Public Contract Law Journal

The World Trade Organization's Missed Opportunity: How the Agreement on Government Procurement Can Be Transformed from a Vehicle of Trade to One of Human Rights

by Nicole Giles

Nicole Giles (ngiles@law.gwu.edu) is a J.D. Candidate at The George Washington University Law School and serves as the Editor-in-Chief of The Public Contract Law Journal. She would like to thank Roya Motazedi, Soohyun Choi, and Kevin Park for their guidance and feedback. She also would like to thank her mom, dad, and siblings for their unwavering support and encouragement.


I. Introduction

Refugees flee their homelands each day to escape the fear and violence of war, persecution, and even natural disasters.1 By seeking asylum in a foreign land, refugees leave behind many, if not all, belongings in hopes of rebuilding their lives and protecting their families.2 However, not all countries willingly open their borders to those fleeing, and not all corporations working within those countries actively seek to uphold refugees’ basic human rights.3 In Australia, refugees arriving by boat automatically become a part of an “offshore processing” regime as the Australian government forcibly sends asylum seekers to a “Refugee Processing Centre” on Manus Island in Papua New Guinea or the Pacific Island of Nauru.4 In these remote locations, refugees and asylum seekers who sought the safety of Australian shores are instead subjected to cruel and inhumane conditions.5

The Australian government outsourced the work through government contracts.6 Amnesty International recently revealed that Broadspectrum, a subsidiary of the Spanish multinational company Ferrovial, not only ran the processing center on Nauru but also made billions of dollars from government contracts while violating the refugees’ human rights.7 Amnesty International found these private corporations — in addition to the Australian government — responsible for various human rights violations.8

While international forums exist to bring claims against the Australian government, the private corporations will likely face little, if any, backlash for their offenses beyond media criticism.9 Even if one country chose to exclude Ferrovial from its state’s procurement system because of the company’s involvement with human rights violations, this decision does not exclude other countries from awarding Ferrovial public contracts worth billions of dollars — despite its abuses.10 Ferrovial would likely face little economic backlash unless other countries collectively decide to make the corporation ineligible to compete for their government contracts. With only states legally bound to human rights treaties, the international community cannot hold Ferrovial directly liable in front of an international court for its violations.11 This creates a gap between a non-state actor (NSA) committing human rights violations and a vehicle in which the international community can hold the actor accountable.

Historically, “many western European and North American countries” viewed public procurement as a vehicle to further non-economic domestic policies, such as advancing human rights.12 However, domestic public procurement laws — specifically designed to exclude certain suppliers — are difficult to hold to international standards.13 This stems from a variety of factors. First, states often award contracts on a “shadowy” discretionary basis (with a secondary design to protect the state’s domestic market).14 Second, states prefer using other tools, such as tariffs, in international economic negotiations while viewing procurement laws as a matter of domestic policy not subject to international regulation.15 Third, the discretion to award government contracts creates “a source of valued political patronage.”16 Not only can governments use the procurement process to hand out favors to interest groups, but this discretion can also lead to illicit transfers of funds from governments to private companies — as seen in corruption scandals over the years.17

The international procurement regime offers a possible solution to this gap. The World Trade Organization (WTO)18 can provide a means to hold private companies liable for human rights violations by using economic penalties as an incentive. When the WTO implemented the Agreement on Government Procurement (GPA) without explicit human rights obligations,19 the WTO missed an ideal opportunity to create express legal consequences for companies — including overseas government contractors — violating international human rights law. However, the WTO still can remedy this mistake by bringing the focus back to human rights and preventing future refugees or asylum seekers from suffering at the hands of a government contractor. This Note suggests that GPA members need to look to the success of past actions and modify the GPA to take a stronger stance against human rights violators. In addition, countries should turn to more modern trade agreements as a means to incorporate more human rights standards into the international procurement regime.

Part II of this Note discusses how international human rights law struggles to hold corporations accountable for human rights violations. Because international law largely relies on states to enforce human rights obligations through domestic laws, the international community cannot hold corporations directly liable in an international venue. This Note suggests this conventional model of monitoring international human rights law creates a gap between the international community and the private sector. Part III discusses how the WTO’s GPA offers itself as an opportunity to fill this gap because the document uniquely binds states’ use of the private sector. Part IV of this Note argues the GPA presents an opportunity to improve international human rights law because the Agreement can be modified so that private sector suppliers face more severe consequences for violating human rights standards.

This Note will go on to recommend a modification of the GPA’s required exclusions, followed by the potential installation of a GPA suspension and debarment system. Practically speaking, these modifications may seem to present lofty goals, which would take years of negotiations to implement. However, by striving to achieve these goals, WTO members can work toward the general ambition of restricting private companies with connections to human rights abuses from participating in the international government procurement regime.

II. International Human Rights Law Struggles to Hold Corporations Accountable for Human Rights Violations Because International Law Relies on States’ Enforcement Through Domestic Laws

International human rights law (IHRL) is a specialist regime within the broader body of international public law.20 Unlike national legal systems, public international law lacks a central legislative body, executive body, and court of compulsory jurisdiction.21 Therefore, international law — and IHRL — derives jurisdiction from other sources; the international community sets out these accepted sources in article 38(1) of the Statute of the International Court of Justice.22 IHRL, as a subset of international public law, largely originates from these international sources, which only allow states — not private corporations — as signatories.23 This structure of using a mixed bundle of international sources to form the basis of the legal regime makes it extremely difficult for the global market to hold corporations, i.e., government contract suppliers, accountable to international standards.

The concept of creating a form of international laws did not appear overnight. Not all states supported the rise of international law or the idea of each state being bound to judgment by other states.24 Early on, some states argued IHRL norms infringed on state sovereignty rights and claimed states should be left to conduct business in their territories by whichever means their governments saw fit.25 However, with modernization and development, the international community evolved and no longer wanted to allow a state’s treatment of its citizens and individuals within its territory to go without any consequences.26 Growing this standard, multilateral international organizations — such as the United Nations (UN) — started to promote human rights through the language in their mandates while regional human rights courts slowly formed in Europe, Africa, and the Western Hemisphere.27 Notwithstanding the numerous inefficiencies hindering these goals, the existence of the abovementioned organizations and courts show the progress over the years toward creating a network in which to hold states accountable for their actions.28

The ratification of at least one of the nine global treaties — adopted under the umbrella of the UN’s goals for human rights — by every state in the world serves as additional evidence of progress toward international human rights protection.29 Additionally, as of “mid-2015, more than 160 countries [] ratified the two core conventions on civil and political rights and economic, social, and cultural rights.”30 Further progress is demonstrated by 177 states ratifying the Convention on the Elimination of All Forms of Racial Discrimination; 189 countries ratifying the Convention on the Elimination of all Forms of Discrimination against Women; and 196 states ratifying the Convention on the Rights of the Child.31

IHRL developed as a “tool to protect individuals from the arbitrary use of power by states,” not as a means to curb the power of private entities.32 IHRL cannot directly bind corporations; rather, it indirectly controls the private sector by holding a state liable when a corporation in that state violates human rights standards.33 To a large degree, IHRL relies on states’ enforcement of their own domestic laws to implement IHRL treaty provisions in both the public and private sector.34 This structure of passing down responsibility holds the state more liable for the corporation’s actions than the corporation itself. This structure also assumes that a state is powerful enough to enforce human rights standards upon its domestic private sector.

