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Thursday
Apr042013

The SUSPEND Act Part III: Scalpel, not Sledgehammer

This is Part III of a three-part series on the SUSPEND Act.  See Part I and Part II

While the federal suspension and debarment (S/D) regime can always be improved, the consolidation of all civilian agencies is neither an appropriate nor effective solution. 

The existing regime already provides agencies with sufficient S/D tools and many agencies have robust programs that ensure taxpayer dollars are adequately protected. While some agency programs need improvement, destroying the entire civilian regime (including some of the government’s most effective S/D programs) is not the answer.

As the Interagency Suspension and Debarment Committee (ISDC) noted in its most recent report to Congress, it has successfully implemented several government-wide and agency-specific initiatives to improve underperforming S/D programs. The ISDC has focused its attention on “helping agencies that either lack or have weak suspension and debarment programs and leveraging the experiences of agencies with well-established programs.” 

As a result of their efforts, all agencies now have an accountable S/D official, are participating or plan to participate in the lead agency process, and are taking steps to dedicate greater staff resources to handle referrals and manage cases. There is still work to be done, but the ISDC has demonstrated its ability to achieve significant system-wide improvement.

If Congress is determined to consolidate civilian S/D programs, it could consolidate on a smaller-scale by formally combining smaller S/D programs within each agency into one centralized office for the entire agency. Small-scale consolidation would maintain the structure of the current regime while addressing some of its shortcomings. Moreover, it would save the government from the considerable task of creating a review board from scratch, maintain a closer degree of control within the agencies, and eliminate weaker programs.

The SUSPEND Act, like many proposals before it, purports to rid the procurement system of “bad contractors” in a more efficient and effective manner than the current regime. Despite promises of consistent standards and due process protections, in this era of anti-contractor legislation and rhetoric, many members of the procurement community are rightfully concerned about the potential impact of this proposal.  

Rather than crafting risky and extreme proposals, Congress should focus on strengthening the role of the ISDC to continue improving existing S/D programs.

______________

Jessica Tillipman is a Senior Editor of the FCPA Blog and an Assistant Dean at The George Washington University Law School

Lauren Youngman is a third year student at GW Law School and a Legal Assistant at DHS-ICE's Suspension and Debarment Division. Lauren will be graduating in May and is interested in employment opportunities in FCPA/regulatory compliance, international commercial law, or procurement law. The opinions expressed herein are solely those of the author in her individual capacity, and do not necessarily represent the views of Immigration and Customs Enforcement, the Department of Homeland Security, or the United States government." She can be contacted at lyoungman@law.gwu.edu.

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