Fine line between transparency and chaos
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 essentialgoal is laudable even though some of these proposals are driven bya misperception that fraud is rampant in federal contracting ? aperception even the special inspector general for Iraq reconstructionhas repeatedly challenged.
Transparency is essential to building credibility whendealing with public funds and the public trust, andnumerous proposals now before Congress seek to enhancetransparency in government contracting. Their essentialgoal is laudable even though some of these proposals are driven bya misperception that fraud is rampant in federal contracting ? aperception even the special inspector general for Iraq reconstructionhas repeatedly challenged.Unfortunately, the proposals now beforeCongress will not achieve the goal of transparency.Instead, they threaten to overload thesystem with irrelevant and often misleadinginformation and place untenable burdens ongovernment contracting officers. They wouldalso lay waste to more than a few basic tenetsof 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. ClaireMcCaskill (D-Mo.) is intended to ensure thatscofflaws do not receive federal contracts. Noone can argue with that. Both bills wouldrequire the creation of a publicly searchabledatabase for government contracting officersto use in making contractor responsibilitydeterminations. The database would containan extraordinary range of information ? notonly convictions and findings of guilt inadministrative cases but every administrative,civil or other settlement that resulted in nofindings or in which a "finding of guilt mighthave otherwise resulted." This is a standardthat strains credulity.In addition to blithely ignoring fundamentalpremises of law ? not the least of which is thepresumption of innocence ? the proposeddatabase would include information on routinematters that technically equate to administrativesettlements. These actions are oftendisputes of a routine nature, and their disclosureadds little value to a database designed toexpose supposed misconduct. The legislationalso provides no metric to indicate the comparativeseverity of disclosed actions or mitigativesteps that have already been taken to preventtheir recurrence.This lack of context will breed confusionand likely result in the presumption that allsuch cases represent probable or proven misconductof a serious nature. While ignoring thebedrock principle of innocent until provenguilty, the databases would leave it to beleagueredcontracting officers to parse voluminousamounts of data in an attempt to makelegally sound and fair judgments.Meanwhile, Sens. Barack Obama (D.-Ill.),Tom Coburn (R-Okla.) and John McCain (R-Ariz.)have introduced a bill to dramaticallyexpand the information already posted toUSASpending.gov, which is intended to list allfederal grants and contracts. That new proposalwould require the inclusion of highly sensitiveand proprietary details, such as specificcontract cost elements and companypast performance reports available undercurrent law only to government officials.The legislation also includes most of themisconduct information covered under theMcCaskill and Maloney bills but does notdirect that the information be used insource selection.Transparency is a goal all taxpayers canembrace, but the proposals being put forthgo well beyond the reasonable and fair.They must be restructuredto reflect the basicprotections and tenets ofour system of laws andinclude appropriate protectionof intellectualproperty and proprietaryand other information,including that which is protected from releaseunder the Freedom of Information Act.In addition, much more thought must begiven to how the information will be collected,assessed and used. Unless these prudent stepsare taken, chaos will almost certainly ensue ?with little or no improvement to the federalacquisition system or benefit to the taxpayer.
Stan Soloway (soloway@pscouncil.org) is
president and chief executive officer at the
Professional Services Council.
Stan Soloway (soloway@pscouncil.org) is
president and chief executive officer at the
Professional Services Council.
NEXT STORY: Globalization arrives at a crossroads