February 04, 2019 Public Contract Law Journal

Putting Federal Suspension & Debarment Officials in the Driver’s Seat : Empowering S&D Programs to Efficiently Save Taxpayer Dollars

by Corey Garlick

Corey Garlick is a Law Clerk at Pension Benefit Guaranty Corporation, Office of General Counsel, General Law and Procurement Group in Washington, DC. He is awaiting the February 2019 District of Columbia Bar exam results. Mr. Garlick is a graduate of The George Washington University Law School, where he was the Projects/ Symposium Editor of the Public Contract Law Journal. Mr. Garlick previously received a Bachelor of Science, Political Science, cum laude from California State University, Fullerton in 2014. During law school, Mr. Garlick was a Law Clerk at the General Services Administration, Suspension and Debarment Division; a Law Clerk at the Environmental Protection Agency, Suspension and Debarment Program; and a Student Attorney in the Jacob Burns Community Legal Clinics. He also served as a Research Assistant to Professor Neil H. Buchanan. Mr. Garlick thanks Professor Karen Da Ponte Thornton, Director of the Government Procurement Law Program at The George Washington University Law School, for her helpful guidance throughout the writing process.

I.  Introduction

The U.S. federal government is the largest buyer of goods and services in the world,1 spending about one trillion dollars per year on federal contracts and grants.2 About one out of every six federal tax dollars spent goes to a government contractor.3 Today, especially, with the Trump Administration’s $4.4 trillion budget proposal that includes a $300 billion increase for both domestic and military spending,4 it is crucial for the United States to have active suspension and debarment (S&D) programs to prevent fraud, waste, and abuse.

The suspension and debarment system is designed to protect taxpayer dollars by ensuring the government is working only with honest, responsible, and competent contractors.5 However, not all agency suspension and debarment programs are active, properly staffed, properly trained, and equipped with the necessary resources to carry out their missions efficiently. When one agency fails to properly pursue suspension and debarment actions, the rest of the government is vulnerable to waste, fraud, and abuse. On the one hand, if one bad actor flies under the radar of an inefficient program, that contractor is likely to receive additional federal funds as well as submit bids and proposals for new contracts. On the other hand, if a program lacking the necessary resources and trained staff unlawfully suspends or debars a government contractor, that contractor faces an economic death sentence and will likely be put out of business.

To ensure both taxpayer funds and government contractors are protected sufficiently, suspension and debarment programs must have trained staff acting as impartial fact-finders with agency-specific policies and procedures. Additionally, program staff must be knowledgeable about the applicable Federal Acquisition Regulation (FAR) provisions regarding reporting actions through the System for Award Management (SAM) and Federal Awardee Performance and Integrity Information System (FAPIIS) enabling effective government-wide notice of contractors faced with suspension and debarment actions.

After providing a brief overview of the U.S. federal suspension and debarment system, this article examines three instances where the government likely could have prevented waste, fraud, and abuse if suspension and debarment programs across the executive branch were structured properly and equipped with the necessary staff, training, and resources. The first instance is the United States Agency for International Development’s (USAID) suspension of one of its largest contractors, International Relief and Development (IRD). This article contends that if USAID properly organized its suspension and debarment program to avoid outside influence and conflicts of interest, the suspension of IRD and subsequent scrutiny of USAID may have been avoided. The second instance details the lack of resources throughout the Department of Homeland Security’s (DHS) suspension and debarment program. The third and final example this article examines is the areas where the Interagency Suspension and Debarment Committee (ISDC) can improve and expand on to become a pillar in the suspension and debarment community.

This article argues that, for suspension and debarment programs to be more efficient and active, (1) suspension and debarment programs across the federal government must be impartial fact-finders, equipped with the necessary staffing, training, resources; and (2) the ISDC must be more active and visible.

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