You applied for a great government contracting gig and managed to get the job. Maybe it means a pay raise or getting your foot in the door at an agency you’ve always aspired to call your employer. Now comes the fun part: filling out your umpteenth SF-86 or SF-85 form.
You may have a few issues in your background, but you are confident that they can be mitigated during a security or suitability review. Perhaps you already hold a security clearance with another agency. This isn’t your first rodeo.
Then one day you receive a letter from Human Resources. Instead of your start date, the letter simply says this:
Dear Applicant,
Thank you for your interest in working on a contract with Agency X. Unfortunately, a review of your background investigation forms has resulted in a determination that you are unsuitable for employment on the contract. This decision is final and there is no right to appeal.”
Sincerely,
Personnel Security Specialist
“What?! How is this possible? Can they do that?” you ask. Unfortunately, the answer is most likely yes.
Security vs. Suitability
As you may know, applicants are typically denied a contract with the federal government on one of two grounds: security or suitability. In the case of a security clearance denial, an applicant has clearly established procedural protections that afford him or her the right to challenge that decision before an impartial adjudicator or judge. Most suitability denials similarly offer appeal rights, albeit only in writing and only in accordance with the particular agency’s regulations.*
But some agencies are getting rather sly at dispensing with candidates who would otherwise be afforded a security or suitability appeal. They do that by leveraging a little known nuance in the law: that federal agencies have effectively carte blanche authority to decide who should or should not be working on a particular contract. In other words, if the contract denial has the effect of barring an applicant from an entire class of contracts or from practicing his or her profession, the agency must afford the applicant reasonable due process to fight the decision. But if the agency’s decision is only to bar the applicant from a contract, chances are good that they can do it and get away with the decision. (See, for example, Kartseva v. Department of State, 308 U.S.App.D.C. 397). Never mind the fact that you’re out of a job either way.
If at first you don’t succeed…(apply, apply again)
If you’ve gotten blindsided with one of these “we don’t like you, go away” letters, you’re not alone. We are seeing them pop-up with increasing regularity these days as the contracting world expands and agency security offices struggle to keep-up with the requirements imposed by the security and suitability denial processes. Unfortunately, we are also seeing some unscrupulous (or uninformed) lawyers accept fees to “fight” a denial that isn’t appealable. That gives all of us in the legal profession a bad name.
On the bright side, a single contract debarment does not preclude you from applying for other contracts – even with the same agency – nor does it need to be listed on future SF-86’s like a security clearance denial.
*Federal courts have found that a mere non-hiring of an applicant based on suitability grounds is not a suitability denial. Regardless, many agencies have extended suitability appeal protections to applicants based upon a recognition that the alternative provides a single, anonymous government employee with far too much power. Other agencies provide no such protections.
This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation.
