIAL NOTES

A. Proposers should read Guidance for Working on NCHRP and TCRP Legal Projects for more information.

B. The Information and Instructions for Preparing Proposals for the Transportation Research Board’s Cooperative Research Programs have been modified to include a revised policy and instructions for disclosing Investigator Conflict of Interest. For more information, refer to chapter IV of the instructions. A detailed definition and examples can be found in the CRP Conflict of Interest Policy for Contractors. The proposer recommended by the project panel will be required to submit an Investigator Conflict of Interest and Disclosure Form as a prerequisite for contract negotiations. 

C. Proposals will be rejected if any of the proposed research team members work for organizations represented on the project panel. The panel roster for this project can be found at this link. Proposers may not contact panel members directly; this roster is provided solely for the purpose of avoiding potential conflicts of interest. 

D. Proposals are evaluated by the NCHRP staff and project panels consisting of individuals collectively knowledgeable in the problem area. The project panel will recommend their first choice proposal considering the following factors: (1) experience and knowledge in the subject area; (2) experience in research writing (examples of prior writing); (3) prior relevant publications, including briefs; (4) quality and commitment of staff and other resources assigned to the project; (5) schedule for completing work; and (6) price. A recommendation by the project panel is not a guarantee of a contract. The National Academy of Sciences (NAS - the contracting authority for the National Academies of Sciences, Engineering, and Medicine) will conduct an internal due diligence review and risk assessment of the panel's recommended proposal before contract negotiations continue.

E. Copyrights - All data, written materials, computer software, graphic and photographic images, and other information prepared under the contract and the copyrights therein shall be owned by the National Academy of Sciences. The contractor and subcontractors will be able to publish this material for non-commercial purposes, for internal use, or to further academic research or studies with permission from TRB Cooperative Research Programs. The contractor and subcontractors will not be allowed to sell the project material without prior approval by the National Academy of Sciences. By signing a contract with the National Academy of Sciences, contractors accept legal responsibility for any copyright infringement that may exist in work done for TRB. Contractors are therefore responsible for obtaining all necessary permissions for use of copyrighted material in TRB's Cooperative Research Programs publications. For guidance on TRB's policies on using copyrighted material please consult Section 5.4, "Use of Copyrighted Material," in the Procedural Manual for Contractors.