By Charles S. Clark
November 16, 2011Procedures for disqualifying dishonest or incompetent federal contractors are too rarely exploited, according to a consensus of several senators, the White House and cross-agency watchdogs. But there is disagreement over whether the solution is improving application of the rules or whether Congress should make some suspensions and debarments mandatory.
At a Wednesday hearing of the Senate Homeland Security and Governmental Affairs Committee, Chairman Joe Lieberman, I-Conn., expressed alarm that a series of reports from the Government Accountability Office and inspectors general have shown a reluctance of many agencies to refer unsatisfactory contractors to the Excluded Parties List System maintained by the General Services Administration.
A Pentagon report "just last month shows that over a 10-year period, DoD awarded $255 million to contractors who were convicted of criminal fraud; and almost $574 billion to contractors involved in civil fraud cases that resulted in a settlement or judgment against the contractor," Lieberman said. "Last year, the Department of Homeland Security's inspector general found 23 cases where the department had canceled a contract because of poor performance, but in none of those cases did DHS suspend or debar the contractor."
The Federal Emergency Management Agency, despite the existence of an anti-fraud task force following Hurricane Katrina in 2005, has not sent a single name to the list, Lieberman added, noting that the rarity of suspensions and debarments has been a concern of the committee as far back as 1981.
Sen. Claire McCaskill, D-Mo., said she got angry about the issue when a U.S. soldier was killed in Iraq by a negligent truck driver working for a U.S. contractor. The U.S. military continued using the contractor. "It's a matter of character for our nation," said McCaskill, who is preparing related legislation to implement recommendations of the recently disbanded Commission on Wartime Contracting.
She regretted that proposals to require more suspensions and debarments founder because of a fear of litigation, because it's "too much trouble," some contractors are seen as "too big to fail," or "it is unclear who is accountable for a failure" to pursue that course, she said. "We need to draw a line in the sand."
Dan Gordon, the departing administrator of the Office of Federal Procurement Policy, said the Obama administration had made significant progress on the issue over the past three years, but the system's "weak link" is ensuring that a fraudulent contractor is flagged for action in a timely way. "Sometimes the referral takes too long, as historically agencies have been very bad about sharing, either because officials didn't check the list, checked it too late, or because of problems in the spelling of an entity's name," he said.
He pointed to a memo to agencies released Tuesday by Office of Management and Budget Director Jack Lew that requires agencies to appoint a senior accountable official to "assess the agency's suspension and debarment program -- including the adequacy of available training and resources -- review internal policies and procedures," ensure databases are checked before grants and contracts are awarded, and "take corrective action if an award is improperly made to a suspended or debarred contractor."
Gordon said OMB has been working with its Interagency Suspension and Debarment Committee to improve training and create detailed agency guidance. But he expressed skepticism toward any prospective legislation making certain referrals mandatory, saying agency cultures differ and mandatory referrals that take away discretion could undermine the role of suspension and debarment officials.
Allison Lerner, the inspector general of the National Science Foundation who co-chairs an IG working group on the issue, said suspensions and debarments "could be used more frequently and effectively." The resistance comes from misconceptions among agency contracting officials, she said. Some fear jeopardizing investigations by disclosing negative information on contractors and some hold the incorrect beliefs that a decision must be based only on facts uncovered in a judicial process and that IG investigations cannot be cited as evidence against contractors.
Panelists agreed that the model policy is that practiced by the Air Force. Steven Shaw, deputy general counsel for contractor responsibility at the Air Force described two recent suspensions, one involving the Boeing Co.'s launch systems units and the other involving programs within L-3 Communications. Sixty-two percent of his suspensions and debarments are "fact-based," he said, meaning his team doesn't wait for the Justice Department to bring criminal charges. "We take a broad view of the type of misconduct, not just criminal fraud but as it relates to business integrity, tax issues, the Foreign Corrupt Practices Act or commercial fraud," he said.
The Air Force also uses a "carrot-and-stick approach that is aggressive at the front end" but still allows contractors to prevent fraud through risk management and ethics programs.
Ranking committee member Sen. Susan Collins, R-Maine, who as a staff director worked on the 1981 hearing chaired by then-Sen. William Cohen, R-Maine, reminded the hearing that the goal of suspension and debarment is "not to punish contractors but to protect" the taxpayer, and that allowing "bad actors" to win new contracts is "not fair or ethical to the honest contractors." She said she is considering legislation that would force agencies -- she mentioned the Justice Department -- to step up use of the tool.
Such a move is opposed by Alan Chvotkin, executive vice president and counsel of the Professional Services Council, a contractors trade group. He praised this week's OMB memo as good "cross-agency coordination to bring attention" to the appropriate use of suspension and debarment. But he stressed the "very limited circumstances" under which "automatic exclusion" should be applied to a contractor.
"The government has wide flexibility to assess each individual situation to determine whether the government is at risk, including built-in due process procedures," he said. "Doing it in an arbitrary way would be a mistake and convert it into a punishment, which it is not."
By Charles S. Clark
November 16, 2011