Fine line between transparency and chaos

Buylines | Policies, strategies and trends to watch

Transparency is essential to building credibility when
dealing with public funds and the public trust, and
numerous proposals now before Congress seek to enhance
transparency in government contracting. Their essential
goal is laudable even though some of these proposals are driven by
a misperception that fraud is rampant in federal contracting ? a
perception even the special inspector general for Iraq reconstruction
has repeatedly challenged.

Unfortunately, the proposals now before
Congress will not achieve the goal of transparency.
Instead, they threaten to overload the
system with irrelevant and often misleading
information and place untenable burdens on
government contracting officers. They would
also lay waste to more than a few basic tenets
of our system of laws, including due process.
In the end, the likely result would be chaos,
not transparency.

Separate legislation proposed by Rep.
Carolyn Maloney (D-N.Y.) and Sen. Claire
McCaskill (D-Mo.) is intended to ensure that
scofflaws do not receive federal contracts. No
one can argue with that. Both bills would
require the creation of a publicly searchable
database for government contracting officers
to use in making contractor responsibility
determinations. The database would contain
an extraordinary range of information ? not
only convictions and findings of guilt in
administrative cases but every administrative,
civil or other settlement that resulted in no
findings or in which a "finding of guilt might
have otherwise resulted." This is a standard
that strains credulity.

In addition to blithely ignoring fundamental
premises of law ? not the least of which is the
presumption of innocence ? the proposed
database would include information on routine
matters that technically equate to administrative
settlements. These actions are often
disputes of a routine nature, and their disclosure
adds little value to a database designed to
expose supposed misconduct. The legislation
also provides no metric to indicate the comparative
severity of disclosed actions or mitigative
steps that have already been taken to prevent
their recurrence.

This lack of context will breed confusion
and likely result in the presumption that all
such cases represent probable or proven misconduct
of a serious nature. While ignoring the
bedrock principle of innocent until proven
guilty, the databases would leave it to beleaguered
contracting officers to parse voluminous
amounts of data in an attempt to make
legally sound and fair judgments.

Meanwhile, Sens. Barack Obama (D.-Ill.),
Tom Coburn (R-Okla.) and John McCain (R-Ariz.)
have introduced a bill to dramatically
expand the information already posted to
USASpending.gov, which is intended to list all
federal grants and contracts. That new proposal
would require the inclusion of highly sensitive
and proprietary details, such as specific
contract cost elements and company
past performance reports available under
current law only to government officials.
The legislation also includes most of the
misconduct information covered under the
McCaskill and Maloney bills but does not
direct that the information be used in
source selection.

Transparency is a goal all taxpayers can
embrace, but the proposals being put forth
go well beyond the reasonable and fair.
They must be restructured
to reflect the basic
protections and tenets of
our system of laws and
include appropriate protection
of intellectual
property and proprietary
and other information,
including that which is protected from release
under the Freedom of Information Act.

In addition, much more thought must be
given to how the information will be collected,
assessed and used. Unless these prudent steps
are taken, chaos will almost certainly ensue ?
with little or no improvement to the federal
acquisition system or benefit to the taxpayer.

Stan Soloway (soloway@pscouncil.org) is
president and chief executive officer at the
Professional Services Council.

About the Author

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

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