April 07, 2021 Notes

The Tracks That Lead to Nowhere: Rerouting the Ineffective Contractor Integrity Mechanisms in the Washington Metropolitan Area Transit Authority

Amanda H. McDowell

Abstract

The Washington Metropolitan Area Transit Authority (WMATA) is influenced by both the federal system and the state systems it touches, and it also engages in a range of procurement contracts. The lack of oversight and enforcement within this procurement system, however, illustrates the dangerous and costly effects of corruption in local-level procurement. Like the federal procurement system—and unlike many state procurement systems, such as Virginia, Maryland, and the District of Columbia—WMATA has a sophisticated procurement regulatory regime. Also like these systems, WMATA faces issues of contractor misconduct: fraud and bribery to name a few. WMATA has responsibility mechanisms, including suspension and debarment procedures, in place to address these issues. However, WMATA’s mechanisms are dramatically underused. In the last two years, at least three WMATA contractors have faced felony charges for conduct performed while working on WMATA contracts. Despite this, WMATA has not debarred a single individual or entity. This Note argues that the responsibility for the system’s failures lies not with WMATA’s regulations but with its structure and implementation. The author examines both the situational influences that demonstrate competing interests and priorities in debarment and the regulatory differences that contribute to WMATA’s lack of enforcement. The author identifies several structural differences that contribute to underenforcement, including WMATA’s use of a debarment panel system as opposed to a single, permanent Suspension and Debarment Officer. These conclusions demonstrate that having formalized regulations in place is not enough to establish a well-functioning procurement system. This Note proposes that WMATA implement a single Suspension and Debarment Officer to eliminate the practical burdens of a panel system when imposing debarment determinations, while preserving the panel system for the purposes of appellate review if a contractor wishes to challenge a determination to impose a debarment.

I. Introduction

“Human feces and bottles of urine . . . ; used condoms; significant amounts of trash and debris; broken glass; unsanitary elevators[,] and numerous overflowing trash cans”1 are all common sights in the stations and parking garages of the Washington Metropolitan Area Transit Authority (WMATA) Metro system.2 But these conditions are not due to a lack of funding for cleaning staff.3 In 2018 and 2019, WMATA’s Office of Inspector General investigated WMATA spending over a twenty-month period,4 during which WMATA spent over $2.2 million for janitorial services.5 Despite WMATA’s contract for daily janitorial services, trash and debris often went uncleaned for “days, weeks, and even months.”6 The investigation ultimately concluded that “[eighty-four] percent of the time contracted cleaning personnel were not performing their . . . cleaning duties.”7 In almost any procurement system, including WMATA’s, such conduct could trigger a debarment—but the contractor here, Community Bridge Incorporated, is presently eligible for future awards.8

Unfortunately, reports such as this are hardly uncommon, and they illustrate broader issues in state and local procurement systems.9 State, local, and regional governments award over $1 trillion in contracts per year,10 but their procurement systems are poorly regulated and wildly inconsistent.11 All fifty states engage in some type of contracting, resulting in concerns about the ethical use of taxpayer dollars across the country.12 Yet at least four states have no mechanism in place to ensure that their contractors are responsible,13 and even states that do have such mechanisms irregularly enforce responsibility requirements.14

Debarment is a responsibility mechanism that excludes a contractor from receiving public contracts for a set period of time—a drastic step by any accounts.15 Most consider alternatives to debarment “a good thing,”16 and recognize that, in most cases, debarment is, and should be, a last resort.17 As a result, more sophisticated procurement systems also incorporate mechanisms that serve as alternatives to debarment. But those alternatives are not always effective, and in many state and local jurisdictions, they may not exist at all.18 In those jurisdictions, what results is a system in which contractors are free to engage in corrupt and unethical practices, abusing taxpayer dollars, over and over again.

Like many other local jurisdictions, WMATA is a regional entity that has spent billions on public contracts in 2020 alone.19 However, unlike state and local counterparts, WMATA has sophisticated procurement regulations modeled after the federal system, but it lacks the capacity or infrastructure to actually support this model.20 Like the Federal Acquisition Regulation (FAR), WMATA’s Procurement Procedures Manual lays out formalized responsibility and exclusion mechanisms.21 At the federal level, FAR subpart 9.4 authorizes all federal Suspension and Debarment Officers (SDOs) to impose debarment “to protect the Government’s business interests from potential harm posed by individuals or entities whose conduct indicates either serious poor performance or a lack of business honesty or integrity.”22 Similarly, WMATA’s Procurement Procedures Manual provides specific requirements and factors to consider when evaluating contractor responsibility.23

WMATA’s regulations include both debarment and its common alternatives.24 Despite these regulations, WMATA faces headline after headline detailing contractor abuses ranging from undelivered goods to falsified records to fraudulent invoices.25 The list goes on, WMATA continues to lose money, and the underperforming contractors remain eligible for awards.26 In the last two years alone, at least three WMATA contractors have faced felony charges for their conduct while performing WMATA contracts.27 Yet each of those contractors remain technically eligible for future WMATA contracts.28 WMATA has a robust procurement regime, including a sophisticated debarment system and alternatives, which demonstrates WMATA’s regulatory ability to enforce contractor integrity.29 However, there is evidence that its debarment alternatives are not working, and, despite a litany of issues and scandals, WMATA has still never debarred anyone.

This Note identifies why WMATA’s responsibility regulations continue to fail, despite their sophistication, and proposes modifications to enforce necessary debarment actions. Specifically, this Note suggests that WMATA’s lack of enforcement stems not from its regulations, but from its structural use of a panel that holds all exclusionary power. Instead of a single chief debarment officer, as seen in the federal system, WMATA employs a panel of high-ranking officials that together hold all exclusionary power. But the Metro Debarment Panel requires at least three officials with a myriad of other professional obligations to meet and come to a consensus before a single party can be excluded.30 This places extreme procedural burdens on WMATA’s contractor integrity mechanisms, resulting in an otherwise well-regulated and a sophisticated system on paper becoming dysfunctional in practice. This Note proposes two solutions to begin enforcing contractor integrity within WMATA. First, WMATA should employ a single and permanent SDO with limited discretion to debar non–responsible contractors. Second, WMATA should transform the Metro Debarment Panel into a review forum to ensure fairness and remedy concerns about the SDO’s lack of discretion.

These solutions are based in part on the structure of the World Bank Sanctions system.31 Unlike the federal system, the World Bank’s two-tiered mechanism includes an investigative branch and an adjudicatory branch in the first tier, and an independent review body in the second tier.32 Once excluded by the first tier, contractors can contest their sanction at the Sanctions Board—a panel of officials that together serve as a final, non–appealable review forum.33 Using the World Bank Sanctions Board as a model, WMATA should transform the current Metro Debarment Panel into a review forum, which would minimize necessary procedural and structural changes and provide contractors with a consistent forum in which to challenges to exclusions.

Part II of this Note details WMATA’s structure and regulations, specifically in comparison to the jurisdictions that fund it, and how those jurisdictions may impact WMATA’s present ability to enforce its own regulations. This Part identifies the similarities between WMATA’s procurement regulations and those of the federal government. It also highlights WMATA’s use of the Metro Debarment Panel as a key distinguishing factor in enforcing integrity. Part III examines WMATA’s present ability to enforce contractor compliance and integrity. It further explains how this ability created a system where procurement officials have the regulatory power to exclude contractors but fail to use it. Finally, Part IV details the World Bank’s system, explains its advantages, and then recommends that WMATA model its own system after that of the World Bank by (1) employing a single, permanent SDO, and (2) transforming its Metro Debarment Panel into a review forum for exclusionary decisions made by that SDO.

II. A System Spanning Multiple Systems: How WMATA Fits into a Regime of Jurisdictions with Competing Interests

WMATA holds a unique position as a regional authority. Its jurisdiction is not limited to a single forum like the federal or individual state systems.34 Rather, WMATA operates in three separate and independent jurisdictions but also functions as an independent entity.35 Specifically, WMATA is funded by and operates in Virginia, Maryland, and the District of Columbia (D.C.).36 This Note argues that WMATA’s multi-jurisdictional span impacts its ability to effectively enforce its regulations. All of these jurisdictions have unique procurement regulations and debarment lists, and the differences among them demonstrate that each jurisdiction may have independent interests when it comes to contractor responsibility.37 WMATA also receives federal funding, and as a result must enforce additional responsibility requirements that mirror those of the federal system.38 The following sections detail differences in the procurement regimes in Virginia, Maryland, D.C., and the federal government to demonstrate how those systems influence WMATA’s own procurement regime. Then, this Note identifies WMATA’s use of the Metro Debarment Panel as a key difference in WMATA’s enforcement procedures and explains why that panel precludes integrity enforcement.

