The SUSPEND Act Part I: ‘Fraudsters, Criminals, or Tax Cheats’

In recent years, suspension and debarment (S/D) programs in some federal agencies have been under pressure from the Executive Branch and Congress to increase their actions (see here, here and here).

Unsatisfied with the agencies’ response to that pressure, on February 5, 2013, Rep. Issa released a Discussion Draft Bill that intends to overhaul the civilian S/D regime.  

The “Stop Unworthy Spending (SUSPEND) Act” proposes to consolidate the S/D programs of more than 41 civilian agencies into one centralized review board, called the “Board of Civilian Suspension and Debarment.” Non-civilian agencies, such as the Department of Defense (DoD), are excluded from the draft legislation.

This proposal takes a sledgehammer to the existing regime by consolidating the S/D programs of more than 40 independent civilian agencies. Officially, the draft bill purports to improve S/D processes with increased transparency and efficiency, effective oversight, consistent treatment of individuals and companies subject to review, and the promotion of active engagement with contracting officials.  

On Rep. Issa’s website, however, he makes clear that the draft bill is designed to ensure “zero tolerance for fraudsters, criminals, or tax cheats receiving taxpayer money through grants or contracts.”

The proposed Board would consist of members appointed by the Administrator of General Services, who would review actions in a quasi-judicial capacity. In addition to reviewing actions, the Board would issue annual reports to Congress summarizing its activities and recommending improvements to the system.

The proposed Act does not outline the Board’s structure or procedures in any detail. Rather, it mandates the establishment of a bureaucratic coalition charged with issuing detailed guidance addressing the scope and operation of the Board to Congress. 

The guidance would first include recommendations for the size, structure, and organization of the Board, and procedures for appointment of the Chair. The guidance would also detail procedures for managing new and existing S/D cases. The procedural recommendations to ensure transparent handling of all cases would include maintaining public availability of the status and outcome of all cases, as well as administrative agreements to resolve proceedings. 

Second, the guidance must also include recommendations regarding procedures designed to ensure timely referrals, consistent standards, an expedited review process for non-traditional cases, and the clear assignment of accountability. Lastly, the guidance must address procedures to maintain agency participation and strengthen referral programs.

Rep. Issa’s proposal to create a brand new civilian S/D regime raises a number of concerns that we will address in our next post: Part II: The SUSPEND Act—Panacea or Problem? 

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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].