Access to contractor misconduct database restricted in Senate bill

A bill mandating the creation of a federal contractor misconduct database is one step closer to becoming law, but a lack of support in the Senate has forced Sen. Claire McCaskill, D-Mo., its primary sponsor, to limit access only to government officials.

Last month, the House passed a database bill, sponsored by Rep. Carolyn Maloney, D-N.Y., with no such restrictions.

A McCaskill aide, speaking on background, confirmed that senators on the Armed Services and Homeland Security and Governmental Affairs committees -- both in the majority and minority -- would not support the bill if the database were open to the general public. A stand-alone McCaskill bill, mirroring the House legislation, has stalled in Homeland Security and Governmental Affairs panel.

"There was a very plain reality that the House-passed legislation was not going to pass the Senate in the form that it was in," the aide said. "So we set out to find what we could pass."

After extensive discussions with her staff, McCaskill last month introduced an amendment to the fiscal 2009 defense authorization bill (S. 3001, Section 831) that would create an internal government database to track completed criminal, civil or administrative proceedings against federal contractors.

The defense bill amendment requires contracting officials to consult the database only when awarding contracts of $500,000 or more. The House bill did not set any limits. The Senate provision also adds settlement agreements to types of information that would be included in the database and provides the administration with one year, rather than six months, to create the tool.

To make the bill jurisdictionally applicable, the McCaskill amendment limits the database to Defense contacts. The senator plans to introduce an amendment on the Senate floor at the time of a full chamber vote to expand the database governmentwide, her aide said.

"The fundamental purpose of this legislation is to empower suspension and debarment officials and contracting officers in making better decisions on how to spend government money," the aide explained. "The intent of the database is not to be a one-stop shop for embarrassing contractors for their negative actions."

Concern with a public database was twofold, multiple sources told Government Executive.

Most daunting were the administrative challenges associated with creating and maintaining the database.

While much of the information that would be included -- such as criminal and civil proceedings, federal suspensions, and debarments -- is accessible in scattered locations on the Web, other information, such as settlement agreements and responsibility determinations, is not public. To create a public database, two separate applications would have to be created: one for the government and another, less inclusive one, for the public.

"In order to say systematically that you are going to make it all available, you are going to have to go through the database on a constant basis and separate out which information is available and what isn't," said a Senate aide familiar with internal negotiations about the bill. "It would be like making a permanent [Freedom of Information Act] request."

The less obvious problem is that with a public database, the citizenry would have access only to a limited amount of information that contracting officers use to make acquisition decisions. Members of the public would be making a determination -- and second-guessing contracting officials -- based solely on the information available in the database, the McCaskill aide said.

"Our fear is that as that Monday morning quarterbacking happens, the contracting officer will say, 'to hell with this. I am not going to get beat up over this. I am just not going to award the contract to these folks,' " the aide said. "Which essentially gives the negative information undue weight in the system."

Despite the detailed explanations, McCaskill's decision to close the database to the public has not gone over well with open government advocates. On Monday, 33 government watchdog groups sent a letter to House and Senate officials urging that the database cover all agencies and be open to the public.

"There's a lot of benefit to this bill as currently drafted," said Scott Amey, general counsel of the Project on Government Oversight, a watchdog group that maintains its own public contractor misconduct database. "But it could still go a lot further in providing the public with greater access."

The McCaskill amendment is just the latest significant rewrite of the database legislation, which has quickly emerged as one of the most controversial contractor oversight bills of this year's Democratic Congress.

The House bill (H.R. 3033), immediately ran afoul of Rep. Tom Davis, R-Va., the ranking member of the House Oversight and Government Reform Committee.

Davis argued adamantly against a "two strikes and you're out" provision that would have directed federal officials to start suspension or debarment proceedings against firms with two judgments or convictions for the same offense during any three-year period. He said the provision could have blackballed companies such as Boeing Co. from receiving future government work.

When Maloney agreed to scrap the provision, Davis backed away from his opposition and the bill passed by voice vote. The revised bill directs federal procurement officers to document why they awarded a contract to a company with two or more debarment-worthy offenses on its record, but it does not require administrative punishment.

"We are working in both the House and Senate to ensure the final law is as comprehensive as possible," Maloney said.

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