A. Money Talks: Where WMATA Gets Its Funding, and What That Means in Terms of Contractual Spending

Because WMATA’s contracts are funded by multiple jurisdictions, it is important to understand how those funds, and the jurisdictions that provide them, influence WMATA’s enforcement against contractor misconduct. WMATA’s budget for fiscal year 2019 was $3.2 billion, almost three-quarters of which comes from jurisdictional contributions.39 Just over half of this—$1.8 billion—comes from the state and local jurisdictions in which WMATA operates.40 The federal government provides an additional $500 million in grants.41 Contributions from these states and the federal government carry unique priorities, particularly regarding contractor responsibility. Each of these jurisdictions has individual responsibility regulations that permit debarment under varying circumstances and provide excluding officials different amounts of discretion.

For example, debarment systems in Virginia42 and Maryland43 prioritize flexibility and discretion over heavy regulation. In contrast, the debarment system in D.C. emphasizes formalized processes and protections, like notice and opportunity to respond, that make it harder to exclude parties.44 Funding from all of these jurisdictions necessarily influences WMATA, particularly with regard to the interests of those jurisdictions. Further, WMATA’s procurement officials represent those different jurisdictions, which aggravates potential tensions between those interests.45 WMATA may also answer to Virginia, Maryland, and D.C. in their respective courts, where an excluded contractor could theoretically appeal a debarment decision.46 In the context of debarment, this could pose forum shopping problems for WMATA, as contractors may be more likely to appeal debarment determinations in courts that are more favorable to contractor interests (D.C.) as opposed to courts in jurisdictions with more flexibility that will defer to government or agency determinations (Virginia).

In many state and local jurisdictions, where fewer resources are devoted to public procurement, more flexibility in a procurement system may be beneficial because it allows governments to enforce contractor integrity without significant regulatory and procedural burdens. However, WMATA has sophisticated procurement regulations and significant resources dedicated to procurement, suggesting that it may not need the same level of flexibility. Further, if WMATA is to separate its own interests from the states that fund it, WMATA may need more structure to prevent those competing interests from stalling enforcement.

B. Looking in a Mirror: Striking Similarities in Debarment and Responsibility Findings of the Federal Government and the WMATA Procurement Regulations

Along with funding from its component jurisdictions, WMATA also receives funding from the federal government through annual grants.47 As a condition of these grants, grantees like WMATA “must manage and administer [its programs] in a manner so as to ensure that Federal funding is expended and associated programs are implemented in full accordance with U.S. statutory and public policy requirements . . . .”48 Specifically, federal grants subject WMATA to a host of additional regulations under Title 2 of the Code of Federal Regulations Part 200 (Uniform Guidance).49

The Uniform Guidance shapes WMATA’s general procurement standards, including the restrictions on underperforming parties that should be “debarred, suspended, or otherwise excluded from or ineligible for participation in Federal assistance programs or activities.”50 More specifically, WMATA “must award contracts only to responsible contractors possessing the ability to perform successfully under the terms and conditions of a proposed procurement . . . consider[ing] . . . contractor integrity, compliance with public policy, record of past performance, and financial and technical resources.”51 In practice, this means that WMATA must follow federal exclusions listed in the System for Award Management at SAM.gov, the federal database of excluded parties,52 and must enforce federal responsibility standards for contractors or lose its federal funding.53 It is therefore not surprising that WMATA’s regulations on contractor debarments and responsibility determinations are almost identical to those of the federal procurement system.54

At the federal level, the FAR implements a uniform system governing federal suspensions and debarments.55 Before the FAR, suspensions and debarments were handled on an agency-by-agency basis, which led to problems stemming from lack of uniform procedures and lack of reciprocity.56 The FAR was designed to address these concerns, mandating uniform debarment provisions across federal agencies, and it largely accomplishes this.57 Each year, the federal government publicly excludes a few thousand contractors, ensuring that contractors that have abused federal funds are, for a period of time, ineligible to receive federal contracts.58 However, the same cannot be said for WMATA’s strikingly similar regulatory scheme, which currently does not exclude a single contractor.59

Under both the FAR and WMATA’s Procurement Procedures Manual, a contracting individual or entity may be debarred if it is in the public interest to prevent that contractor from doing business with the government or WMATA.60 This is because public interest: “(1) safeguard[s] public funds by excluding contractors who may be nonresponsible from contracting with the government and (2) avoid[s] economic injury to contractors who might technically be excludable but are fundamentally responsible and safe for the government to contract with.”61 The FAR and WMATA lay out identical specific grounds for debarment,62 in addition to catchall provisions that permit debarment where a contractor has committed “any other offense indicating a lack of business integrity or honesty.”63

Debarment under both systems is usually discretionary.64 Contractors who meet one or more causes for debarment may be eligible for exclusion, but they are not required to be excluded.65 Once debarments are imposed, debarring officials in both systems can consider mitigating factors when determining whether debarment is appropriate.66 Such factors include internal control mechanisms, cooperation, remedial measures, other potential collateral consequences, reversal of a criminal or civil conviction, or any other reason the debarring official may deem pertinent.67 Further, a debarring official can reduce the length of a debarment: (1) if there is new evidence of the contractor’s alleged misconduct; (2) if the judgment serving as a basis for the debarment is reversed; (3) if the contractor’s management team has significantly changed since the debarment; or (4) if there are “other appropriate reasons” to lessen the sentence.68 Already-debarred contractors can continue performing their other existing federal or WMATA contracts, and may even be eligible to receive new contracts if a compelling need arises.69 However, even if a contractor’s debarment term changes or a compelling need to award a contract despite debarment is assessed, the debarred entity is publicly placed on an excluded parties list, located at SAM.gov and wmata.com, respectively.70

Accordingly, WMATA’s decision not to enforce responsibility is not due to a difference in the grounds for debarment or exclusion that prevents WMATA’s enforcement. Additionally, WMATA’s responsibility determination mechanisms provide an alternative to debarment and show that WMATA recognizes contractor responsibility as an important safeguard. This comparison further demonstrates that WMATA has the necessary tools to reach such determinations. However, there is one key difference between the two systems: WMATA uses a panel rather than an individual to enforce these actions.71 The next section details how that panel operates and why WMATA’s use of a panel system likely places procedural burdens on the ability to impose responsibility standards.

C. Too Many Conductors on the Train: The Metro Debarment Panel System

Rather than a typical hierarchical structure where a reporting employee provides documents to an SDO who then makes a determination as to a contractor’s fate, WMATA employs a more convoluted panel system to make exclusionary determinations.72 Though this system has definite advantages, it is also slower to function.

At the federal level, enforcement is a relatively straightforward process.73 A federal SDO can receive information regarding contractor responsibility through investigations, prosecutors, competitors, press, or any other reliable source, and this evidence can trigger a suspension or debarment action.74 Ultimately, the SDO considers whether a preponderance of the evidence presented both for and against the contractor demonstrates sufficient grounds to exclude a party.75 The SDO then issues a written determination of findings and, if applicable, places the company or individual on the public debarment list.76

For its part, WMATA similarly separates the investigation and enforcement functions: Contracting Officers conduct preliminary findings, but their authority stops short of making final determinations.77 Instead, the Contracting Officer make referrals78 of suspension or debarment to the Chief Procurement Officer, who oversees what is known as the Metro Debarment Panel (the Panel).79 The Panel is a group of officials who review evidence and decide ultimately whether to debar a contractor or reinstate an already-debarred contractor.80

This distinguishes WMATA’s enforcement regime from the federal system, which places all of the power and discretion into the hands of a single SDO, because debarment decisions at WMATA are made by consensus of multiple authorities.81 The Panel must include representatives from: (1) the Office of Management and Budgeting Services under the Chief Financial Officer of WMATA; (2) Management, Audits, Risk and Compliance Office under the Office of Internal Compliance of WMATA; (3) The Office of Government Relations under the Officer of External Relations of WMATA; and (4) “a representative from either the Federal Transit Administration . . . or United States Department of Transportation,” in addition to (5) the Chief Procurement Officer, who serves as the Chair of the Panel.82 To make a determination, at least three members of the panel must be present and the decision is made by a simple majority vote.83

Like the adage that “two heads are better than one,” WMATA’s procurement process prioritizes a consensus of opinion from multiple authorities over a determination made by a single officer after independently reviewing evidence. WMATA is not necessarily wrong to place exclusionary power in the hands of a group. Group decisions are often more likely to be fully supported by evidence,84 and unsupported exclusionary determinations may be subject to judicial reversal.85 Further, panels of decisionmakers are less likely to be improperly influenced by external factors.86

However, a meeting of the minds—or a meeting in general—is not always easy. None of the officials sitting on the Metro Debarment Panel are exclusively debarment officers, or even compliance officials; they all have other duties and responsibilities besides exclusionary decisions.87 And with WMATA’s already-complacent attitude toward non–responsibility,88 meetings of the Metro Debarment Panel to reach those decisions are unlikely to be a priority for the Panel’s members. Further, a group setting inherently reduces individual accountability which compounds the issue of deprioritized enforcement actions.

