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Wednesday
Jun122019

How can we understand the world's various debarment regimes?

Within the last decade, governments from around the world have expanded their use of suspension and debarment to promote integrity in public procurements, reduce performance risk, and protect against fraud and corruption.

Despite their ubiquity, suspension and debarment (also referred to as “exclusion”) are often viewed through the lens of other disciplines.

To that end, a Working Group of the International Bar Association’s Anti-Corruption Committee has launched the Global Suspension and Debarment Survey.

Working in cooperation with the World Bank Office of Suspension and Debarment, the Sanctions Officer for the Inter-American Development Bank Group, and Le Bureau de l’inspecteur general de la Ville de Montréal, this innovative survey examines exclusion as its own discipline by gathering knowledge and comparable data on exclusion systems worldwide, without ranking or scoring individual systems.

The results of this survey will help establish a firmer understanding of the methodology of exclusion mechanisms and eventually lead to the development of best practices.

A pilot of the survey was launched between May and October 2018 with the goal of testing the viability of the survey’s questionnaire and data collection procedures. The pilot received fifteen responses from eleven jurisdictions.

The survey sought information on six key areas relating to an exclusion system’s structure and operation:

  • legal and institutional framework
  • functioning and enforcement
  • substantive grounds for exclusion
  • scope and effect of exclusion
  • transparency
  • sub-national exclusion systems

The survey focused on collecting detailed information on “government-wide exclusion mechanisms,” defined as an exclusion of suppliers from competing for or receiving contracts at the national (or federal) level, across all government agencies.

Most participating jurisdictions indicated the existence of a government-wide exclusion mechanism. The exclusion mechanisms in nine of ten surveyed jurisdictions are governed by administrative law, although a few respondents noted that criminal and/or civil law convictions could also play a role in their jurisdictions.

Suppliers subject to exclusion proceedings can face severe repercussions, including lengthy exclusions from public contracting, bad publicity, and even fines or additional penalties. Because of the severity of these consequences, suppliers often have significant rights to present their case and seek an appeal during an exclusion proceeding.

In all jurisdictions, the supplier is entitled to the opportunity to present its defense to the decision-maker or otherwise contest the grounds for exclusion and has the right to seek an appeal of the initial decision.

In all jurisdictions except one, some form of notice must be given to a supplier facing exclusion. These findings indicate that given the severity of exclusions, countries have established procedures to protect the due process of the supplier.

On May 22, 2019, experts gathered at The George Washington University Law School to discuss the findings of the pilot of the Global Suspension and Debarment Survey. A panel of procurement experts from GW Law, the US government, and the World Bank discussed the findings of the pilot study, the issue of standardization in exclusion systems, and their own experiences with the creation and development of exclusion systems.

If you are interested in the discussion, please click here for a summary of the event.

The next round of the survey will aim to collect a broader range of responses from a more diverse set of jurisdictions. If you would like to participate in the survey or if you know someone with knowledge of exclusion systems, please click here to download a PDF-fillable copy. A completed version of the survey can be returned to sdsurvey@worldbank.org.

We would like to thank the participants and contributors to the pilot study, whose names are provided at the end of the pilot study write-up

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Collin Swan is Counsel (Sanctions), and Eleanor Ross and Amanda McDowell are legal interns, in the World Bank’s Office of Suspension and Debarment. They can be contacted at sdsurvey@worldbank.org.