The debate on contractor responsibility flares anew

Buylines | Policies, strategies and trends to watch

"Solutions such as the proposed contractor responsibility law involve difficult, complex and often troubling issues." Stan Soloway

Congress appears poised to
revisit the question of whether the federal
government has adequate standards
to ensure it only does business
with responsible parties. This discussion
is largely based on a perfectly reasonable
question: How do we ensure
that the government does not award
contracts to companies with a proven
history of disdain for the law?

Unfortunately, the processes most
often proposed to ensure that outcome
? particularly the rebirth of the
so-called contractor responsibility, or
blacklisting, rules issued in 2000 ?
leave much to be desired. Those rules
were rushed into place in the closing
days of the Clinton administration
and promptly repealed by the Bush
administration. Rep. Henry Waxman
(D-Calif.) has revived them in the
2006 Clean Contracting Act.

The Project on Government
Oversight, a primary proponent of the
law, reports on its Web site nearly 650
cases of what it calls federal contractor
misconduct. Presumably, its view
is that those findings are an indication
of a widespread problem. But does
that list really tell us what we need to
know? Fully one-third of the cases
cited were settled with no admission
of guilt. Under our system of law, such
settlements are neutral; the project,
however, seems to nonetheless assume
malfeasance. More important, however,
the project's Web site and the proposed
legislation raise a more fundamental
question: How do we determine
who should be excluded from
government work, and who makes
that decision?

All federal contractors must certify
that they are not currently suspended
or debarred from federal contracts.
Government contracting officers
have the important task of assessing
whether an offerer is a responsible
business.

It is a process that works quite
well, insofar as a company's behavior
or history relates to the work it is
proposing to perform for the government.
Proponents of the blacklisting
legislation go further.

Their goal is to directly condition
qualifications for government
work on corporate and
even individual compliance
with all laws and regulations.

On the surface, the
approach makes sense. After
all, no one advocates the
award of government contracts to
proven crooks. But in reality, it's far
from a simple matter.

The approach raises a host of questions:
What is the bright-line test?
When is a pattern of abuse (the term
used in proposed legislation) sufficient
to merit suspension? How do we
ensure the due-process protections
granted under our laws? What violations
are significant enough to merit
suspension or debarment? Do minor
fines belong in the same category as
major felonies? To what extent and in
what circumstances is it fair to layer
the denial of government contracts on
top of other restitution or penalties
already paid or served? What happens
when an individual with a past felony
currently owns and manages a legitimate
business in full compliance with
the law? Should such a person and
business be permanently punished?
How do we treat administrative findings
that are under judicial review?

Finally, who really has the full range
of detailed information, legal expertise
and authority to make such complex
decisions? To expect a GS-9 or
GS-11 contracting officer in the field
to fulfill that role is completely unfair
and impractical. Yet that is precisely
where some people would put the
burden.

No one wants to see his or her tax
dollars go to companies or individuals
that routinely and blithely violate the
law. For the most part, the existing
system prevents that from happening.
Nonetheless, it is always appropriate
to strive for improvement. But solutions
such as the proposed contractor
responsibility law involve difficult,
complex and often troubling issues. In
short, while the discussion is wholly
appropriate, overly simplistic statutory
or regulatory language that ignores
the policy, implementation, due
process and other dimensions
involved, is the wrong way to start.

Stan Soloway is president of the
Professional Services Council. He can be
reached at soloway@pscouncil.org.

About the Author

Stan Soloway is president and chief executive officer of the Professional Services Council.

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