AGC Urges Congress to Oppose Efforts to Inject Debarment Standards or Procedures Into the Debate Over Immigration Reform

March 5, 2007

Dear Senator/Representative:

The Associated General Contractors of America (AGC) is the largest of the nationwide trade associations of building, highway, heavy, industrial and utility construction contractors.  On behalf of its more than 32,000 members, AGC continues to oppose misguided efforts to inject federal debarment standards into the debate over immigration reform, including Section 249 of the Senate passed version of H.R. 2, the “Fair Minimum Wage Act.”  

The critical but singular purpose of debarment is to advance the government’s interest in efficiently and cost-effectively procuring the goods, services and construction the government requires.  It is widely and well understood that debarment may “be imposed only in the public interest for the government’s protection, and not for purposes of punishment.”  FAR 9.402(b).   To the extent necessary to protect that interest, the Federal Acquisition Regulation (FAR) already provides for the debarment of any current or prospective contractor “that is not in compliance with the Immigration and Nationality Act employment provisions.”  FAR 9.406-2(b)(2).  Indeed, such violations are already on a par with convictions for embezzlement, theft, forgery, bribery, tax evasion and equally egregious behavior.  FAR 9.406-2(a).  Congress should require no more.

In the past, the courts have granted debarring officials the discretion to be “as informal as is practicable.” FAR 9.406-3.  With due regard for the limited purpose of debarment, the courts have not insisted on all of the complex, costly and time-consuming trappings of either civil or criminal litigation.  Section 249 and similar measures threaten to change all of that.  Their punitive nature and purpose are manifest.  If they became law, government contractors would inevitably insist on more procedural protections, and the Due Process Clause of the Fifth Amendment could quickly come into play.  The debarment process, as we know it today, could simply cease to exist.  

Also lost would be the many positive incentives built into the current system.   The FAR now permits debarring officials to consider a host of potentially mitigating factors.  They may, for example, ask whether the contractor had effective standards of conduct, whether it brought the problem to the government’s attention, whether it cooperated with any investigation, whether it paid any fines it was assessed, and whether it took appropriate disciplinary action against the individuals responsible for the problem.  Collectively, these mitigating factors provide a powerful incentive for government contractors to implement pro-active programs to ensure their compliance with all legal requirements.   If Section 249 or similar measures became law, these incentives would disappear, at least insofar as they pertain to the employment provisions of the Immigration and Nationality Act.

Please support good government, and oppose any further efforts to inject debarment standards or procedures into the debate over immigration reform.

Sincerely,

Stephen E. Sandherr
Chief Executive Officer