Corporate law is traditionally a state’s domestic matter and generally not accountable to recourse at the international level.35 A state’s domestic corporate or commercial laws usually do not mention corporations’ human rights responsibilities.36 Instead, separate anti-discrimination or labor laws govern these responsibilities — thinly spreading human right obligations through the domestic field.37 These domestic laws apply only within the state’s territory, seemingly leaving corporations without any international human rights obligations and states unclear as to whether they can hold private entities liable in the international realm.38 For example, in the United States, the U.S. Supreme Court has yet to decide definitively the scope and substance of U.S. corporations’ human rights obligations abroad and how to hold corporations accountable for tortious acts overseas.39 Due to the domestic applications of law, IHRL struggles to hold corporations accountable to the international community.

A. The Conventional Model of Monitoring International Human Rights Law Creates a Gap Between the International Human Rights Law Community and Private Corporations

The “conventional international framework [to monitor and protect] human rights is state-centric.”40 IHRL obligates states to protect human rights within their territory.41 This heavy reliance on states’ control over corporations creates inefficiency — as any legal punishment trickles down through multiple layers from the international community to the state to the corporation.42 At the international law level, the “corporate form is barely recognized” in human rights law or any other international field.43 This model creates a gap in holding corporations and other NSAs responsible for serious violations of human right standards.

Broadly speaking, human rights are not integrated into corporate or trade law, and thus, they are not a large consideration for the corporations or “the institutions governing them.”44 The trade institutions and the human rights institutions generally are independent of one another — resulting in an ineffective corporate responsibility regime due to the separation of human rights law from trade experts.45 With trade experts not focused on IHRL, trade agreements usually contribute to the lack of a transnational human rights regime to govern corporations’ transnational activities.46 Thus, corporations and other NSAs survive and thrive in the gap created without direct legal obligations.47

Despite this traditional framework of states acting as IHRL’s subject matter, the international community seems to be moving toward more efficiently prosecuting human rights abuses.48 Law and policymakers increasingly blur the line dividing the subjects and objects of international law.49 This growing trend reflects their desire to adapt to the social changes over the years.50 International government procurement can follow this trend — the international community can encourage states to adopt more human right provisions in their procurement contracts with private suppliers.

B. The WTO Could Provide the Platform Needed to Help Close the Gap Between International Human Rights Law and Private Corporations by Controlling Access to the Government Procurement Market

Despite the imperfection of different states’ government procurement processes, the WTO still attempts to regulate the field internationally through the GPA.51 But with trade as the primary focus of the Agreement’s creation, the WTO overlooked an opportunity to use the GPA52 as a vehicle to impose human rights obligations onto private corporations. The GPA offers an opportunity to promote international human rights due to the Agreement’s unique relationship connecting governments to private corporations.

None of the WTO’s main objectives listed on its website expressly mentions human rights.53 However, implied human rights considerations are found hidden among the WTO’s trade objectives.54 While at first seemingly independent, trade law and human rights law closely connect: countries historically used trade sanctions and trade agreements to promote international respect for human rights.55 For example, in the 1800s, nations aimed to abolish slavery by adopting trade restrictions in treaties and statutes that would negatively impact the slave trade.56 Specifically, Great Britain placed a ban on trade involving slaves or products made by slaves.57 Later, in the 1930s, the United States started barring imports manufactured by other forms of forced labor.58

The WTO’s primary goal is to liberalize international trade.59 However, trade and human rights interconnect with one another through labor standards, manufacturing regulations, and various other aspects of commerce.60 The WTO’s involvement in the promotion of human rights is a subject of intense academic debate, but the WTO could be used to fill the enforcement gaps in the traditional international structure.61 Some scholars believe that the “WTO obligations somehow encourage, lead to, authorize or permit human rights violations, and that the WTO treaty should therefore be condemned.”62 On the other hand, other scholars argue that human rights violators also violate the WTO treaty with their abuses.63

Although “many scholars resist any attempt to assign the WTO a role in the promotion, protection, and enforcement of human rights,” the WTO’s involvement remains crucial in bringing greater accountability to both states and private corporations.64 For example, the “WTO does not distinguish between [similar] products on the basis of [their production]” — making it difficult for a country to ban the import of goods solely on the ground that the production lines involve human rights violations.65 Instead of trying to install changes into all WTO agreements or overhauling the organization, it would be more effective to start change in an area in which the state is heavily intertwined with the private sector: government procurement.

The international community must realize that to achieve a fuller and wider realization of human rights, it is necessary to create economic advantages that appeal to and incentivize corporations — and other NSAs — to comply with human rights standards. The WTO procurement regime can promote human rights by excluding corporations involved in human rights violations from the WTO procurement market — creating a direct economic incentive for corporations to enforce human rights standards.

III. Due to the Linkage Between the State and the Private Sector, the Agreement on Government Procurement Offers a Unique Opportunity to Improve Human Rights Standards of Corporations

With a relatively low percentage of WTO members66 signed onto the Agreement, scholars often criticize the GPA for limited membership and a lack of members from poor and developing countries.67 However, the GPA has been gaining popularity over the years — increasing from the original twenty-five countries to the current membership of forty-seven countries — and will likely keep gaining members as more countries realize the importance of international procurement agreements.68 As of 2015, the annual value of procurement activities open to the international competition of GPA members was around 1.7 trillion U.S. dollars.69 Therefore, despite the criticisms, the GPA still maintains a great deal of influence over the global community, and changes made to the Agreement would impact human rights obligations on all suppliers connected within this growing market.