Practically, this means that debarment in the WMATA system may be harder to enforce than in the federal system, despite mirroring regulations. In comparison to the federal debarment list, which currently has thousands of entities and individuals presently excluded,89 the WMATA debarment list has none.90 Even considering the difference in spending power between WMATA and the federal government, this disparity is alarming, and it demonstrates that WMATA’s current integrity enforcement system is not working as it should.

III. Talking the Talk but Not Walking the Walk: Addressing Concerns About WMATA’s Sophisticated Exclusion Regime but Lackluster Enforcement

Part III details WMATA’s failure to enforce its own compliance regulations, despite its regulatory power to debar contractors and awareness of this power by those that hold it. WMATA has expressed concern about the constant reports of corruption by contractors and frequently condemns such conduct.91 WMATA officials also know of WMATA’s procurement regulatory regime, including their ability to debar or otherwise exclude contractors for such misconduct.92 However, the next section explains that despite WMATA appearing to take contractor integrity seriously, it fails to enforce integrity compliance on its own. The following section then argues that WMATA fails to act because of its overlap with other enforcement regimes, including the federal debarment system as well as the criminal justice system. It seems that WMATA depends on those other systems to debar those contractors for the purposes of WMATA contracts rather than officially debarring them itself.

A. WMATA’s Awareness of Contractor Responsibility as a Prevalent Issue and Its Regulatory Power to Address It

In 2017, WMATA recruited an esteemed “internal watchdog” from the State Department, Geoff Cherrington, to serve as its new Inspector General.93 In response, Cherrington, completely unaware that WMATA had an Inspector General position, said “[w]ell, I think Metro needs an [Inspector General] . . . I don’t think it’s lost on anyone that Metro has its problems.”94 Perhaps it is unsurprising that Cherrington was unaware of the position prior to his appointment, as he is only the second person to hold it.95 Having an Inspector General position is an important step in Metro’s compliance system, but it has not been particularly effective. In the past, WMATA’s Office of Inspector General rarely made public details of fraud or corruption investigations, leaving citizens frustrated by what appeared to be inaction in the face of blatant corruption.96 When he accepted the role, Cherrington committed to changing this by making cases more public and by opening a hotline for employees and citizens to report abuses.97 That hotline receives about 400 tips per year, ten percent of which lead to opened cases.98 But since 2017, WMATA has issued only six substantive news reports relating to contractor abuses, and fewer than ten general audit reports per year, despite receiving thousands of tips.99

Cherrington also promised to be proactive in his role as Inspector General, stating “[w]e can’t be the Maytag repairman, waiting for the next hotline call,” and WMATA backed up his statement.100 Cherrington’s position is supported by thirty-four staff members, including twenty auditors and seven investigators,101 all of whom report directly to him; Cherrington himself reports directly to WMATA’s Board of Directors.102 Combined with the appointment of seven officials to sit on the Metro Debarment Panel, WMATA allocates a significant number of positions to ensure contractor responsibility.103 WMATA’s stated goal in doing so was to “get a return on investment for [their] office where [they’re] bringing back far more than it costs” to ensure integrity.104 This implies that, at the time of Cherrington’s appointment, WMATA intended to place more emphasis on its own formal mechanisms, including debarments. However, that mechanism has not been used, and statements from Cherrington and others indicate that it is not for lack of awareness.105

In September 2018, WMATA formally suspended Potomac Construction Inc. after a Maryland grand jury indicted its Vice President, Hardutt Singh, for attempting to bribe WMATA’s manager of the Disadvantaged Business Enterprise Department.106 In light of this indictment, WMATA’s Chief Procurement Officer stated:

Indictment for bribery is a basis for suspension. The actions identified in the indictment raise additional concerns regarding Mr. Singh’s and Potomac Construction Inc.’s business practices that are so serious and compelling in nature that it affects Potomac Construction Inc.’s present responsibility to conduct business with WMATA in the future, and provide an independent basis for suspension.107

This acknowledgment alone demonstrates that WMATA officials in charge of procurement and procurement-related decisions are aware of the procedural safeguards WMATA has in place, and how they should operate in practice.108 In reality, however, WMATA traditionally leaves enforcement to external processes rather than exercising its own enforcement authority. 109 The next section discusses why that approach is neither always effective nor in WMATA’s best interests.

B. Turning a Blind Eye: WMATA’s Overreliance on Other Systems to Document and Enforce Compliance Sanctions

At the federal level, contractor responsibility factors are heavily documented, and exclusion records are meticulously maintained.110 In a database called the Federal Awardee Performance and Integrity Information System, contracting officers can (and may be required to) view details about all “civil, criminal, and administrative proceedings involving federal contracts [resulting] in a conviction or finding of fault, as well as all terminations for default, administrative agreements, and nonresponsibility determinations . . . within the past five years for all entities holding a federal contract or grant worth $500,000 or more.”111 Because WMATA is partially funded by the federal government,112 WMATA contracts technically fall within the scope of federal data collection.113 However, it is unclear if federal investigators take the time or effort to compile such information on WMATA contractors.

While WMATA keeps its own records, they are significantly more limited than those of the federal system.114 For example, non–responsibility findings are documented by “placing in the contract file a determination of non–responsibility, which shall state the basis for the determination . . . [and] documents and reports supporting a responsibility determination, including any pre–award survey reports and applicable information.”115 However, it is not clear what happens to that information once placed in the contract file, and there is no evidence that it is ever compiled into a publicly-available database. In practice, this likely means that WMATA’s documentation and record-checking procedures rely on federal databases significantly.116

Beyond documentation, it seems that WMATA’s exclusionary practices also rely on external systems to make and enforce necessary integrity determinations. As mentioned above, in September 2018, WMATA publicly suspended Potomac Construction Inc. and its Vice President, Hardutt Singh, after a Maryland state court indicted Singh for bribery on a WMATA contract. 117 However, in February 2019, a jury acquitted Singh of all charges.118 At trial, Singh’s attorney argued that because Singh never actually paid any money pursuant to the bribe, he could not be convicted of bribery.119 However, Singh never denied attempting to bribe.120 Singh’s acquittal indicates only that prosecutors were unable to prove beyond a reasonable doubt that he committed an act of bribery.121 In light of his acquittal, WMATA revoked Singh’s and Potomac Construction’s suspensions and reinstated their eligibility for awards.122

This raises concerns about WMATA’s reliance on external systems to make exclusionary determinations. While conviction or civil judgment may result in mandatory debarments,123 acquittal does not resolve a discretionary debarment decision.124 WMATA can debar a contractor for “any . . . cause of so serious or compelling a nature that it affects the present responsibility of an Authority contractor or subcontractor.”125 In Singh’s case, though the Maryland prosecutors did not have evidence to prove guilt beyond a reasonable doubt, WMATA almost certainly could exclude Singh and Potomac because Singh more likely than not committed an offense affecting his present responsibility by attempting to bribe a WMATA official.126 The fact that Singh never denied attempted bribery should itself be enough to raise concerns for WMATA. But instead of enforcing its own contractor integrity regulations, WMATA relied on the Maryland criminal justice system to protect its interests.127 When it failed, WMATA simply looked away.128

Despite the revolving door of headline news stories,129 WMATA’s procedures rely on other systems to weed out non–responsible contractors, resulting in a scarecrow-like system that has all the linguistic appearance of the federal system, but the force of an inanimate bundle of hay. Combined with the procedural burdens of the Metro Debarment Panel, WMATA is systematically disincentivized to take independent action in enforcing its own responsibility standards. Employing a single SDO and a panel only for the purposes of appellate review will alleviate some of these structural barriers.

