In response to reports by the U.S. Government Accountability Office and Wartime Contracting Commission highlighting weaknesses in the suspension and debarment (S&D) offices of civil agencies, Congress has pushed for a significant overhaul of the suspension and debarment procedures applicable to federal contractors.
On October 29, 2013, a bill known as the Stop Unworthy Spending Act (“SUSPEND Act”) passed the U.S. House of Representatives’ Oversight Committee. Unlike many attempts by Congressional leaders to impose mandatory suspension and debarment on contractors that commit wrongdoings, the SUSPEND Act takes a different approach.
Currently, the suspension and debarment of government contractors is decided by the individual contracting agency’s S&D office. The SUSPEND Act would consolidate over forty smaller executive agency S&D offices into one, centralized “Board of Civilian Suspension and Debarment,” which would be overseen by the General Services Administration. Each agency would appoint a Remedy Coordination Official to serve as the primary point of contact between the agency and Board. The Board would be required to consider cases within thirty days of referral and render a final decision within six months of referral, unless the Chair of the Board provides a written explanation.
The SUSPEND Act would also create a new “Interagency Suspension and Debarment Committee” (ISDC). The ISDC would coordinate issues among the Board and those agencies that maintain their own suspension and debarment operations, designate a “lead agency” when multiple agencies have an interest, and provide an annual report to Congress.
The Office of Management and Budget (OMB) would be tasked with developing the regulations for suspension and debarment. In most cases, the regulations must provide for advance notice to a government contractor before any adverse action is taken. The regulation must also provide for increased transparency with the outcomes and resolution.
Proponents of the Act say that it will improve the consistency and transparency of governmental S&D programs. The shortened governmental response is a considerable improvement. Often times, government contractors who were unfairly suspended or proposed for debarment are often forced to wait months before the matter is resolved. Proponents also argue that the Board would be more equipped to handle the volume of S&D cases due to centralizing its resources and establishing additional full-time S&D staff.
Opponents of the Act criticize the bill as well-intentioned, but flawed. One serious concern is that, by consolidating different agency S&D offices, the Board members will lack the subject-matter specific knowledge that is important in making suspension and debarment decisions. In addition, the OMB’s unchecked authority to create this new system could result in an even more bureaucratic and complex system for government contractors to navigate. Opponents are also concerned that the increased transparency could be used as a de facto suspension or debarment against contractors that were never excluded.
Steve Gordon, Mondaq, New Legislation Would Revamp Suspension And Debarment, November 5, 2013.
Scott Amey, POGO Blog, Chairman Issa’s SUSPEND Act: Pros and Cons, July 25, 2013.
Michael H. Payne & Maria L. Panichelli, Federal Construction Contracting Blog, Amended Version of the SUSPEND Act Clears House Oversight Committee and Aims to Change Suspension and Debarment Procedures for Federal Contractors, October 30, 2013.