A. The GPA’s Structure Is Designed to Increase Trade in the Global Marketplace While Allowing for a Standard Level of Transparency Between States

As a plurilateral agreement, the GPA requires parties to sign onto the GPA itself after obtaining membership with the WTO.70 The GPA organizes around procuring entities rather than the nature of the items procured71 and includes detailed rules on (1) the conduction of government proposals, (2) how and where the government can advertise proposals, (3) the qualification of suppliers, (4) how to use technical specifications, and (5) how to conduct the selection process for the contract.72 In addition, the Agreement provides guidance on the “minimum time limits for tendering and delivery,” the information required in the tender documentation, the rules to submit, and how to properly award the contract.73 Overall, the GPA offers states guidance on how to improve their own systems and harmonize international public procurement.74 In addition, the WTO specifies the dispute platform in which dissatisfied members or suppliers can bring their GPA contracts complaints.75

The GPA’s drafters intended to establish this framework to achieve greater liberalization and expansion of the global marketplace and trade.76 The drafters hoped to accomplish this goal through two fundamental principles: nondiscrimination and transparency.77 These principles support one another — transparency measures insure that discrimination does not have a place in the procurement process.78 Transparency supports the overarching goals of the procurement system by encouraging participation among suppliers through clear and accessible rules.79 The GPA’s transparency measures include (1) requiring publication of general rules on procurement and procedures, (2) requiring publicity for opportunities through invitations to participate, (3) confining and structuring the discretion of procuring entities, and (4) providing a monitoring and enforcement mechanism to oversee procurements.80

The GPA has heavily influenced its signatories. It has led to multiple members amending their procurement laws and regulations to conform to the guidelines set forth in the Agreement.81 Many states even amended laws to allow for judicial review of bid protests and set up “specialized administrative tribunals to hear bid protests and challenges.”82 As more members sign onto the GPA, government procurement law becomes more uniform internationally.83 Countries changing domestic laws in support of the GPA illustrate the influence of the Agreement. By adding clear human rights obligations into this Agreement, the GPA can impose these obligations directly onto states and corporations.

B. The U.S. Government Procurement System and the WTO Provide an Example of the Influence the WTO Has on a Country’s Legal System

The WTO grants economic advantages to corporations in the global marketplace — making it an ideal organization to implement obligations onto international suppliers.84 Looking at advantages supplied by the GPA to companies in the U.S. market demonstrates why international suppliers would comply with new human rights obligations rather than risk ineligibility to compete under the GPA.85 WTO members that sign onto the GPA apply the Agreement to their central government entities.86 However, the Agreement does not provide coverage over all aspects of the members’ procurement systems.87 Instead, each member determines which portion of its domestic procurement system to open up to foreign suppliers of the other GPA members.88 The span of coverage is determined through negotiations when a member signs onto the Agreement, and each member’s specified coverage appears within the GPA’s annexes.89

1. The GPA Offers a Means for Foreign Suppliers to Navigate a State’s Protection of Its Own Domestic Market

Gaining access to another state’s procurement market usually involves getting around that state’s protection of its own domestic market.90 The GPA acts as one of the best vehicles to get suppliers into foreign markets — as seen through the United States’ coverage in the Agreement. The United States, like other countries, strives to use government procurement to grow and protect domestic industries.91 Despite recent reforms allowing more foreign supply options in the U.S. federal procurement process, multinational suppliers still face legal restrictions on their participation in the U.S. market.92 The GPA works to limit these restrictions for other members signed onto the Agreement and gives certain foreign suppliers advantages in the U.S. marketplace.93

The U.S. government procurement system provides a large and lucrative market for foreign suppliers of goods and services.94 However, this market is traditionally difficult to enter, and foreign suppliers are required to conform to complex procedural requirements and often must supply a customized good.95 Multinational suppliers of non-domestic products and services fight against a system not designed for their economic gain.96 Despite these difficulties, the U.S. federal government alone still spends over $4 billion on overseas suppliers.97 Foreign state governments spend a combined amount of nearly $200 billion abroad.98 The GPA is a major means in which a supplier can gain entry to this market and can serve as an effective incentive to further human rights objectives.

2. The Buy American Act Is the Greatest Non-Domestic Sales Barrier in the United States, but the GPA Makes It Easier for Foreign Suppliers to Enter the U.S. Market

The most significant barrier to selling foreign goods or services to the U.S. government is the Buy American Act (BAA), which encourages the federal government to “buy American.”99 However, the statute is subject to limitations from both its own provisions and the Trade Agreements Act of 1979 (TAA), which implemented the GPA domestically.100 Under the BAA, the U.S. government must procure goods and services only if they are manufactured, mined, or produced in the United States.101 Exceptions exist when these restrictions oppose public interest, the prices of domestic products are unreasonable, or the domestic products available are not of satisfactory quality.102 Around thirty-five states in the United States follow the federal government’s guidance on this matter and implement some form of “buy American” or “buy local” restrictions on their local state procurements — further restricting foreign suppliers’ access to the U.S. marketplace.103

The WTO’s GPA provides a major exception to the BAA for goods and services supplied by contractors of the GPA signatories.104 Under Title III of the TAA, the United States Trade Representative (USTR) has the authority to waive the BAA procurement restrictions for any contract covered by the GPA.105 The United States sets out the designated countries eligible for this BAA waiver.106

Instead of taking the traditional approach of receiving a waiver for each contract, the GPA seeks to open this lucrative U.S. procurement market to more overseas suppliers and make it more manageable for foreign companies to apply for U.S. government contracts.107 Overall, the GPA expands procurement opportunities for multinational suppliers to enter the U.S. market through federal acquisitions and procurement by sub-federal and government-related entities.108 In addition, these new suppliers have the opportunity to enforce their rights under the binding WTO dispute settlement process.109 However, Congress never passed a law implementing private enforcement and instead barred firms from seeking redress under the GPA at federal or sub-federal levels.110

Non-GPA members face significant barriers when trying to break into the U.S. procurement market.111 For example, the Trade Adjustment Assistance program encourages countries to join the GPA by banning procurement of GPA-eligible products from any country not designated through the USTR.112 This ban, stricter than the BAA, goes beyond the domestic price preference set forth.113 In addition, under Title VII of the BAA amendments, the United States can prohibit procurement of products from certain countries as a form of retaliation from a country discriminating against U.S. contractors or products.114

The desire for companies to enter the profitable U.S. government procurement market — despite the restrictions in place to prevent entry — demonstrates how willing countries are to navigate the waters of trade restriction as long as they can be rewarded with entry in the end. The WTO should take advantage of its economic influence and insert more human rights obligations that corporations must comply with to gain access into the international procurement market. This would lead to higher human rights standards and greater economic gains for the companies themselves.

