This is Part II of a three-part series on the SUSPEND Act. Part I is available here.
As we discussed in Part I, the SUSPEND Act mandates repealing all civilian agencies’ suspension and debarment (S/D) authority, and replacing the independent programs with a single Board of Civilian Suspension and Debarment.
The proposal to withdraw authority from civilian S/D programs is a reaction to the perceived inadequacies of some agency programs. For example, recent reports have noted that some agencies’ S/D programs underperform and lack uniformity—providing inadequate due process protections for individuals and companies, and leaving taxpayer dollars vulnerable to non-responsible contractors.
The proposed Board’s ability to address these perceived deficiencies will depend entirely upon the actual structure and procedures recommended to Congress. Practical questions remain about the impact that consolidation will have on due process and agencies’ roles.
At the broadest level, the proposal to consolidate the civilian S/D programs raises questions regarding the underlying policy goals of this draft legislation. If a goal of the SUSPEND Act is to increase S/D efficiency, it is surprising that Rep. Issa believes that a quasi-judicial board will achieve this goal. Not only would the Board be required to review a large volume of diverse actions, a more formalized process would undoubtedly cause delays that would significantly decrease efficiency.
Moreover, establishing a consolidated Board to process S/D actions eliminates the discretion of agency SDOs to determine the best course of action for their agencies. The current system affords SDOs the opportunity to craft tailored solutions that enhance contractor compliance and improve corporate governance.
If agency discretion is removed, the S/D regime will likely be transformed into a numbers game—designed to increase the number of S/D actions without regard to the government’s best interests. This focus on S/D statistics rather than comprehensive fraud remedies programs, threatens to transform the S/D system into a tool of punishment.
As discussed in numerous posts on this blog, the S/D regime is designed to protect the government from contracting with non-responsible contractors—not to punish contractors for their past misconduct.
Proposed by an anti-contractor Congress that views the government’s business partners as “fraudsters, criminals, or tax cheats,” the proposed Board is likely to transform a protective business decision into a costly, inefficient and punitive regime.
The consolidation of civilian S/D programs will also impact the agency referral procedures designed to identify and refer instances of contractor misconduct to agency S/D officials (SDOs). Transferring S/D authority from SDOs to an external Board raises obvious concerns regarding the future of the agency referral process. If some agencies are already having trouble referring matters internally, a process that requires referrals to an external Board is likely to exacerbate the issue rather than improve it. Moreover, agencies may be less motivated to refer certain cases to a Board with different interests and goals.
Up next: The SUSPEND Act Part III: Scalpel, not Sledgehammer
Jessica Tillipman is a Senior Editor of the FCPA Blog and an Assistant Dean at The George Washington University Law School.
Lauren Youngman is a third year student at GW Law School and a Legal Assistant at DHS-ICE’s Suspension and Debarment Division. Lauren will be graduating in May and is interested in employment opportunities in FCPA/regulatory compliance, international commercial law, or procurement law. The opinions expressed herein are solely those of the author in her individual capacity, and do not necessarily represent the views of Immigration and Customs Enforcement, the Department of Homeland Security, or the United States government.” She can be contacted at [email protected].