Blacklisting

Contact

Marco Giamberardino
Senior Director, Federal & Heavy Construction Division
Government & Public Affairs
Associated General Contractors of America
2300 Wilson Boulevard, Suite 400
Arlington, VA 22201
USA
Phone: (703) 837-5325
Fax: (703) 837-5407
http://www.agc.org

Oppose Efforts to “Blacklist” Contractors

Background:

  • Federal acquisition rules clearly state that contractors must have "a satisfactory record of integrity and business ethics" in order to be eligible for award of a federal government contract. There have been attempts in the past to amend contractor responsibility rules to require contracting officers to consider, in addition, a contractor's compliance with tax, labor, employment, environmental, antitrust, and consumer protection laws as well. Such changes would cause most Federal contractors to be "blacklisted."

AGC Message:

  • Congress Should Require A Thorough Review of the Current Regulatory Regime if it Believes that Existing Regulations are Insufficient. In particular, putting the level of detail of this provision in statute is bad public policy. It takes away the flexibility of the executive branch to craft regulations that address the issue while balancing the interests of the government, the workload associated with additional requirements being levied on government contracting officers, and the opportunity for public comment allowed when regulations are amended.
  • A Well-Established Debarment Process Already Exists. The rules specified in the Federal Acquisition Regulation was designed to ensure a that bad actors are appropriately punished for violations of Federal law. If the Congress determines that existing penalties are insufficient, it should require a thorough Executive Branch review of the current regulatory regime, including recommendations for future means of deterrence and compliance with existing law. These recommendations should carefully consider the Government’s ability to perform its mission and the impact of mandatory debarment.
  • Federal Contractors Would be Subject to Unreasonable Standards. Many companies of reasonable size are involved in some sort of ongoing litigation and administration actions. It is unrealistic and unreasonable to require a firm to certify that the entire corporation has not been convicted or had a judgment against it during the previous three years, or be prepared to provide details on all such convictions and judgments, or be subject to penalties for fraud and false certification. In addition, many agencies, did not want their contracting officers getting involved in tax, labor, or environmental litigation as this is an area where they are not trained to evaluate.
  • Today’s Contracting Officers Face A Complex Myriad of Regulatory and Statutory Requirements. The breadth of the types of things that must be considered by the contracting officer are extremely broad, and will cause the contracting officer to go to great lengths to gather and assess data that may have no relevance to a contractor’s current business integrity and ethics. That information includes such things as civil judgments and violations of tax, labor and employment, environmental, antitrust, and consumer protection laws. It will place on contracting officers a significant workload. Attempting to integrate contracting rules and regulatory requirements is both counterproductive and threatening to the reliability of programs.
  • Unreasonable Length of the Review Period for Assessing Past Performance is Excessive. The provisions extends back for a five-year period, well beyond the established government-determined standard of three years for assessing past performance. The information required to be considered includes all adjudicated matters, regardless of a finding of guilt. This will inappropriately prejudice a contractor who has been exonerated or who settled a matter, without a finding of guilt, rather than go through the expense of litigating to a final conclusion.
  • Considering Unsubstantiated Claims Undermines a Contractors Right to Due Process. The information required to be considered includes all adjudicated matters, regardless of a finding of guilt. This will inappropriately prejudice a contractor who has been exonerated or who settled a matter, without a finding of guilt, rather than go through the expense of litigating to a final conclusion. Such proposals would allow a former disgruntled employee or a competing business to file a claim, or a labor union can threaten to file a claim to pressure a contractor to file a collective bargaining agreement. Unsubstantiated claims due not affect a contractor’s fitness to perform work and often the charges do not relate to the contractor’s performance of the work.