Solving Clients’ Problems

Example: Proposed debarment of a cooperating witness

The Problem:

The Department of Transportation proposed debarring a prominent contractor, whose large construction firm had a solid reputation for quality, on-time work on road construction projects in his state, after he testified in a corruption trial.

A corrupt administration had come into power, and a key ally of the governor demanded the contractor pay a kickback in order to continue working on state projects. Fearing that his business and employees would be irreparably harmed, the contractor reluctantly paid the money.

The U.S. Attorney launched a corruption investigation, and the contractor cooperated, testifying at the trial of the governor's ally that he had paid the kickbacks demanded. The governor's friend was convicted.

Citing the contractor's admission to paying “kickbacks,” the federal Department of Transportation official located in the state recommended that the contractor be debarred from participation in federally-funded contracts. (A debarment such as this is effective across all federal agencies, not just the one bringing the action.) The Department of Transportation suspended the contractor and provided an opportunity for him to respond to the allegations.

The Solution:

In the debarment hearing, Ben Vernia argued persuasively that the question before the official was the contractor's present responsibility, and that the contractor's payments did not raise doubts about his character when they were properly understood as a response to extortionate demands.

Although the debarment official was clearly troubled by the contractor's payments, this argument permitted him to see the contractor as a victim of the crime, and not a co-conspirator. The official lifted the suspension and ruled against debarring the contractor.