IV. The GPA Can Improve International Human Rights Law by Adding Additional Restrictions to Participate and Implementing a Suspension and Debarment System for Foreign Suppliers

When adding additional human rights obligations into the GPA, it is important to consider how to incorporate these obligations in the most efficient manner because it would likely take years for the parties to negotiate and accept major revisions to the GPA. Theoretically, first modifying a few smaller clauses in one document would likely require a shorter process to gain approval among a large group than adding a whole additional article.115 The most efficient way to implement human right obligations through the GPA would be to modify the language in Article VIII.

The next step to further human rights obligations would be establishing a suspension and debarment system to prevent human rights violators from participating in the GPA market. GPA members should add an article to the document outlining a system in which human rights violators are suspended or debarred from the international procurement market. This creates a severe economic consequence for violations and shows the member states’ commitment to enforcing human rights, despite the favorable prices violators may be able to offer for goods or services. Members of the GPA would need to work together to decide the exact method of suspension and debarment, but the United States’ own debarment system offers a viable starting point. The implementation of a GPA suspension and debarment system would be difficult and time-consuming but would yield significant benefits in promoting human rights. Compromise becomes essential for member states to change the GPA’s goals from furthering free trade to promoting free trade and human rights simultaneously.116

A. Modifying the Exclusion Provision Already Found in the GPA Would Create Human Right Obligations on Suppliers Without Making Dramatic Changes to the Entire Document

Article VIII of the GPA — titled “Conditions for Participation” — provides guidelines under which a party can exclude a supplier from the procurement process without violating the Agreement’s fair competition requirements.117 Parties are not required to exclude a supplier even if a supplier has engaged in excludable conduct because the Agreement leaves it up to the discretion of the party:

[A] party [] may exclude a supplier on grounds such as: (a) bankruptcy; (b) false declarations; (c) significant or persistent deficiencies in performance of any substantive requirement or obligation under a prior contract or contracts; (d) final judgments in respect of serious crimes or other serious offences; (e) professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the supplier; or (f ) failure to pay taxes.118

The provision’s use of the word “may” implies that the drafters intended to provide states with discretion as to whether to exclude suppliers — rather than imposing a requirement on the states. Because the provision is discretionary, it does little in furthering a government’s responsibility to buy only from suppliers that respect and enforce their employees’ or suppliers’ human rights. A government could simply acknowledge the grounds of exclusion and then allow the supplier to continue in the procurement process.119

As the first step to furthering protection of human rights, the GPA exclusion article would benefit from adding another section that focuses on human rights violations as grounds for immediate exclusion from competition. The GPA members would look to the various human rights treaties to find the exact wording that proves most effective to hold corporations responsible in dispute settlements. However, the essence of the exclusion should focus on establishing that clear and convincing evidence of human rights abuses — such as child labor, human trafficking, or inhumane working conditions — immediately becomes grounds for exclusion from the global procurement market rather than a single contract.

Even with the addition of a subsection, the WTO must modify the exclusion article’s use of “may” as applied to human rights obligations. Adding that a party “may” be excluded if “found to be in violation of human rights” still allows for state discretion as to whether the supplier can participate in current, or future, procurements. “May exclude” should be enhanced into “must exclude” regarding human rights violations — making it mandatory for states to punish suppliers that violate human rights. If the wording remains conditional, corrupt or indifferent governments will continue to take advantage of the offered lower price and disregard the company’s working conditions or illegal labor if it benefits the state.

However, even if the stronger requirement language cannot be adopted, adding a human rights category to the exclusion provision would still be a step in the right direction — bringing human rights into the GPA’s forefront. If added, a country will be required to look further into the contractor’s working conditions, supply chain, and treatment of the local people and employees to decide if the state must exclude the contractor from the competition. This additional precaution encourages countries to look further into the contractors and encourages the contractors to have higher standards.

B. The GPA Should Implement a Suspension and Debarment System to Punish Suppliers Found in Violation of International Human Rights Law

Adding additional human rights language into the GPA’s exclusion provision would be a huge step forward in IHRL, but countries can take additional, more forceful steps to further promote IHRL through the GPA. This Note acknowledges the extreme difficulty in convincing all GPA members to work aggressively toward these human rights goals, as many countries are still battling anti-corruption principles in their procurement systems. However, a second step to greatly improve human rights standards within the GPA would be the implementation of a suspension and debarment system — centered around punishing corporate violators of IHRL. As the GPA currently stands, all disputes over GPA contracts must be taken to the WTO dispute system. As far as IHRL is concerned, only states can be pulled into an international criminal court for assisting a human rights violator — leaving the supplier without economic consequence under the GPA. To fill the gap between international human rights obligations and private companies, a suspension and debarment system offers a means to hold corporations accountable for their violations.

Introducing a human rights suspension and debarment system under the GPA provides states with an opportunity to directly punish human rights abusers — instead of punishing the state they operate in. This proposed system could punish individual contractors and over time, create a list of unsuitable suppliers from which no members can purchase from for a set period of time or until the corporation takes steps to improve its standards and pays restitution to victims. This method would be an efficient and direct means to promote human rights under the GPA. If debarred or suspended, a company cannot participate in the WTO international procurement market. In addition, corporations appearing on the suspension and debarment list are ineligible to apply for contracts from other GPA members. This creates an effective incentive for corporations to comply with any and all human rights provisions.

1. The U.S. Suspension and Debarment System Offers Guidance as to What This Type of System Would Look Like Under the GPA

Under the U.S. procurement system, the government uses suspension and debarment as tools to exclude contractors from receiving new contracts.120 These tools come into play when the government believes a contractor is not responsible and presents a threat to the state’s interests.121 The main difference between suspension and debarment is the length of exclusion from the procurement market.122 Debarment acts as a form of blacklisting while suspension is a form of “graylisting.”123 The U.S. government can exclude contractors from partaking in the domestic market in three ways: administrative suspension and debarment; statutory debarment; and de facto debarment.124

FAR 9.4 comprises the regulations governing how agencies may administer administrative suspension and debarment. Suspension acts as a temporary measure used by the government to further “investigate[] the matter and assess[] the contractor’s present responsibility.”125 Suspension may be imposed on a contractor when there is “adequate evidence” that “immediate action is necessary to protect the [g]overnment’s interest.”126 However, suspension cannot exceed one year unless an assistant attorney general requests an extension.127 This extension can be an additional six months but in no event, longer than eighteen months unless legal proceedings have already begun.128

