Will Congress Fix How Contractors Are Held Accountable?

Last Monday, House Committee on Oversight and Government Reform Chairman Darrell Issa (R-CA) and Ranking Member Elijah Cummings (D-MD) and a bipartisan group of co-sponsors proposed the Stop UnworthySpending Act of 2013 (SUSPEND Act). The bill would create the Board of Suspension and Debarment (Board), providing a centralized body to manage the suspension and debarment system. The proposed consolidation of suspension and debarment functions would add transparency as well as consistent and fair treatment.

The current system is delivering mixed results. The SUSPEND Act could be a huge leap toward ensuring that federal taxpayer dollars are awarded to responsible contractors and grantees. This leap is a long time coming. POGO has advocated for improved contractor accountability reforms since 2002.

The proposed bill provides the Board with authority over federal agency suspension and debarment activities, including those of the Defense Department. Current agency suspension and debarment offices would cease operations, but a waiver provision would allow offices that meet certain requirements to continue operating. Some, however, are wondering if this waiver is too broad and would thereby weaken the Board and the consolidation that is intended.

POGO would prefer a few additional reporting requirements to obtain better data about the cost and use of the system. Additionally, we question the provision in the bill that will make the Administrator of the Office of Federal Procurement (OFPP) the chair of the Interagency Suspension and Debarment Committee (ISDC), which monitors the suspension and debarment system and annually reports to Congress on the progress, activities, and accomplishments of the system. The ISDC also makes decisions about what agency, if more than one agency is involved with a contractor or grantee, takes the lead in a suspension or debarment proceeding. Currently, the ISDC is chaired by a member of the suspension and debarment community, and maybe it is time to create an official ISDC chairmanship rather than adding to OFPP’s workload.

The current bill includes a few contractor and grantee protections, such as increased due process protections and making pre-decisional information off-limits to the public. But we are pleased that it also includes some of POGO’s recommendations.

When I testified about the suspension and debarment system in June, I emphasized speeding up the process so that referrals don’t take years to reach the appropriate suspension and debarment office and get resolved. My recommendation was heard as the bill includes a provision requiring the “timely referral of cases.” Additionally, an amendment proposed by Representatives Jason Chaffetz (R-UT), Jackie Speier (D-CA), and John Tierney (D-MA), passed by voice vote, will also require that the Board act on cases in a “timely manner.” The amended bill states that cases shall “be disposed of within 6 months after the initial referral date, unless the Chair of the Board…provides a written explanation and estimated timeline” to the agency officials and the Inspector General. This should prevent cases like that of BP’s suspension after the Gulf oil spill, which took years to resolve, and prevent problems with the suspension being announced after the company pleaded guilty to federal charges. Waiting until after a case working its way through the courts makes it appear punitive, despite express language that such actions should be made “only in the public interest for the Government’s protection and not for purposes of punishment.”

Despite a few outstanding questions, POGO supports the SUSPEND Act and hopes to continue working with the Committee to make improvements before the bill is voted upon by the full House. This legislation could go a long way to better protect the more than $1 trillion in taxpayer money awarded in contracts and grants each year.

POGO appreciates Chairman Issa’s open approach throughout this process—from circulating a discussion draft to holding public meetings. It’s too bad that all legislation isn’t likewise open for participation by all Members of Congress, government experts, the public, and industry stakeholders.