How much discretion in punishing contractors should agencies have?

Some lawmakers want to make suspension or debarment of misbehaving contractors mandatory, but the outgoing OFPP head disagrees with the strategy.

Dan Gordon, the outgoing administrator of the Office of Federal Procurement Policy, told senators Nov. 16 that mandatory suspensions and debarments of contractors actually undermine the judgment of the agency official who is charged to make those decisions.

“It seems to undercut the role of the suspension and debarment official to say we’re taking away your discretion,” Gordon told Sen. Claire McCaskill (D-Mo.) during a hearing held by the Homeland Security and Governmental Affairs Committee.

With mandatory suspensions or debarments, “we’re deciding no matter what you’ve done to correct the problem, no matter what remedial measures you’ve taken, you’re going to automatically suspend or debar,” he added.


Related stories:

Procurement leader blasts mandatory debarment proposal

Suspension, debarment grab attention, resources


In contrast, McCaskill supports requirements for mandatory suspension or debarment of a company for a criminal indictment and conviction of a situation related to a federal contract. She said it's a matter of good character on behalf of the United States.

“I think deterrents for other contractors are really important, and it allows leverage to get better behavior out of contractors,” McCaskill said. The senator chairs the committee’s Contracting Oversight Subcommittee. She’s also chairwoman of the Armed Services Committee’s Readiness and Management Support Subcommittee, which considers contracting issues, among other areas.

Steven Shaw, deputy general counsel for contractor responsibility for the Air Force, also disagreed with McCaskill's proposal. Instead, he suggested a mandatory referral within a period of time to a debarring official after a criminal conviction. Beyond that, any termination by default of a contract should be going to the debarring official. Shaw has been the Air Force’s debarring official for the last 15 years.

He posed a few situations that may be a concern if the penalties were mandatory. New management may have taken the reins of a company with an entirely new corporate structure. Or the misconduct could have come from an instance from years ago.

“You need to be able to encourage companies to fix the problem, and if there’s mandatory debarment, I don’t know if you have that encouragement,” he said.

But mandatory suspensions or debarments may not be too far off, despite the objections of some.

The fiscal 2012 Defense Department Appropriations Act (H.R. 2219) has a new provision that would prohibit DOD from awarding a contract to a company that was convicted of a felony criminal violation under any federal law in the previous two years. DOD would be stopped from awarding a contract any corporation with unpaid federal taxes. Other appropriations bills include similar language.

The House passed the bill earlier this year. The Senate has not passed its version.

During the hearing, Gordon said the administration has proposed different option. An agency would have to abide by a mandatory suspension or debarment, unless officials conclude there were particular circumstances that would not require an automatic penalty.

“There would be a presumption that would address your concern,” he told McCaskill. But “you’d still retain the ability for the agency to say this is a special case.”

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.