Forbes published an article entitled “Is BP Too Big to Punish” on August 31, 2014 with a simple thesis — BP hasn’t been punished and isn’t paying enough for the Deepwater Horizon blowout. The article also covers debarment — as punishment of course, never mind that isn’t the intent of debarment — and wonders briefly why large companies are not ever debarred. The legal and factual basis for these points are never established in the article.
This is yet another example of debarment-related opinion pieces without proper foundation that push regulators and auditors to become over-aggressive with debarment. Suspension and debarment is NOT the end-all, be-all policing mechanism for grantees and contractors. It’s a last resort if no other behavior modification is possible. Yet, articles like these have significant effects including causing career staff in the Executive Branch to be called to the Hill, and have a cumulative effect of more debarments with less of a nexus to proper, debarment-worthy misconduct.
When in the government in a debarment-related role I often advocated for my colleagues to write more about remedies, including debarment, to place debarment in its proper context to counter this push for ever-more exclusions. And I wrote my fair share of articles. Now that I’m in private practice I hope the article-writing continues from government-side authors with the proper perspective as a counterbalance to these periodic alarmist debarment-as-punishment pieces. Otherwise debarment is likely to become something it is not intended to be — an instrument of punishment.