IV. Proposed Solutions: A Streamlined Process for Decision-Making by Implementing a Single SDO and Review Panel

This Note proposes two solutions to increase contractor responsibility enforcement in the WMATA system. First, WMATA should employ a single SDO to review all cases handed down by the Chief Procurement Officer. That SDO will exercise limited discretion in enforcing debarment decisions. This will compel WMATA to enforce its own responsibility standards, remove the procedural burdens of requiring a panel consensus, and ultimately eliminate WMATA’s ability to shift the burdens to external systems. Second, WMATA should maintain its current Debarment Panel as an appellate forum rather than a mechanism to make initial determinations. Allowing a panel to review decisions made by the SDO will remediate concerns about arbitrary or erroneous decisions, and will also provide a clear forum in which challenges can be brought.

A. The World Bank’s Two-Tiered Approach as a Framework

These recommendations look to the World Bank Sanctions System as a model.130 The World Bank’s debarment system, unlike the federal system, implements a two-tiered mechanism involving an investigative branch and an adjudicatory branch in the first tier, and an independent review body in the second tier.131 These tiers address different concerns about the exclusionary process, including evidence-based determinations and fairness complaints.

Within the first tier, the Integrity Vice Presidency investigates contractors and compiles evidence of misconduct.132 The Office of Suspension and Debarment then “impartially review[s] accusations against respondent firms and individuals” and must temporarily suspend or debar those respondents if it finds sufficient evidence.133 Debarment decisions are ultimately made public when a final sanction is imposed.134

Within ninety days, a respondent may appeal the first tier’s determination to the Sanctions Board, which serves as a final, non–appealable review forum.135 The Sanctions Board employs a panel of seven representatives external to the World Bank,136 appointed by the Executive Directors of the World Bank Group, the International Finance Corporation, and the Multilateral Investment Guarantee Agency.137 Acting like a panel of judges, these Sanctions Board members hold administrative hearings “either upon a party’s request or at the discretion of the Sanctions Board Chair.”138 The Sanctions Board is not required to defer to the recommendations of the Office of Suspension and Debarment—rather, it conducts an independent de novo review to conclude whether “it is ‘more likely than not’ that the respondent engaged in a sanctionable practice.”139 If so, the Sanctions Board will publicly impose an appropriate sanction, which often includes debarment.140

Separating the functions of investigation and decision-making through the Integrity Vice Presidency and the Office of Suspension and Debarment ensures that decisions are unbiased and factually supported. This means that debarment is less likely be used as punishment, and will instead “protect the funds entrusted to the World Bank.”141 Further, having the Sanctions Board as a review panel offers “the firms and individuals involved an opportunity to respond to the allegations against them.”142 This built-in review forum is unique to the World Bank and alleviates many of the due process concerns that plague the federal debarment system, as it provides contractors with notice and the opportunity to respond before being publicly debarred.143

Adopting a similar approach for WMATA will alleviate the procedural and structural roadblocks that currently prevent WMATA from enforcing its own regulations. By hiring a single, permanent SDO, WMATA can allocate all exclusionary power to a single individual, rather than requiring consensus among a group of officials with other priorities. Additionally, by keeping the Metro Debarment Panel, but only as a review forum for the SDO’s decisions, WMATA can ensure fairness and due process to excluded contractors without sacrificing efficiency.

B. A Single and Permanent SDO as a Decision-Maker

The practical burdens of WMATA’s current panel system result in a non–functioning system. This Note proposes that WMATA reorganize its exclusionary process to incorporate a single, permanent SDO. A single, visible figure who is responsible for integrity enforcement will create greater accountability and require action in the face of a constant stream of headlines. Additionally, authorizing a single individual to exclude contractors will relieve the administrative burdens that the Panel currently faces and streamline the system. This centralization will result in “more uniform and predictable” practices, which ensure that the same facts are treated similarly, and will “adhere to similar procedural, evidentiary, or due process burdens.”144 A single decision-maker will also promote transparency for WMATA contractors and may aid WMATA in collecting and organizing its own data.145

WMATA faces many of the same challenges that the World Bank does, including the risks of corrupt influences from multiple sources, leading to concerns about too much discretion.146 Unlike the World Bank, however, WMATA should not reform its procurement regulations to require mandatory exclusions in all cases if there is sufficient evidence.147 Further, WMATA should not allow for the same level of discretion and flexibility that is permitted at the federal level because WMATA faces different concerns than the federal government.148 Exclusion from WMATA contracts does not render a contractor ineligible for all federal contracts the way that debarment by a single federal agency would.149 It is therefore unlikely that debarment by WMATA would be disastrous to the survival of an entire business.150 Additionally, too much discretion raises concerns with WMATA that are not present in the federal system. SDOs in the federal system routinely debar contractors if it is in the best interests of the government, demonstrating that their discretion does not always deter or prevent exclusion.151 WMATA, on the other hand, never uses these same mechanisms to deal with contractor responsibility abuses; when it does, those in charge have used their discretion to impose lesser sanctions, if any at all.152 The litany of contractor misconduct demonstrates that this method is failing WMATA and wasting millions of taxpayer dollars.

Accordingly, WMATA’s SDO should exercise less discretion, which would be more akin to the World Bank model than the federal model.153 WMATA’s SDO should be tasked with reviewing all allegations of contractor misconduct that the Chief Procurement Officer believes trigger a debarment action. If the SDO finds clear and convincing evidence to support a finding of contractor misconduct, and there are no mitigating factors that outweigh the risks to WMATA funds in the future, the SDO should be required to exclude that contractor. Vesting all exclusionary power into a single SDO will provide for a more efficient system in which “a single decision-maker is able to make a single decision about a contractor’s eligibility.”154 Limiting the SDO’s discretion will also prevent the current cycle of inaction by WMATA officials, and it will compel WMATA to enforce its own regulations.

Providing less discretion to the WMATA SDO may lead to a narrowing of the competition pool. To remedy these concerns, WMATA should incorporate two safeguards: first, an exception to allow awards to excluded contractors if in the best interest of WMATA (taken from the federal system),155 and second, transformation of the current Metro Debarment Panel into an internal review system and appellate forum (taken from the World Bank model).156

C. Transformation of the Metro Debarment Panel into a Review Forum for Arbitrary and Erroneous Decisions Made by the SDO

Recognizing that the panel system is not without merit, the Metro Debarment Panel should be converted into an appellate review forum. Contractors who receive notice of debarment should be provided a ninety-day window to appeal their case to the entire Metro Debarment Panel. Until that ninety-day window has expired, the contractor’s debarment should remain effective but confidential within WMATA in order to preserve the rights of those contractors to appeal those decisions. This system will maintain the benefits of a multi-person review and minimize WMATA’s restructuring. In addition, modifying the Metro Debarment Panel to serve as a review mechanism will simplify decision-making and provide for a review process for contractors who wish to challenge their exclusions.

This proposal would mimic the structure of the World Bank Sanctions Board, which reviews exclusionary determinations made by the SDO if appealed by the respondent within a set period of time.157 Though Sanctions Board decisions represent a small portion of World Bank cases and agreements,158 the Sanctions Board sometimes reaches different conclusions, which demonstrates the importance of an internal appellate review mechanism—something the WMATA system is currently lacking. A review panel will allow WMATA contractors to defend themselves before being publicly excluded, which will alleviate concerns about arbitrary decisions made by WMATA’s SDO.

A review panel is particularly important because multiple jurisdictions could theoretically hear these appeals in court. Virginia, Maryland, and D.C. courts all have jurisdiction to hear claims brought by or against WMATA generally.159 Further, under the federal system, all of the United States District Courts and the United States Circuit Courts of Appeals have jurisdiction to hear debarment appeals under the Administrative Procedure Act.160 However, such cases are uncommon.161 Debarment challenges are typically handled within the excluding agency because that agency has the necessary expertise and specialized knowledge to appropriately evaluate the measures necessary to protect the government’s interests.162 Further, courts review debarment challenges under an extremely deferential “arbitrary and capricious” standard, which discourages such challenges.163

Unlike the World Bank, WMATA is not a completely independent organization, but rather a regional entity with close ties to at least four different governments.164 WMATA, then, cannot itself strip away all jurisdiction from the courts of those governments, but it can and should implement its own administrative safeguards by requiring a final determination by WMATA before a contractor appeals to court. These safeguards would either require expiration of the proposed ninety-day window for appeal to the Metro Debarment Panel, or an affirmative decision by the Metro Debarment Panel to uphold the SDO’s exclusion of the contractor. This system accounts for the fact that WMATA, like federal agencies dealing with federal government contracts, likely has the necessary expertise and specialized knowledge necessary to most appropriately evaluate an exclusionary decision under its own regulations.

