COs as chief judge and jury
A proposed amendment the Clinton administration wants to make to the Federal Acquisition Regulation to weed out unscrupulous contractors may seem like a prudent move to ensure that taxpayer dollars go to law-abiding companies. But as written, the amendment could create more problems than it solves.
The Office of Management and Budget intends the amendment to clarify a rule that lets federal contracting shops discard bids from contractors that have violated federal laws when contracting officers consider a company's "integrity and business ethics." The amendment provides examples of the kinds of violations that a contracting officer could cite to drop a company from consideration.
Almost everyone agrees that companies that have evaded taxes, broken environmental laws, failed to meet health and safety regulations or routinely ignored labor and consumer-protection laws should not be rewarded with federal contracting work. But the amendment goes far beyond targeting those offenders. Rather, it allows contracting officers to make a decision to drop a company from consideration based on simple and vague "persuasive evidence" of "repeated and substantial violations." So it seems a contracting officer could use a series of unproved allegations about workplace violations as a reason to not consider a company bid.
The amendment as written gives the contracting officer broad, discretionary power that could easily be abused, and it ignores the need for due process. Anyone who has been wrongfully accused understands the damage a mere accusation can cause. Without requiring a strong burden of proof for allegations, agencies could use the amendment to steer work to favored vendors by whittling down the competitive field or to simply punish those companies a contracting officer may not like.
Certainly, the intent of the unions and the proposed changes to the FAR are honorable. But the vehicle itself strikes us as arbitrary and unfair. At the very least, the burden of proof should be greater, and there should be some adequate avenue of appeal.