The debate on contractor responsibility flares anew

Congress appears poised torevisit the question of whether the federalgovernment has adequate standardsto ensure it only does businesswith responsible parties. This discussionis largely based on a perfectly reasonablequestion: How do we ensurethat the government does not awardcontracts to companies with a provenhistory of disdain for the law?Unfortunately, the processes mostoften proposed to ensure that outcome? particularly the rebirth of theso-called contractor responsibility, orblacklisting, rules issued in 2000 ?leave much to be desired. Those ruleswere rushed into place in the closingdays of the Clinton administrationand promptly repealed by the Bushadministration. Rep. Henry Waxman(D-Calif.) has revived them in the2006 Clean Contracting Act.The Project on GovernmentOversight, a primary proponent of thelaw, reports on its Web site nearly 650cases of what it calls federal contractormisconduct. Presumably, its viewis that those findings are an indicationof a widespread problem. But doesthat list really tell us what we need toknow? Fully one-third of the casescited were settled with no admissionof guilt. Under our system of law, suchsettlements are neutral; the project,however, seems to nonetheless assumemalfeasance. More important, however,the project's Web site and the proposedlegislation raise a more fundamentalquestion: How do we determinewho should be excluded fromgovernment work, and who makesthat decision?All federal contractors must certifythat they are not currently suspendedor debarred from federal contracts.Government contracting officershave the important task of assessingwhether an offerer is a responsiblebusiness.It is a process that works quitewell, insofar as a company's behavioror history relates to the work it isproposing to perform for the government.Proponents of the blacklistinglegislation go further.Their goal is to directly conditionqualifications for governmentwork on corporate andeven individual compliancewith all laws and regulations.On the surface, theapproach makes sense. Afterall, no one advocates theaward of government contracts toproven crooks. But in reality, it's farfrom a simple matter.The approach raises a host of questions:What is the bright-line test?When is a pattern of abuse (the termused in proposed legislation) sufficientto merit suspension? How do weensure the due-process protectionsgranted under our laws? What violationsare significant enough to meritsuspension or debarment? Do minorfines belong in the same category asmajor felonies? To what extent and inwhat circumstances is it fair to layerthe denial of government contracts ontop of other restitution or penaltiesalready paid or served? What happenswhen an individual with a past felonycurrently owns and manages a legitimatebusiness in full compliance withthe law? Should such a person andbusiness be permanently punished?How do we treat administrative findingsthat are under judicial review?Finally, who really has the full rangeof detailed information, legal expertiseand authority to make such complexdecisions? To expect a GS-9 orGS-11 contracting officer in the fieldto fulfill that role is completely unfairand impractical. Yet that is preciselywhere some people would put theburden.No one wants to see his or her taxdollars go to companies or individualsthat routinely and blithely violate thelaw. For the most part, the existingsystem prevents that from happening.Nonetheless, it is always appropriateto strive for improvement. But solutionssuch as the proposed contractorresponsibility law involve difficult,complex and often troubling issues. Inshort, while the discussion is whollyappropriate, overly simplistic statutoryor regulatory language that ignoresthe policy, implementation, dueprocess and other dimensionsinvolved, is the wrong way to start.