By Collin David Swan*
Enforcement of anti-corruption laws is on the rise. Indeed, it is no secret that civil and criminal actions against businesses and individuals for anti-corruption violations has increased over the last few years. But it is perhaps less well-known that governments around the globe are also increasing their use of suspension and debarment—which are legal mechanisms used by governments to exclude private sector entities and individuals from public procurement contracts—to avoid doing business with suppliers perceived as corrupt or unbearably risky.
Enforcement of anti-corruption laws is on the rise. Indeed, it is no secret that civil and criminal actions against businesses and individuals for anti-corruption violations has increased over the last few years. But it is perhaps less well-known that governments around the globe are also increasing their use of suspension and debarment—which are legal mechanisms used by governments to exclude private sector entities and individuals from public procurement contracts—to avoid doing business with suppliers perceived as corrupt or unbearably risky.
The United States is no exception
to the trend. The 2015 annual report from the U.S. Interagency Suspension & Debarment Committee
(ISDC) to Congress reveals that the number of debarment actions
undertaken by U.S. agencies has increased steadily over the last six years—from
669 debarments in FY 2009 to 1,929 debarments in FY 2014. The number of
suspensions has also increased to 1,009 actions in FY 2014, which represents a
142% increase from FY 2009 (417 actions). The ISDC is an interagency
body working to provide support for suspension and debarment programs across
numerous executive agencies and thus has unique visibility into government-wide
trends in suspension and debarment activities.
Of course, the ISDC is quick to
caution that the number of suspensions and debarments cannot be interpreted
without context. The ISDC explicitly states that it “does not
consider the overall number of suspension and debarments to be a metric of success;”
it is instead “purely a function of need.” One explanation for the increased
number of suspensions and debarments could be the recent reforms and
enhancements made by several agencies to their systems. By 2014, the
Government Accountability Office issued a report noting that
the several government agencies made significant enhancements to their
suspension and debarment systems, including:
· addressing staffing issues “through actions such as defining roles
and responsibilities, adding positions, and consolidating the suspension and
debarment function into one office;”
· “issuing formal policy and promulgating detailed guidance;” and
· engaging “in practices that encourage an active referral
process.”
ISDC officials attribute these
enhancements “in part to increased management attention within individual
agencies, guidance from [the Office of Management and Budget], and support from
the ISDC.” Other factors helping to promote reform are improved
coordination between agencies and the “robust participation in the ISDC,
including agencies with mature suspension and debarment programs.”
These recent experiences show that
suspension and debarment can be an effective tool to promote integrity in
public procurements. But to be successful, these systems require
governments to implement appropriate rules and make sufficient resources
available. Anti-corruption and public procurement practitioners
should take note of the potential for well-functioning suspension and debarment
systems to work in tandem with more traditional modes of enforcement.
*Professorial Lecturer in Law, The
George Washington University Law School
Junior Counsel, World Bank
Office of Suspension & Debarment
Washington, DC
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