The government uses debarment as its final measure when it finds a contractor not responsible or not a good source for goods and services.129 Unless an extension is needed to protect government interests, debarment cannot usually exceed three years.130 If the debarment is not based on a conviction or civil judgment, the cause must be established by a “preponderance of the evidence.”131 An agency can use a notice of debarment to immediately exclude the contractor from competition while the government investigates a cause for debarment.132 However, if the basis of a debarment notice is a criminal conviction or civil judgment, the suspension officer must issue a decision within thirty days if facts are undisputed; with disputed facts, there is no time limitation for the decision to be rendered.133

2. The U.S. Administrative Debarment Model Would Be the Most Beneficial to the GPA Because It Lends Itself More Easily to a Multi-State Agreement

The WTO should look to the U.S. administrative debarment as a model to implement a human rights suspension and debarment system within the GPA context. Administrative debarment lends itself more easily to the GPA because it is not a binding statute pulling states or corporations into court.134 By using administrative debarment, GPA states can play under the rule of federal agencies. Under this system, if one GPA state determines a company has violated human rights, then all the states must bar it from their government procurement markets. This slowly creates a list of suppliers, world-wide, that have been found to violate human rights or have accusations against them. GPA members then could collectively bar all suppliers on the debarment list from participating in their government procurements. Even if a state’s government may be corrupt and willing to award a contract to a human rights violator, other states can recognize the violations and place that supplier on the debarment list — eliminating the corrupt government’s opportunity to use the corporation.

3. The Use of Suspension and Debarment Creates Extreme Economic Incentives to Promote Human Rights Because Violators Are Cut off from a Large Global Market, but Violators Still Have an Opportunity to Make a Case for Their Innocence

While providing due process, suspension and debarment can have a devastating impact on a contractor’s business even if the contractor is allowed back into the market in the future.135 By creating an economic incentive to promote human rights, the GPA would encourage suppliers to reevaluate their labor practices or other possible violations of human rights standards. If contractors were fearful of being excluded from all the international procurement markets created by the GPA, they would likely invest more money into their corporate responsibility programs to insure their compliance with IHRL. When a contractor is suspended, or given a notice of debarment, it is ineligible for any additional government contracts.136 In the international regime, this could translate to the contractor’s exclusion from all procurement for members of the GPA. This creates a system in which corporations have tangible, serious punishments if there are allegations of human rights violations against them or evidence of abuses. This allows the central governments to still have power over the foreign corporations but only requires that one state find a corporation in violation. This Note recommends that by installing a GPA suspension and debarment system, members will work toward restricting private companies with a connection to human rights abuses from participating in the international government procurement regime.

V. Conclusion

As the world progresses, one would hope that the desire to make the world better for all individuals would progress as well. With entanglement of the world market with the standard of living, it seems obvious that an organization designed to open international trade relations would also want to create new opportunities to improve people’s living situations and their treatment in the work field. The WTO missed an opportunity to takes steps in achieving these goals. Through first adding obligations in the exclusion conditions and then creating a suspension and debarment system, the GPA presents itself as an ideal opportunity to hold corporations liable for human rights violations in an international setting.

