Chairman Issa’s SUSPEND Act: Pros and Cons

Earlier this month, the George Washington University School of Law and TechAmerica (an IT and communications industry association) sponsored a program entitled “The SUSPEND Act: Improving the Suspension and Debarment System?” To a packed house of government officials, contractors, and a few of us from the non-governmental organization and watchdog community, the panel members voiced divergent opinions about the Act, which Chairman Darrell Issa (R-Calif.) released in February as a draft bill.

The “Stop Unworthy Spending Act” (SUSPEND Act) promises to strengthen the suspension and debarment system, add transparency, and provide consistency by consolidating 41 civilian agency suspension and debarment offices into the Board of Civilian Suspension and Debarment (BCSD).

The meeting started with a summary of the SUSPEND Act and the political and policy reasons for it. Despite improvements to the system, including an uptick in suspensions and debarments, increased training and oversight by the Interagency Suspension and Debarment Committee (ISDC), and comprehensive Office of Management and Budget guidance, some members of Congress still think the system is broken. In fact, there have been multiple congressional attempts to impose mandatory suspension and debarment on contractors that commit wrongdoing. Those initiatives are often prompted by media reports detailing contract fraud, bribery, or illegal behavior and the subsequent award of new federal contracts to those same companies.

Government officials and industry representatives discussed the pros and cons of the draft bill. The pros include improving capacity and capability of suspension and debarment offices by consolidating those functions into the BCSD, adding fairness and due process which is often lacking when 41 agency offices act independently, centralizing resources, and establishing a full-time suspension and debarment staff (currently, civilian agencies have approximately 80 full-time and 149 part-time employees). Some of the cons include the Office of Management and Budget having unchecked authority to create this new system, decreased agency discretion and flexibility to protect buying agencies and the public, a disconnect from the Defense Department which will not fall under the jurisdiction of the BCSD, and increased transparency being used as a de facto suspension or debarment against companies that were never excluded.

POGO originally took a neutral position on the bill. We later testified about the draft bill before the House Committee on Oversight and Government Reform and supported it, but we would like to see mandatory referrals by the investigative community to suspension and debarment officials, the public release of suspension or debarment determinations within a specified period of time, and improved data about the use of the system from suspension and debarment offices and the ISDC.

The draft bill received bi-partisan support from Committee members who were very vocal about holding contractors accountable. The draft bill is good, but without mandates on referrals and determinations, we will be stuck in the same position we are in today—waiting for criminal and civil actions to conclude before we protect taxpayers from non-responsible contractors. We will have to wait to see if the draft bill actually becomes “a bill, yes only a bill, sitting [there] on Capitol Hill.”