Requiring a final determination by WMATA before an appeal in court would also reduce the numbers of those appeals, which will in turn alleviate concerns about forum shopping. As mentioned above, the procurement regulations of Virginia, Maryland, and D.C. suggest that those jurisdictions may have independent priorities when it comes to enforcement decisions.165 By allowing any of them to hear appeals of WMATA exclusionary systems, forum shopping may become a problem when contractors are more likely to appeal in one jurisdiction over another purely because of higher changes of success. Because a final WMATA determination would be required before such an appeal, concerns about forum shopping will be minimized because appeals to a state court would become exceedingly rare. Reframing WMATA’s current Debarment Panel to serve as an independent appellate forum will provide an additional safeguard within the system that currently does not exist, clearing the path for WMATA to begin enforcement of its contractor integrity regulations.

V. Conclusion

WMATA spends billions of taxpayer dollars on contracts for various supplies and services. However, contractor fraud and corruption are likely to continue. To reconcile its spending and lack of enforcement with persistent contractor misconduct, WMATA must take steps to begin actively enforcing its own regulations. The proposed solutions of this Note offer mechanisms to replace the current system of effectively optional enforcement—a change that is essential for the future of WMATA. The issues of corruption and contractor misconduct jeopardize WMATA’s ability to function and enter into future contracts. But the implications of an ineffective system of suspension and debarment do not stop there. Every day, D.C. residents, commuters, and visitors rely on WMATA to travel to their respective destinations. Each and every one of these riders depends on a metro system that functions reliably, prioritizes safety, and serves as an efficient mode of transit. If that very system allows contractors to abuse their positions of power and responsibility with impunity, those assumptions that every WMATA rider makes every day must be called into question. Without those fundamental guarantees of safety, efficiency, and reliability, we can no longer expect—nor want—the public to place its trust in WMATA as an institution.

Endnotes

1. Office of Inspector Gen., Washington Metro. Area Transit Auth., MEAD No. 202153, Acceptance of Three OIG Reports (2020) (Audit of Metrorail Stations’ Garage Cleaning, Audit of WMATA’s SmarTrip Regional Partner Comparative Billing Statements for the Fiscal Years Ended June 30, 2019 and 2018) [hereinafter WMATA OIG Report].

2. Adam Tuss & Gina Cook, Feces, Overflowing Trash and Broken Glass: Report Finds ‘Filthy’ Conditions at Metro Parking Garages, NBC Wash. (Jan. 14, 2020, 2:03 AM), https://www.nbcwashington.com/news/local/feces-overflowing-trash-and-broken-glass-report-finds-filthy-conditions-at-metro-parking-garages/2199593 [https://perma.cc/Z4KD-3W2G].

3. See id.

4. WMATA OIG Report, supra note 1.

5. Id.

6. Id.

7. Id. In response, Deborah Washington, Chief Operating Officer of Community Bridge Incorporated, the contractor hired to perform these janitorial services, blamed the “largely absent” WMATA supervisors who failed to oversee the performance of work and delivery of supplies. See Adam Tuss, Metro Contractor: Don’t Blame Us for Dirty Parking Garages, NBC Wash. (Jan. 15, 2020, 2:49 PM), https://www.nbcwashington.com/news/local/transportation/metro-contractor-dont-blame-us-for-dirty-parking-garages/2200353 [https://perma.cc/K33N-45BY].

8. Washington Metro Area Transit Auth., Debarments & Suspensions, Washington Metro. Area Transit Auth., Procurement & Contracting, https://www.wmata.com/business/procurement/Debarments.cfm#main-content [https://perma.cc/L974-RGNK] (last visited Apr. 4, 2020) [hereinafter WMATA Debarment List]. Advanced Search—Exclusion, System for Award Management, https://www.sam.gov/SAM/pages/public/searchRecords/advancedPIRSearch.jsf [https://perma.cc/XZ28-TSUE] (last visited Apr. 4, 2020) [hereinafter Federal Excluded Parties List].

9. See generally Unsuck DC Metro (@unsuckdcmetro), Twitter, (Feb. 25, 2020, 7:01 PM), https://twitter.com/unsuckdcmetro?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor [https://perma.cc/Q7HU-QW3R]. This Note focuses exclusively on contractor misconduct as grounds for debarment within WMATA’s procurement system. WMATA faces a host of other procurement-related issues that are beyond the scope of this Note. See generally Jessica Tillipman, D.C. Metro ’Opens Door’ to Procurement Fraud and Retaliation, FCPA Blog (Aug. 27, 2014, 11:28 AM), https://fcpablog.com/2014/08/27/dc-metro-opens-doors-to-procurement-fraud-and-retaliation [https://perma.cc/338Z-3GJ8].

10. See Eric P. Roberson, No Compete Contracting in Cooperative Purchasing? Proposed Solutions to Resolving Gaps in Competition, Transparency, and Socioeconomic Policy at the State and Local Level, 46 Pub. Cont. L.J. 753, 754 (2017).

11. See Cory A. Chipman, Advocating for State-Level Debarment Systems: Lessons from the MPC and GAO, 53 Procurement Lawyer 11, 15 (2018).

12. See Kevin McNiff, The Use of Grant-Making Power to Expand State and Local Procurement Coverage Under the Transatlantic Trade and Investment Partnership, 44 Pub. Cont. L.J. 327, 332 (2015).

13. Chipman, supra note 11, at 15.

14. For example, Pennsylvania has a formal debarment procedure that allows “the head of a purchasing agency, after consultation with the head of the using agency . . . to debar a person from consideration for the award of contracts,” but state officials are slow to actually do so. Id. Alabama, on the other hand, only prohibits government contract awards to entities that are actually debarred or suspended, but has failed to ever issue a debarment action. See id.

15. Steven L. Schooner, The Paper Tiger Stirs: Rethinking Suspension and Debarment, 14 Pub. Procurement L. Rev. 211, 211 (2004) (discussing the “draconian nature of suspension and debarment”). Because of its drastic impact, debarment is reserved only as a means to protect the government, not to punish wrongdoers. Id. at 217–18.

16. “Administrative agreements are a middle ground between full exclusion and doing nothing (while still providing fairness and accountability).” Courtney Bublé, Agencies Are Relying More on Alternatives to Contractor Suspension and Debarment, Gov’t Exec. (Nov. 7, 2019) (quoting Jessica Tillipman), https://www.govexec.com/oversight/2019/11/agencies-are-relying-more-alternatives-contractor-suspension-and-debarment/161157 [https://perma.cc/CR34-T69A].

17. Agencies use alternative methods like administrative agreements, pre–notice letters, and offer credit for proactive engagement by contractors. See David M. Sims, Lori Y. Vassar & Monica Acquino-Thieman, Interagency Suspension and Debarment Committee (ISDC), Acquisition.Gov, Annual Report for Fiscal Year 2017 (July 31, 2018) [hereinafter ISDC Report FY 2017]. As the number of suspensions and debarments have increased, so has the use of these alternative remedies like administrative agreements “to avoid doing business with suppliers perceived as corrupt or unbearably risky.” See also Pascale Hélène Dubois, Collin David Swan & Nathaniel Edward Castellano, Suspension and Debarment on the Rise: A Popular Enforcement Tool in the United States, Anti–Corruption Newsl., Int’l Bar Ass’n 19–21 (Sept. 2015) (noting that “the number of suspensions and debarments cannot be interpreted without context” because they are “purely a function of need” and therefore not a direct “metric of success”).

18. Chipman, supra note 11, at 14.

19. WMATA Procurement Award History, Washington Metro. Area Transit Auth., https://www.wmata.com/business/procurement/solicitations/upload/Procurement-Awards-CY-2020.pdf (last visited Oct. 30, 2020) [https://perma.cc/EUK8-QHLA].

20. Washington Metro. Area Transit Auth., Procurement Procedures Manual, Version 7.4, § Ch. 15 (Aug. 2017) [hereinafter WMATA Procurement Procedures Manual].

21. Id.

22. Federal debarment actions are also monitored for transparency, fairness, and consistency. See David M. Sims, Lori Y. Vassar & Monica Acquino-Thieman, Interagency Suspension and Debarment Committee (ISDC), Acquisition.Gov, Annual Report for Fiscal Year 2018 (Oct. 30, 2019) [hereinafter ISDC Report FY 2018].

23. See WMATA Procurement Procedures Manual, supra note 20, § Ch. 15 at 218–19.

24. See id. For example, WMATA also has provisions for contractor responsibility determinations, including whether the contractor has adequate financial resources, a history of satisfactory performance, and the requisite skills, experience, and capacity to complete the project. Id.