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  1. See, e.g., Austin Ramzy, Rohingya Refugees Fleeing Myanmar Await Entrance to Squalid Camps, N.Y. TIMES (Oct. 18, 2017), https://www.nytimes.com/2017/10/18/world/asia/rohingyarefugees-myanmar.html [https://perma.cc/A7UZ-MGJH]; Hassan M. Fattah, At Lebanon Port, War’s Displaced Wait for Boat that Doesn’t Come, N.Y. TIMES ( July 20, 2006), http://www. nytimes.com/2006/07/20/world/middleeast/20tyre.html [https://perma.cc/FK42-5U7T]; Richard A. Oppel, Jr., Fallujans in Flight: Transit Camps Are Not Much Safer Than Siege They Left, N.Y. TIMES (Nov. 18, 2004), http://www.nytimes.com/2004/11/18/world/fallujans-in-flighttransit-camps-are-not-much-safer-than-siege-they.html [https://perma.cc/WK2B-2L4Z]; Ian Fisher, Crisis in the Balkans: Refugees; They Were Human Shields When 80 Died, Kosovars Say, N.Y. TIMES (May 31, 1999), http://www.nytimes.com/1999/05/31/world/crisis-in-the-balkansrefugees-they-were-human-shields-when-80-died-kosovars-say.html [https://perma.cc/F3ZMYP7Y]; Reuters, Lebanon Says Will Not Force Syrian Refugees to Return, REUTERS (Feb. 1, 2018, 12:13 PM), https://www.reuters.com/article/us-mideast-crisis-lebanon-refugees/lebanon-sayswill-not-force-syrian-refugees-to-return-idUSKBN1FL600 [https://perma.cc/N344-QY2T].
  2. See Patrick Kingsley & Sima Diab, Passport, Lifejacket, Lemons: What Syrian Refugees Pack for the Crossing to Europe, GUARDIAN, https://www.theguardian.com/world/ng-interactive/2015/sep/04/syrian-refugees-pack-for-the-crossing-to-europe-crisis [https://perma.cc/ZFS7-GYZU] (last visited Feb. 1, 2018).
  3. See, e.g., Judith Vonberg, How Some European Countries Are Tightening the Refugee Policies, CNN (Feb. 22, 2017), https://www.cnn.com/2017/02/22/europe/europe-refugee-policy/index.html [https://perma.cc/B2CF-SKWH]; Zia Weise, Turkey’s New Border Wall to Stop Syrian Refugees, POLITICO (Oct. 10, 2016, 5:34 AM), https://www.politico.eu/article/turkeys-new-borderwall-will-stop-syrian-refugees-immigration-instanbul/ [https://perma.cc/L4KG-SLPN]; Patrick Kingsley, Balkan Countries Shut Borders as Attention Turns to New Refugees Routes, GUARDIAN (Mar. 9, 2016, 9:56 AM), https://www.theguardian.com/world/2016/mar/09/balkans-refugeeroute-closed-say-european-leaders [https://perma.cc/5BNX-W6AY]; Michael Grabell, Exploitation and Abuse at the Chicken Plant, NEW YORKER (May 8, 2017), https://www.newyorker.com/magazine/2017/05/08/exploitation-and-abuse-at-the-chicken-plant [https://perma.cc/BD6VL8D3].
  4. AMNESTY INT’L, TREASURE I$LAND: HOW COMPANIES ARE PROFITING FROM AUSTRALIA’S ABUSE OF REFUGEES ON NAURU 4 (2017).
  5. Id.
  6. Id. at 5.
  7. The government awarded Broadspectrum a contract for AUSD $2.5 billion (U.S. $1.9 billion). Id.
  8. See generally id. at 9–18.
  9. Certain Phosphate Lands in Nauru (Nauru v. Australia), INT’L CT. JUST., http://www.icjcij.org/en/case/80 [https://perma.cc/BR3D-CX8M] (last visited Feb. 2, 2018); see also Marcia Narine, Disclosing Disclosure’s Defects: Addressing Corporate Irresponsibility for Human Rights Impacts, 47 COLUM. HUM. RTS. L. REV. 84, 85–86 (2015).
  10. See generally Christopher R. Yukins, Cross-Debarment: A Stakeholder Analysis, 45 GEO. WASH. INT’L L. REV. 219, 221 (2013) (arguing governments and international institutions have developed their own individual debarment systems, but the world could benefit from the creation of a system that cross-debars companies across all platforms).
  11. See generally Caroline Kaeb, The Shifting Sands of Corporate Liability Under International Criminal Law, 49 GEO. WASH. INT’L L. REV 351 (2016) (discussing how the international community is still trying to figure out how to hold corporations responsible at an international court level because corporations do not fit the Rome Statute’s description of who can be brought before the International Criminal Court; however, more recent judicial developments show a trend of judicial tribunals trying to hold corporations responsible for crimes, but this is mainly occurring at the domestic levels within each country).
  12. Christopher McCrudden, International Economic Law and the Pursuit of Human Rights: A Framework for Discussion of the Legality of ‘Selective Purchasing’ Laws Under the WTO Government Procurement Agreement, 2 J. INT’L ECON. L. 3, 7 (1999).
  13. Id. at 11.
  14. G. C. Hufbauer, J. Shelton Erb & H. P. Starr, The GATT Codes and the Unconditional Most-Favored-Nation Principle, 12 L. & POL’Y INT’L BUS. 59, 66 (1980).
  15. McCrudden, supra note 12, at 12.
  16. Patrick Low, Aaditya Mattoo & Arvind Subramanian, Government Procurement in Services, 20 WORLD COMPETITION 5, 6 (1996).
  17. Id.
  18. WTO is an intergovernmental organization created by the Uruguay Round (1986–1993) after nearly fifty years of countries operating under the General Agreement on Tariffs and Trade (GATT 1947). Gustavo Ferreira Ribeiro, Navigating the Turbulent Waters Connecting the World Trade Organization and Corporate Social Responsibility, 16 IND. J.GLOBAL LEGAL STUD. 249, 250–51 (2009). The WTO was established as an “organization aimed at providing a common institutional framework for the conduct of trade relations between its members—[as of July 2016 numbering at 164 countries]—in all matters relating to the legal instruments and agreements concluded in the 1994 package.” Arie Reich, The WTO as a Law-Harmonizing Institution, 25 U. PA. J. INT’L ECON. L. 321, 321 n.1 (2004). WTO members include: Albania; Angola; Antigua and Barbuda; Argentina; Australia; Austria; Bahrain; Bangladesh; Barbados; Belgium; Belize; Benin; Bolivia; Botswana; Brazil; Brunei Darussalam; Bulgaria; Burkina Faso; Burundi; Cameroon; Canada; Central African Republic Chad; Chile; Colombia; Congo; Costa Rica; Coôte d’Ivoire; Cuba; Cyprus; Czech Republic; Democratic Republic of the Congo; Denmark; Djibouti; Dominica; Dominican Republic; Ecuador; Egypt; El Salvador; Estonia; European Communities; Fiji; Finland; France; Gabon; The Gambia; Georgia; Germany; Ghana; Greece; Grenada; Guatemala; Guinea Bissau; Guinea; Guyana; Haiti; Honduras; Hong Kong, China; Hungary; Iceland; India; Indonesia; Ireland; Israel; Italy; Jamaica; Jordan; Japan; Kenya; Korea, Republic of Kuwait; The Kyrgyz Republic; Latvia; Lesotho; Liechtenstein; Luxembourg; Macau, China; Madagascar; Malawi; Malaysia; Maldives; Mali; Malta; Mauritania; Mauritius; Mexico; Mongolia; Morocco; Mozambique; Myanmar; Namibia; Netherlands; New Zealand; Nicaragua; Niger; Nigeria; Norway; Oman, Sultanate of Pakistan; Panama; Papua New Guinea; Paraguay; Peru; Philippines; Poland; Portugal; Qatar; Romania; Rwanda; Saint Kitts and Nevis; Saint Lucia; Saint Vincent & the Grenadines; Senegal; Sierra Leone; Singapore; Slovak Republic; Slovenia; Solomon Islands; South Africa; Spain; Sri Lanka; Suriname; Swaziland; Sweden; Switzerland; Tanzania; Thailand; Togo; Trinidad and Tobago; Tunisia; Turkey; Uganda; United Arab Emirates; United Kingdom; United States of America; Uruguay; Venezuela; Zambia; Zimbabwe. Members and Observers, WORLD TRADE ORG., https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm [https://perma.cc/7U4N-3AL4] (last visited Jan. 19, 2018).
