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| What tool would you choose? |
There is an old cliché that says “If you have a hammer, everything is a nail.” That’s the view many take of how the government should apply the tools of suspension and debarment, which reentered the news Feb. 28 when the Wartime Contracting Commission held a hearing to discuss how the government applies these tools to protect its interests.
Unfortunately, some witnesses, and some members of Congress, appear to favor the use of suspension and debarment as blunt instruments to be used whenever a company or, presumably, an employee of a company, is indicted for any offense related to their work for the government. To them, the fact that someone is alleged to have violated the law is reason enough to bar them from future government work.
“Where’s the accountability?” they asked.
However, as administration witnesses pointed out, while that may seem logical, it is a wholly inaccurate reading of the purpose of suspension and debarment. Hence, I would ask a different question: “Did the companies take actions to prove they’re ‘presently responsible,’ correcting the problems that led to the wrongdoing?” Isn’t that what really matters?
As Joseph Billings and Nathanael Hartland, attorneys from Miles & Stockbridge explain in the latest edition of PSC's Service Contractor magazine (out this week), suspension and debarment are the equivalent of a death sentence for government contractors. If they were applied to firms without first considering whether the firms in question are “presently responsible,” the results could be dire.
They write:
“Vocal portions of the public do not understand the purpose of suspension and debarment; harbor the unrealistic assumption that contractors and grantees can prevent virtually all mistakes and wrongdoing, even in vast government programs; and seem to think all contractors and grant recipients suspected of wrongdoing need to be suspended or debarred either as a form of punishment or as a deterrent to others. While some ‘bad actor’ contractors clearly need the axe, using severe measures like suspension and debarment for all offenses has the potential to create a government contracting ‘reign of terror’ where any contractor or grantee that does anything wrong is immediately put out of business, regardless of whether the company makes things right and regardless of how many innocent employees lose their jobs. When government action might put companies out of business (and their employees out of jobs), we owe them not only the right to be heard, but careful consideration of whether the severe measures of suspension and debarment are truly necessary—or are being used unjustifiably as an additional punishment for perceived or actual wrongdoing.”
Thus the Federal Acquisition Regulation explicitly prohibits suspension and debarment as punishment for companies that prove they are “presently responsible.” What does presently responsible mean? Stan Soloway summed it up best in a statement in response to the hearing on Feb. 28:
“The fact that an incident, even a significant one, has occurred is not in and of itself cause for suspension or debarment. Equally important are the steps a company takes to correct and compensate for mistakes, and prevent against future, similar occurrences. That is key to determining ‘present responsibility.’”
In short: when it comes to protecting its interests, the government should use the right tool for the right job. Each case merits its own analysis and assessment, not to mention due process. Blunt instruments, particularly those used in the wrong place, typically don’t work very well.