25. Rachel Weiner, Janitorial Supervisors Accused of Scamming Metro out of $260,000 with Fake Cleaning Supplies, Wash. Post (Dec. 13, 2019, 5:31 PM), https://www.washingtonpost.com/local/public-safety/janitorial-supervisors-accused-of-scamming-metro-out-of-260000-with-fake-cleaning-supplies/2019/12/13/a23b0f8c-1de6-11ea-b4c1-fd0d91b60d9e_story.html [https://perma.cc/NP8P-S7C5] [hereinafter Janitorial Supervisors Scamming Metro]; Mitchell McCluskey, Investigators: MetroAccess Contractor Billed Metro for Bogus Rides for Customers Who Had Died, NBC Wash. (July 7, 2016, 6:24 PM), https://www.nbcwashington.com/news/local/transportation-company-charged-metro-for-cancelled-trips-even-after-riders-death-lawsuit-says/59835 [https://perma.cc/Z5UW-D83H]; Rachel Weiner & Martine Powers, Silver Line Contractor Pleads Guilty to Falsifying Concrete Quality Tests, Wash. Post (Aug. 3, 2018, 11:14 AM), https://www.washingtonpost.com/news/dr-gridlock/wp/2018/08/03/silver-line-contractor-pleads-guilty-to-falsifying-concrete-quality-tests [https://perma.cc/NV3L-37ZD]; Sam Sweeney, Metro Has Spent $3.8 Million and 5 Years Building 2 Bike Racks. They’re Still Unfinished., WJLA ABC7 (Feb. 12, 2020), https://wjla.com/news/local/metro-38-million-5-years-bike-racks [https://perma.cc/XW95-UYY4].

26. See WMATA Debarment List, supra note 8.

27. OIG News Releases, Washington Metro. Area Transit Auth., Office of Inspector Gen., https://www.wmata.com/about/inspector-general/OIG-News-Releases.cfm#main-content (last visited Apr. 4, 2020) [https://perma.cc/TC7B-J45C] (including headlines such as “WMATA Office of Inspector General Announces Guilty Plea”; “WMATA OIG Announces Indictment”; and “WMATA OIG Announces Felony Charges in Timekeeping Scheme”). In addition, WMATA employees have committed serious misconduct during the course of employment, including one employee who was arrested for the solicitation of a minor while on a WMATA-financed business trip. Former WMATA Employee Sentenced for Class E Felony, Solicitation of a Minor for Aggravated Statutory Rape, WMATA Office of Inspector Gen., News Releases (Jan. 21, 2020), https://www.wmata.com/about/news/OIG-Former-WMATA-employee-sentenced-for-a-class-E-felony-Solicitation-of-a-minor.cfm [https://perma.cc/A5S2-HKN2].

28. See WMATA Debarment List, supra note 8. These contractors are also not excluded by the federal system, though they legally could be. See Federal Excluded Parties List, supra note 8.

29. WMATA Procurement Procedures Manual, supra note 20, § Ch. 15.

30. Washington Metro. Area Transit Auth., Debarment and Suspension Program Policy, 3–4 § 4.05 (Apr. 24, 2018), https://www.wmata.com/business/procurement/upload/PI-8-12-1-Debarment-and-Suspension-Program-Policy-Final-042418.pdf [https://perma.cc/M8YY-RTA4] (noting that three members of the panel, including the Chief Procurement Officer, are required to establish a quorum) [hereinafter WMATA Debarment and Suspension Policy].

31. Under the World Bank’s system, contractors who commit fraud, corruption, collusion, obstruction, or coercion in the course of performing a World Bank contract can be excluded from receiving future contracts from the World Bank and the other multilateral development banks for a set period of time. See World Bank Group Sanctions System, World Bank Group, Annual Report FY19, at 9, 34 (2019) [hereinafter World Bank Annual Report] (“[The Office of Suspension and Debarment]’s efforts have also involved close ongoing cooperation with key stakeholders from other multilateral development banks, including the five members of the 2010 Agreement on the Mutual Enforcement of Debarment Decisions.”).

32. See id. at 7.

33. See id. at 47, 49.

34. See Washington Metro. Area Transit Auth., Fiscal Year 2019 Approved Budget, 1, 2 (July 1, 2018) [hereinafter WMATA Annual Budget FY 2019] (noting that WMATA operates in Virginia, Maryland, and the District of Columbia).

35. Id.

36. Id.

37. Va. Code. Ann. § 2.2-4321 (2019); Md. Code. Ann., State Fin. & Proc. § 16-203 (West 1989); D.C. Code § 2-359.07 (2011).

38. 2 C.F.R. § 200.213 (2019).

39. See WMATA Annual Budget FY 2019, supra note 34, at 14.

40. See id. State contributions are roughly equal, and all invest in WMATA contracts annually. Id. at 89. In addition, all plan to invest billions over the next five years into contracts for a long-term capital improvement plan for WMATA to conduct major renovations and overhaul its stations and railways. See id. at 14.

41. See id.

42. Va. Code. Ann. § 2.2-4321 (2019) (Virginia Public Procurement Act); Md. Code. Ann., State Fin. & Proc. § 16-203 (West 1989); see also Edmund M. Amorosi & Daniel H. Ramish, Suspension and Debarment Rules in Virginia Public Procurement, Constr. & Pub. Conts. Law, Smith Pachter McWhorter PLC (2019), http://www.smithpachter.com/files/Suspension-and-Debarment-Rules-VBA-Journal-Fall-2019.pdf [https://perma.cc/2ZYE-JRE7].

43. Md. Code. Ann., State Fin. & Proc. § 16-203 (West 1989). See Contractors Barred from Doing Business with Maryland Government, Maryland Board of Public Works, https://bpw.maryland.gov/Pages/debarments.aspx [https://perma.cc/JDJ9-K7VA].

44. D.C. Code § 2-359.07 (2011); D.C. Off. Of Contracting & Procurement, Excluded Parties List, D.C. Office of Contracting and Procurement: Accountability & Transparency (Oct. 11, 2019), https://ocp.dc.gov/page/excluded-parties-list [https://perma.cc/7NQX-WZUG].

45. See WMATA Annual Budget FY 2019, supra note 34, at iii–v.

46. These actions are rare, however, because courts review administrative debarment decisions under a very deferential “arbitrary and capricious” standard, meaning it is unlikely WMATA exclusionary decision would be overturned. See Samantha Block, Defying Debarment: Judicial Review of Agency Suspension and Debarment Actions, 86 Geo. Wash. L. Rev. 1316, 1332 (2018). Nonetheless, were a contractor to bring such an action, WMATA would be forced to expend unnecessary resources litigating. Id.

47. See WMATA Annual Budget FY 2019, supra note 34, at 14, 48.

48. 2 C.F.R. § 200.300 (2019).

49. See id. § 200.

50. Id. § 200.213.

51. Id. § 200.318(h).

52. See Federal Excluded Parties List, supra note 8.

53. See WMATA Annual Budget FY 2019, supra note 34, at 14. In both the federal and WMATA systems, responsibility determinations are designed to ensure that government purchases are made from and contracts are awarded to only responsible contractors. FAR 9.103; WMATA Procurement Procedures Manual, supra note 20, § Ch. 15-2 at 218, Responsible Prospective Contractors. A responsibility determination under both systems must factor in both past performance information and record of exclusion. See Kate M. Manuel, Cong. Research Serv., R40633, Responsibility Determinations Under the Federal Acquisition Regulation: Legal Standards and Procedures 10 (Jan. 4, 2013). For example, under the federal system, if a contractor is presently listed on SAM.gov, or has a strong history of poor past performance, they must be deemed non–responsible. See Kate M. Manuel, Cong. Research Serv., R40633, Responsibility Determinations Under the Federal Acquisition Regulation: Legal Standards and Procedures 10 (Jan. 4, 2013). Similarly, WMATA requires contractors to submit a pre–award evaluation form that includes information about the bidder’s experience, past performance, financial ability, and a list of specific contracts on which their failure to perform within the specified time “resulted in the assessment of liquidated damages.” Washington Metro. Area Transit Auth., Solicitation Instructions: Pre–Award Information 20, https://www.wmata.com/business/procurement/solicitations/documents/AssesmentInput_2.pdf (last visited Nov. 25, 2020) [https://perma.cc/RMD6-XWSJ].

54. Compare WMATA Procurement Procedures Manual, supra note 20, §§ Ch. 15-11 to 15-24 at 222–29, with FAR 9.104-1.

55. U.S. Gen. Accounting Office, GAO/NSIAD-87-37BR, Suspension and Debarment Procedures 25 (1987).

56. Id. at 1–2.

57. FAR 1.101. “The Federal Acquisition Regulations System is established for the codification and publication of uniform policies and procedures for acquisition by all executive agencies.”