  19. It should be noted that while the parties have undertaken work programs to collaborate together on the future of participation of small businesses and sustainable procurement, no existing or upcoming work programs focus on furthering the exclusion of human rights violators. Sati Harutyunyan, Risk and Expectation in Exclusion from Public Procurement: Understanding Market Access and Harmonization Between the European Union and the United States, 45 PUB. CONT. L.J. 449, 453 n.19 (2016).
  20. Christine Chinkin, Sources, in INTERNATIONAL HUMAN RIGHTS LAW 75, 75–80 (Daniel Moeckli, Sangeeta Shah & Sandesh Sivakumaran eds., 2d ed. 2014).
  21. Id.
  22. Id.
  23. Id.
  24. Hurst Hannum, Reinvigorating Human Rights for the Twenty-First Century, 16 HUM. RTS. L. REV. 409, 411 (2016).
  25. Id.
  26. Id.
  27. Id.
  28. See id.
  29. Id.
  30. Id.; see generally International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U.N.T.S. 171; see also International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S. 3.
  31. Hannum, supra note 24, at 411.
  32. David Kinley & Junko Tadaki, From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law, 44 VA. J. INT’L L. 931, 937 (2004).
  33. Id.; see also Andrew Clapham & Scott Jerbi, Categories of Corporate Complicity in Human Rights Abuses, 24 HASTINGS INT’L & COMP. L. REV. 339, 339 (2001).
  34. Kinley & Tadaki, supra note 32, at 937.
  35. Id. “Corporations law has … become more internationalized in recent [years],” yet this has not involved concerns to protect against human rights abuses. Id. at 937 n.11.
  36. Id. at 937–38.
  37. Id.
  38. See generally Kaeb, supra note 11, at 352–53 (discussing the shifting landscape of trying to hold private entities liable at international levels by discussing the changing role domestic legislation plays).
  39. See generally Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).
  40. Surya Deva, Human Rights Violations by Multinational Corporations and International Law: Where from Here?, 19 CONN. J. INT’L L. 1, 1 (2003).
  41. Id.
  42. Id. at 43.
  43. Kinley & Tadaki, supra note 32, at 935.
  44. Deva, supra note 40, at 33.
  45. Id. at 32–33.
  46. Kinley & Tadaki, supra note 32, at 935.
  47. See generally id.
  48. See generally Kaeb, supra note 11, at 351–54.
  49. Deva, supra note 40, at 43.
  50. Id.
  51. The GPA evolved from an annex in the 1994 GATT Agreement when, “in search of a comprehensive framework for liberalizing procurement markets and setting minimum standards,” several GATT signatories established a code on government procurement. Kamala Dawar, Government Procurement in the WTO: A Case for Greater Integration, 15 WORLD TRADE REV. 645, 648 (2016). This original code was signed by eight developed countries and ten European countries. Id. at 648 n.8.
  52. This Note focuses on the most recent version of the GPA. See generally Agreement on Government Procurement art. IV, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 4(b), 1869 U.N.T.S. 508, [hereinafter GPA]. While the first version of the GPA resulted from a side agreement during the Tokyo Round of multilateral trade negotiations, the general principle of the Agreement remains the objective of the revised document today—requiring each party to the Agreement to purchase products and suppliers of the other parties “treatment no less favorable” than that accorded to its own or any other party’s products and suppliers. Mark L. Jones, The GATT-MTN System and the European Community as International Frameworks for the Regulation of Economic Activity: The Removal of Barriers to Trade in Government Procurement, 8 MD. J. INT’L L. & TRADE 53, 70 (1984).
  53. See generally What We Stand For, WORLD TRADE ORG., https://www.wto.org/english/thewto_e/whatis_e/what_stand_for_e.htm [https://perma.cc/2P48-HLPM] (last visited Jan. 19, 2018).
  54. DAVID KINLEY, CIVILISING GLOBALISATION: HUMAN RIGHTS AND THE GLOBAL ECONOMY 41 (2009).
  55. Sarah H. Cleveland, Human Rights Sanctions and International Trade: A Theory of Compatibility, 5 J. INT’L ECON. L. 133, 134 (2002).
  56. Id.
  57. Id.
  58. Id.
  59. See generally Cristina Baez et al., Multinational Enterprises and Human Rights, 8 U. MIAMI INT’L & COMP. L. REV. 183, 195 (1999–2000).
  60. On linkage of trade and labor rights, see generally Friedl Weiss, Internationally Recognized Labour Standards and Trade, in INTERNATIONAL ECONOMIC LAW WITH A HUMAN FACE 79 (1998).
  61. Id. at 81–83.
  62. Gabrielle Marceau, WTO Dispute Settlement and Human Rights, 13 EUR. J. INT’L L. 753, 754 (2002).
  63. Id.
  64. Deva, supra note 40, at 22–23.
  65. Id. at 24.
  66. WTO members that have signed onto the GPA include: Armenia; Canada; Austria; Belgium; Denmark; Finland; France; Germany; Greece; Ireland; Italy; Luxemburg; the Netherlands; Portugal; Spain; Sweden; the United Kingdom; Cyprus; Czech Republic; Estonia; Hungary; Latvia; Lithuania; Malta; Poland; Slovak Republic; Slovenia; Bulgaria; Romania; Croatia; Hong Kong, China; Iceland; Israel; Japan; Republic of Korea; Liechtenstein; Republic of Moldova; Montenegro; Netherlands with respect to Aruba; New Zealand; Norway; Singapore; Switzerland; Chinese Taipei; Ukraine; United States. Parties, Observers and Accessions, WORLD TRADE ORG., https://www.wto.org/english/tratop_e/gproc_e/memobs_e.htm [https://perma.cc/28SWRMER] (last visited Jan. 19, 2018). All WTO members are eligible to accede to the GPA. Id. At present, ten WTO members are in the process of acceding: Albania, Australia, China, Georgia, Jordan, Kyrgyz Republic, Oman, Russian Federation, Tajikistan, and the former Yugoslav Republic of Macedonia. Id. Five other WTO members have undertaken commitments, in WTO accession protocols, to initiate accession to the GPA: Afghanistan, Kazakhstan, Mongolia, Saudi Arabia, and Seychelles. Id.
  67. Victor Mosoti, The WTO Agreement on Government Procurement: A Necessary Evil in the Legal Strategy for Development in the Poor World?, 25 U. PA. J. INT’L ECON. L. 593, 596 (2004).
  68. Daniel E. Schoeni, A Hidden Statutory Bar to Private Causes of Action for Breaches of the WTO’s Agreement on Government Procurement, 37 U. PA. J. INT’L L. 295, 317–18 (2015). In developed countries, the global market is created from the fact that the expenditure on public procurement of goods and services usually makes up an average of fifteen to twenty percent of the gross domestic product. Sangeeta Kohorana & Sujitha Subramanian, Potential Accession to the WTO Government Procurement Agreement: A Case-Study on India, 15 J. INT’L ECON. L. 287, 287 (2012).
