Although not conveyed in those exact words, that sentiment was expressed at several points by Chairman McCaskill during a hearing on April 17 before the Senate Ad Hoc Subcommittee on Contracting Oversight of the Homeland Security and Governmental Affairs Committee on The Comprehensive Contingency Contracting Reform Act of 2012 (S. 2139). Why? Because the Air Force suspends and debars more contractors than other agencies. And it is clear that legislators want to force other agencies to produce suspension and debarment numbers similar to the Air Force. How best to go about spurring suspension and debarment activity is currently being debated between the legislative and executive branches. Unfortunately, this debate places companies doing business with the government in the unenviable position between Congress, which is trying to legislatively broaden the scope of suspension and debarment, and the Executive branch, which is trying to demonstrate such legislation is not necessary by increasing the number of suspension and debarments.
As my colleague Alexina Jackson previously reported (3/15/12), Congress’ most recent attempt to stimulate suspension and debarment activity is Section 113 of S. 2139, which would usurp an agency’s discretion to suspend a contractor only after it affirmatively determines such action is necessary, and instead establish certain mandatory suspension provisions. If enacted, any federal government allegation of fraud against a contractor in a civil or criminal proceeding related to any federal contract would trigger a statutory suspension. This exclusion would apply to any contractor, not just those involved in contingency operations, expanding upon recent statutory initiatives that prohibit the use of certain appropriated funds for companies that have been criminally convicted.
Chairman McCaskill stated during the hearing that this provision was “trying to encourage aggressiveness” and overcome the “cultural pre-disposition to not suspend or debar” found at agencies other than the Air Force. Chairman McCaskill stated her view was that there should be a presumption of exclusion if charges are alleged against a contractor, and, only after a formal consideration of the circumstances should the contractor be permitted to continue competing for federal contracts.
While all of the agencies testifying before the subcommittee—Defense, State and USAID—seemed to agree that the government should increase its number of suspensions and debarments, they all oppose the bill’s automatic exclusion provision as the best means to achieve that goal. In his written testimony, Mr. Ginman, Director, Defense Procurement and Acquisition Policy, stated “DoD opposes mandating automatic suspension because for the suspension and debarment process to have legitimacy and credibility, SDOs need independence, freedom of action, and discretion to exercise judgment regarding whether an exclusion is appropriate.” Both the State Department and USAID pointed to their increasing numbers of suspensions and debarments in recent years to support their position that legislative action is not required. Interestingly, both DoD and State expressed concern that an automatic exclusion denies contractors’ due process, which they anticipate leading to increased litigation, thereby threatening to eviscerate the efficiencies built into the current system.
It is a long, long journey for a bill to become a law, so it is too early in the process to know what, if anything, will ultimately be enacted. Unquestionably, protecting tax dollars from unscrupulous contractors is a laudable goal that the government should pursue. How best to pursue that goal, however, is currently the subject of reasonable debate. How these differences are ultimately resolved is secondary. For now, what companies doing business with the government need to understand is that the discussion is on-going and the raw number of suspensions and debarments appears to be the only metric being evaluated. Either through legislation or increased enforcement, there is going to be increased suspension and debarment activity for the foreseeable future and the current “more-is-better” climate easily can impact good and ethical companies, requiring extra on-going vigilance.