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By Jessica Tillipman

Why is Congress always picking on government contractors? It seems like every few months, a member of Congress (or congressional committee) is giving a speech, holding a hearing or introducing a bill aimed at “bad contractors.” It makes sense—now that Congress has passed a budget, avoided sequestration, and successfully resolved the myriad problems plaguing the United States, Congress needs to go after the true cause of this country’s problems: government contractors.

Government contractors have had a breather from congressional ire during the members’ five-week long recess, though one can only imagine what will be next on the agenda. After all, it has been less than three months since the latest member of Congress (this time, Rep. Alan Grayson) has attempted to make debarment mandatory.

Why members of Congress continue to propose mandatory debarment legislation is mindboggling. Whether it’s an attempt to remain relevant or show their constituents that they are actually doing work, bills like Grayson’s (and the mandatory debarment proposals that preceded it), make great campaign slogans, but are terrible policy. Moreover, they fundamentally undermine and denigrate the group that enables the U.S. government to serve the needs of its constituents.
In my latest article, The Congressional War on Contractors, published in The George Washington University International Law Review, I discuss recent attempts by certain members of Congress to transform debarment into a tool of punishment rather than pursuing legislative initiatives that further the government’s nuanced best interests.

Rather than pursuing a legislative agenda that acknowledges contractors’ fundamental due process rights (or what Senator McCaskill refers to as “bureaucratic handcuffs”), certain members of Congress continue to propose unnecessary, and in many instances counterproductive, legislation designed to transform the suspension and debarment regime into a punitive and non-discretionary sanction. [I will exclude from this discussion the SUSPEND Act, which, despite my ultimate disagreement with its structure, does attempt to create a system that respects rather than destroys contractors’ fundamental due process protections].

The Congressional War on Contractors is a response to the relentless legislative assault on contractors and the discretionary debarment system. As government agencies continue to refine and improve their suspension & debarment processes, perhaps it is time to return to a more thoughtful, reasoned approach to this complex, challenging issue.

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Jessica Tillipman is a Senior Editor of the FCPA Blog. She’s the Assistant Dean for Field Placement and Professorial Lecturer in Law at The George Washington University Law School.

Reprinted with permission of The FCPA Blog