  69. Agreement on Government Procurement, WORLD TRADE ORG., http://www.wto.org/english/tratop_e/gproc_e/gp_gpa_e.htm [https://perma.cc/C74S-CFRW] (lasted visited Jan. 19, 2018).
  70. McCrudden, supra note 12, at 14.
  71. Paul J. Carrier, Sovereignty Under the Agreement on Government Procurement, 6 MINN. J. GLOBAL TRADE 67, 93 (1997).
  72. Reich, supra note 18, at 334.
  73. Id.
  74. Id. at 335.
  75. Id. at 334.
  76. Sue Arrowsmith, Towards a Multilateral Agreement on Transparency in Government Procurement, 47 INT’L & COMP. L. Q. 793, 795 (1998).
  77. Id.
  78. See generally id. at 795–96.
  79. Id.
  80. Id. at 797–814.
  81. Reich, supra note 18, at 334.
  82. Id. at 334–35.
  83. See id. at 335.
  84. 3 the WTO Can … Stimulate Economic Growth and Employment, WORLD TRADE ORG., https://www.wto.org/english/thewto_e/whatis_e/10thi_e/10thi03_e.htm [https://perma.cc/JR5V-KGZP] (last visited Jan. 29, 2018).
  85. See generally GPA art. IV (looking at the requirement for all parties to treat all other parties’ suppliers no less favorably than their own).
  86. See generally GPA arts. XX, XXII, XIX.
  87. See generally GPA art. II.
  88. Jean Heilman Grier, Recent Developments in International Trade Agreements Covering Government Procurement, 35 PUB. CONT. L.J. 385, 388 (2006).
  89. Id. at 389. Three elements are used to specify the coverage under the annexes: entities covered, thresholds used, and exclusions. Id. The United States Annex I to the GPA lists the federal government agencies and entities that will procure in accordance to the Agreement. This annex shows that all the U.S. executive branch agencies fall under the provisions, but not Congress or the Judiciary branch. GPA Annex 1. Annex 2 then lists the thirty-seven states that also adhere to the Agreement. GPA Annex 2. Annex 4 then lists the services that will be excluded from the coverage of the GPA, such as transportation services and dredging. GPA Annex 4.
  90. For example, the Buy American Act of the United States (BAA) encourages the U.S. federal government to buy items manufactured in the United States instead of importing from another country. Buy American Act, 41 U.S.C. §§ 8301–8305 (2012).
  91. See generally id.
  92. Christopher F. Corr & Kristina Zissis, Convergence and Opportunity: The WTO Government Procurement Agreement and U.S. Procurement Reform, 18 N.Y.L. SCH. J. INT’L & COMP. L. 303, 319 (1999).
  93. Id.
  94. U.S. GOV’T ACCOUNTABILITY OFF., GAO-17-168, GOVERNMENT PROCUREMENT: UNITED STATES REPORTED OPENING MORE OPPORTUNITIES TO FOREIGN FIRMS THAN OTHER COUNTRIES, BUT BETTER DATA ARE NEEDED (2017) (disclosing the United States—federal and other GPA covered entities—spent around $837 billion on procurement covered by the GPA).
  95. See generally FAR 25.
  96. Corr & Zissis, supra note 92, at 306.
  97. Id.
  98. Id. at 307.
  99. See Buy American Act, 41 U.S.C. §§ 8301–8305 (2012).
  100. See generally 19 U.S.C. §§ 2501–2581 (2012).
  101. 41 U.S.C. § 8302(a)(1) (2012).
  102. 41 U.S.C. § 8302(a)(2)(B)–(C).
  103. Corr & Zissis, supra note 92, at 321. The New Jersey local public contracts law is an example; it provides a section on using American goods and products wherever possible. N.J. STAT. ANN. § 40A:11–18 (West 1982).
  104. GPA art. IV.
  105. See 19 U.S.C. § 2511. However, it is also within the USTR’s power to add nonsignatories to the GPA, such as underdeveloped countries, to the list. 19 U.S.C. § 2511(b)(1)–(4). The TAA waiver provisions opened a large amount of government contracts to become available for contractors in GPA members’ countries. See 19 U.S.C. §§ 2501–2582.
  106. In order to qualify, the member must have a product that is either wholly produced or manufactured in that country or has been “substantially transform[ed]” into a new article with a distinct name, character, or use in that country. 19 U.S.C. § 2518(b). The list of the waiver available countries is at FAR 25.401.
  107. See Corr & Zissis, supra note 92, at 307.
  108. See generally GPA U.S. Annex 1-5.
  109. Corr & Zissis, supra note 92, at 349.
  110. Schoeni, supra note 68, at 298.
  111. See 19 U.S.C. § 2512(a) (2012).
  112. See 19 U.S.C. § 2512(a)(1)(A).
  113. Corr & Zissis, supra note 92, at 348–49.
  114. Id. at 349.
  115. See GPA art. XXII (stating that a decision to adopt an amendment and to submit it for acceptance by the Parties must be by consensus; generally, an amendment enters into force in respect to Parties that accept it when two-thirds of the Parties accept).
  116. See GPA art. XXII (requires a consensus for changes, meaning that countries must compromise with each other to reach the two-third mark).
  117. GPA art. VIII(4)(a)–(f ).
  118. Id.
  119. For example, within the United States, prior to congressional approval of the GPA, there was wide concern about the appropriate role that labor standards should have played in the negotiation of the WTO agreements because the standards did not appear to be a main focus. McCrudden, supra note 12, at 21.
  120. See generally FAR 9.4.
  121. See FAR 9.402.
  122. FAR 9.406-4, 9.407-4.
  123. See Paul H. Gantt & Irving R. M. Panzer, The Government Blacklist: Debarment and Suspension of Bidders on Government Contracts, 25 GEO. WASH. L. REV. 175, 177 (1957).
  124. Todd J. Canni, Shoot First, Ask Questions Later: An Examination and Critique of Suspension and Debarment Practice Under the FAR, Including a Discussion of the Mandatory Disclosure Rule, the IBM Suspension, and Other Noteworthy Developments, 38 PUB. CONT. L.J. 547, 552 (2009).
  125. Id. at 553.
  126. FAR 9.407-1(b)(1).
  127. FAR 9.407-4(b).
  128. Id.
  129. Canni, supra note 124, at 553.
  130. FAR 9.406–4(a)(1).
  131. FAR 9.406–3(d)(3).
  132. FAR 9.406–3(c).
  133. Canni, supra note 124, at 553. The other two types of debarment in the U.S. system are de facto debarment and statutory debarment; a de facto debarment refers to the repeated denial of contracts to a contractor that the agency finds non-responsible. JOHN CIBINIC, JR. & RALPH C. NASH, JR., FORMATION OF GOVERNMENT CONTRACTS 500 (3d ed. 1998) (discussing the concept of de facto debarment and recognizing that multiple non-responsibility determinations may be tantamount to a debarment). Despite not involving official suspension or debarment from a contracting officer’s decision, a de facto debarment is essentially the same thing because it repeatedly denies the contractor contracts for responsibility concerns—mirroring the effect of actual debarment. Canni, supra note 124, at 554. One the other hand, statutory debarment refers to the congressional enactments that provide the basis for debarring a contractor and usually exists as a mandate to debar for specific conduct or identifying a certain conduct for possible debarment. Id. at 554–55.
  134. See Canni, supra note 124, at 555 (referring to the power vested in the SDO, not the court, to suspend or debar).
  135. See generally Canni, supra note 124, at 553.
  136. Id.