58. See ISDC Report FY 2018, supra note 22, at 2.

59. See WMATA Debarment List, supra note 8.

60. Kate M. Manuel, Cong. Research Serv., RL34753, Debarment and Suspension of Government Contractors: An Overview of the Law Including Recently Enacted and Proposed Amendments 8 (Nov. 19, 2008).

61. Id.

62. Compare FAR 9.406-2(a), with WMATA Procurement Procedures Manual, supra note 20, § Ch. 15-12, at 223–25, Debarment and Suspension Definitions.

63. FAR 9.406-2(c); see also WMATA Procurement Procedures Manual, supra note 20, § Ch. 15-16(a), at 225.

64. FAR 9.406-1(a); WMATA Procurement Procedures Manual, supra note 20, § Ch. 15-16(c), at 225, Causes for Debarment.

65. FAR 9.406-1; WMATA Procurement Procedures Manual, supra note 20, § Ch. 15-16(c), at 225, Causes for Debarment.

66. FAR 9.406-1(a)(1)–(10); WMATA Procurement Procedures Manual, supra note 20, § Ch. 15-18(c), at 227, Period of Debarment.

67. FAR 9.406-1; WMATA Procurement Procedures Manual, supra note 20, § Ch. 15-18(c), at 227, Period of Debarment.

68. See Manuel, supra note 60, at 11.

69. See id. at 10.

70. See Federal Excluded Parties List, supra note 8; WMATA Debarment and Suspension Policy, supra note 30, at 11.

71. WMATA Debarment and Suspension Policy, supra note 30, at 3.

72. Id.

73. [Name redacted], Cong. Research Serv., RL34753, Procurement Debarment and Suspension of Government Contractors: Legal Overview (May 27, 2015).

74. Christopher R. Yukins & Michal Kania, Suspension and Debarment in the U.S. Government: Comparative Lessons for the EU’s Next Steps in Procurement, 19-2 UrT 47, 60 (2019).

75. Id.

76. Id.

77. WMATA Debarment and Suspension Policy, supra note 30, at 3.

78. These referrals are made in conjunction with the Office of the General Counsel. See id.

79. See id.

80. See id.

81. See id. at 4.

82. See id. at 3–4.

83. A group of three members, including the Chief Procurement Officer, constitutes a quorum. See id. at 4.

84. Charles Stangor, Principles of Social Psychology 481–82 (1st ed. 2011) (noting that, all else being equal, group decision making can demonstrate “significant process gains” compared to individual decision making because group members demonstrate better memory, more creativity in solutions, and a greater ability to make decisions based on a broad base of data; however, there are significant societal factors, including groupthink and lack of information sharing, that often render group-made decisions impractical if not biased).

85. Yukins & Kania, supra note 74, at 57.

86. Stangor, supra note 84, at 482. In the context of debarment proceedings, concerns about bias stemming from corruption and bribery are particularly relevant. See id.

87. WMATA Debarment and Suspension Policy, supra note 30, at 2.

88. A report compiled by O’Melveny & Myers, and published by the Washington Post in late 2019, details the ethical violations committed by Jack Evans, Chairman of WMATA’s Board of Directors at the time. O’Melveny & Myers, Report of Investigation of Councilmember Jack Evans Pursuant to July 9, 2019 D.C. Council Resolution 23-175 (Nov. 4, 2019), https://dccouncil.us/wp-content/uploads/2019/11/Final-Report-of-Investigation-of-Councilmember-Jack-Evans-Nov.-4-2019__redacted.pdf [https://perma.cc/N4SV-7YAR]. The report concluded that, during his tenure, Evans: “failed to disclose the names [or identities] of any of his consulting clients,” “participated in his official capacity in ‘particular matters’ in which his outside employers or his personal clients had direct financial interests,” “[failed] to recuse himself from matters involving financial interests of a prospective employer,” and “received over $400,000 for doing little or no documented work for consulting clients . . . whom were also “prohibited sources” under the Code of Official Conduct.” Id. at 1. After this investigation concluded, WMATA waited for Evans to resign, rather than formally dismissing him. See Robert McCartney, Jack Evans to Resign from Metro Board After Probe Shows He ‘Knowingly’ Violated Rules, Wash. Post (June 20, 2019, 6:30 PM), https://www.washingtonpost.com/local/trafficandcommuting/jack-evans-knowingly-violated-rules-in-pattern-of-conduct-to-help-friends-and-clients-law-firm-says-in-report/2019/06/20/2f144fa6-936b-11e9-b570-6416efdc0803_story.html [https://perma.cc/9XKP-6WMP]; see also Faiz Siddiqui, VP of Maryland Construction Firm Acquitted in Metro Bribery Case, Wash. Post (Feb. 20, 2019, 4:59 PM), https://www.washingtonpost.com/transportation/2019/02/20/vp-maryland-construction-firm-acquitted-metro-bribery-case [https://perma.cc/28CB-MLP5]; WMATA Debarment List, supra note 8.

89. Federal Excluded Parties List, supra note 8; see also ISDC Report FY 2018, supra note 22, at 3.

90. WMATA Debarment List, supra note 8. As noted, the mere number-to-number comparison is not always going to be determinative of an effective procurement system. See ISDC Report FY 2017, supra note 17. However, the fact that WMATA currently has no debarments, combined with the headline stories of contractor violations, is indicative of a systematic flaw.

91. Robert McCartney, Metro’s New Watchdog: ‘Where There’s Money, There’s Often Fraud, and If it Exists, We Want to Find it, Wash. Post (May 10, 2017, 6:13 PM), https://www.washingtonpost.com/local/trafficandcommuting/metros-new-watchdog-where-theres-money-theres-often-fraud-and-if-it-exists-we-want-to-find-it/2017/05/10/e65e4364-34c8-11e7-b4ee-434b6d506b37_story.html [https://perma.cc/7Y5X-6A4D] [hereinafter Metro’s New Watchdog].

92. Faiz Siddiqui, Metro Suspends New Business with Contractor Whose VP Was Indicted over Alleged Bribery Attempt, Wash. Post (Sept. 5, 2018, 5:58 PM), https://www.washingtonpost.com/transportation/2018/09/05/vp-construction-firm-indicted-alleged-bribery-attempt-metro-official [https://perma.cc/2ZQL-9M7G] [hereinafter Metro Suspends over Alleged Bribery].

93. Metro’s New Watchdog, supra note 91 (“Cherrington arrives with a record of success, including overseeing the investigation into an infamous General Services Administration conference in Las Vegas in 2010. The four-day team-building event cost $823,000 [and] [t]hat investigation ‘literally changed the way the federal government spends on travel and conferences.’”).

94. Id.

95. See id.

96. See id.

97. See id.

98. Id.

99. OIG News Releases, supra note 27; Audit Reports, Washington Metro. Area Transit Auth., Office of Inspector Gen., https://www.wmata.com/about/inspector-general/audit-reports.cfm#main-content (last visited Apr. 5, 2020) [https://perma.cc/K7D3-W5WF]; Other OIG Reports, Washington Metro. Area Transit Auth., Office of Inspector Gen., https://www.wmata.com/about/inspector-general/other-oig-reports.cfm#main-content [https://perma.cc/K7DF-JHNP] (last visited Apr. 5, 2020).

100. Metro’s New Watchdog, supra note 91.

101. See id.

102. See id.

103. WMATA Debarment and Suspension Policy, supra note 30, at 2–4.

104. See Metro’s New Watchdog, supra note 91.

105. Metro Suspends over Alleged Bribery, supra note 92.

106. Id.

107. Id. As is discussed later, WMATA revoked this suspension—despite its regulatory power to continue its enforcement—following Mr. Singh’s acquittal. Id.

108. Id.

109. On February 18, 2020, WMATA announced a partnership with the newly-formed Department of Justice Procurement Collusion Strike Force. Press Release, Washington Metro. Area Transit Auth., WMATA OIG Announces Partnership with the U.S. Department of Justice’s Procurement Collusion Strike Force (Feb. 18, 2020), https://www.wmata.com/about/news/WMATA-OIG-Procurement-Collusion-Strike-Force.cfm [https://perma.cc/U795-SVZE].

The Strike Force will aid WMATA in detecting “bid-rigging, fraud, and other crimes impacting WMATA’s programs” and hopefully “root out crimes being committed against the Authority, and safeguard taxpayer money.” Id. However, potential gaps in the Strike Force could prove detrimental to the Authority’s goals if WMATA contractors who should be subject to sanctions slip through the cracks designed only to catch larger-federal-dollar contractor misconduct. See id. There is currently no indication that the Strike Force will aid WMATA in anything beyond mere detection, meaning WMATA will still be on its own to enforce its procurement regulations. Id.

110. See Data Reports, Federal Awardee Performance and Integrity Information System (FAPIIS), https://www.fapiis.gov/fapiis/datareports.action [https://perma.cc/8FTB-XJRA]; Kate M. Manuel, Cong. Research Serv., R40633, supra note 53, at 11.

111. See Federal Awardee Performance and Integrity Information System (FAPIIS), supra note 110; Kate M. Manuel, Cong. Research Serv., R40633, supra note 53, at 11.

112. See WMATA Annual Budget FY 2019, supra note 34, at 14.

113. 2 C.F.R. §§ 200.12–200.213 (2019).

114. E.g., WMATA Procurement Procedures Manual, supra note 20, § Ch. 15-8(a), at 221.

115. Id.

116. Id.

117. VP Acquitted, supra note 88.

118. Id.

119. Id.

120. Id.

121. Id.

122. Neither is presently listed as excluded parties. Accord WMATA Debarment List, supra note 8.

123. Manuel, supra note 60, at 2.

124. Id.

125. WMATA Procurement Procedures Manual, supra note 20, § Ch. 15-16(c), at 225.

126. See VP Acquitted, supra note 88.

127. Under both the FAR and the WMATA Procurement Procedures Manual, conviction of a criminal offense such as bribery committed in the course of performance of a contract is grounds for mandatory, non–discretionary debarment. See WMATA Procurement Procedures Manual, supra note 20, § Ch. 15-16(c), at 225; FAR 9.406-2(a)(3). Because Singh was acquitted, however, debarment was not required, but rather left up to the discretion of the federal SDO and the Metro Debarment Panel. VP Acquitted, supra note 88.

128. See VP Acquitted, supra note 88. There is at least some evidence of federal exclusion of contractors on the basis of misconduct associated with WMATA contracts. See Lori Aratani, Metro Silver Line Contractor Barred from Seeking Federal Contracts for [Three] Years, Wash. Post, (Nov. 4, 2020, 2:17 PM), https://www.washingtonpost.com/transportation/2020/11/04/metro-silver-line-contractor-barred-seeking-federal-contracts-3-years [https://perma.cc/KY2Q-25JS]. However, this evidence does not outweigh the misconduct WMATA faces. Id.

129. Max Smith, Watchdog Questions Metro Contract Payments, Wash. Top News (Sept. 27, 2019, 4:45 AM), https://wtop.com/tracking-metro-24-7/2019/09/watchdog-questions-metro-contract-payments [https://perma.cc/ZH87-9RE2]; Jordan Pascale, Turns Out, Metro’s Contractors Got the Font Wrong at Rebuilt Station, WAMU (Aug. 12, 2016, 10:22 AM), https://dcist.com/story/19/08/12/turns-out-metros-contractors-got-the-font-wrong-at-rebuilt-station [https://perma.cc/C37K-HWZY].

130. Under the World Bank’s system, contractors who commit fraud, corruption, collusion, obstruction, or coercion in the course of performing a World Bank contract can be excluded from receiving future contracts from the World Bank and the other multilateral development banks for a set period of time. See World Bank Annual Report, supra note 31, at 9, 34.

131. See id. at 7.

132. Id. at 14.

133. Id. at 18; see also Nathaniel E. Castellano, Suspensions, Debarments, and Sanctions: A Comparative Guide to the United States and World Bank Exclusion Mechanisms, 45 Pub. Cont. L.J. 403, 433 (2016) (noting that “World Bank SDOs have practically no discretion whether to issue a sanction if evidence sufficiently shows that sanctionable conduct occurred.”). Some respondents may also enter into a settlement agreement with the Integrity Vice Presidency at the investigative stage before reaching the Office of Suspension and Debarment. World Bank Annual Report, supra note 31, at 19.

134. See World Bank Group, Bank Procedure: Sanctions Proceedings and Settlements in Bank Financed Projects 15 (2016). After that ninety-day window has expired, if a respondent has not appealed, the imposed sanction becomes public without further review. Id.

135. See World Bank Annual Report, supra note 31, at 18.

136. Currently, the Sanctions Board consists of members from South Africa, Switzerland, Argentina, Spain, Nigeria, the United Kingdom, Singapore, the United States, and Chile. See id. at 48.

137. World Bank Group Sanctions Board, WBG Policy: Statute of the Sanctions Board § III.3 (Oct. 18, 2016). In addition to appointment, these members must also be familiar with procurement matters, law, dispute resolution mechanisms, or operations of development institutions, [and] . . . private sector cross-border lending and equity investments . . . or non–commercial guarantee operations.” Id.

138. World Bank Group, World Bank Group’s Sanctions System: Tackling Corruption Through a Two-Tiered Administrative Sanctions Process, World Bank Group Sanctions System, https://www.worldbank.org/en/about/unit/sanctions-system#2 (last visited Nov. 1, 2020) [https://perma.cc/L2SL-534Y].

139. Id.

140. Id.

141. Id.

142. Id.

143. Jessica A. Berrada, Note, Suspension & Proposed Debarment in Federal Government Contracting: A Call for Pre–Exclusion Notice & Opportunity to Respond, Note, 48 Pub. Cont. L.J. 165, 169 (2019) (identifying notice and an opportunity to respond to allegations as primary due process rights contractors and respondents should be afforded before being publicly debarred).

144. Castellano, supra note 133, at 427.

145. Id. at 429; see World Bank Annual Report, supra note 31, at 6.

146. Like the World Bank, WMATA has its own independent set of procurement regulations, but funding and management come from multiple exterior sources, increasing the risks of bribery and other corrupt practices that may originate with any one of those sources. Castellano, supra note 133, at 431–34.

147. Id. at 433.

148. “[T]he United States gives SDOs almost complete discretion when determining whether suspension or debarment is needed to protect the government’s interests.” Id.

149. See id. at 410–11.

150. See id.

151. Federal Excluded Parties List, supra note 8.

152. See Siddiqui, Metro Suspends over Alleged Bribery, supra note 92. But see Siddiqui, VP Acquitted, supra note 88.

153. Castellano, supra note 133, at 433.

154. Id. at 427–28.

155. See FAR 9.405-2(b).

156. See World Bank Group Sanctions Board, WBG Policy: Statute of the Sanctions Board § III.3 (Oct. 18, 2016).

157. See World Bank Annual Report, supra note 31, at 49.

158. See id. at 50.

159. See, e.g., Slack v. Washington Metro. Area Transit Auth., 325 F. Supp. 3d 146 (D.D.C. 2018); Tinsley v. Washington Metro. Area Transit Auth., 55 A.3d 663 (Md. 2012); Washington Metro. Area Transit Auth. v. Briggs, 497 S.E.2d 139 (Va. 1998).

160. Contractors do not have a “right” to government contracts, but “that cannot mean the government can act arbitrarily, either substantively or procedurally, against a person or that such a person is not entitled to challenge the processes and the evidence before he is officially declared ineligible for government contracts.” Gonzales v. Freeman, 334 F.2d 570 (D.C. Cir. 1964) (finding a debarment improper because agency failed to provide written notice of the charges or an opportunity to present a defense). See generally, Friedler v. Gen. Servs. Admin., 271 F. Supp. 3d 40 (D.D.C. 2017); Anderson v. U.S. Dep’t of the Air Force, 689 F. Appx. 464 (2017); Agility Defense & Gov’t Servs. v. U.S. Dep’t of Defense, 739 F.3d 586 (11th Cir. 2013).

161. Recent increases in debarment actions have led to increasing concern from the courts as to whether these exclusions actually comply with FAR requirements. See Block, supra note 46, at 1319.

162. Id. at 1327.

163. Challenges to debarment determinations usually rely on either federal constitutional claims (violation of due process rights), or allegations of “a clear error in agency decision making.” Id. at 1332.

164. See WMATA Annual Budget FY 2019, supra note 34, at 2.

165. See discussion supra Section II.

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Amanda H. McDowell

Amanda McDowell is a JD Candidate at The George Washington University Law School and the Editor-in-Chief of the Public Contract Law Journal. She is expected to graduate in May 2021 with a Concentration in Government Procurement, and will join Crowell & Moring as an associate in the fall of 2021. She wishes to thank Jessica Tillipman for her inspiration in writing this piece, and Collin Swan for his help through the editing process.