New Bill Seeks to Automatically Debar and Significantly Restrict Contingency Contractors

On February 29, 2012, Senator Claire McCaskill (D-Mo) introduced a bill designed to significantly increase oversight of and restrictions on U.S. government contractors involved in overseas military contingency operations. If passed, the bill, known as the “Comprehensive Contingency Contracting Reform Act of 2012” (S. 2139), could significantly restrict contractor activity. As written, the bill seeks to:

• Automatically suspend from contracting any contractor that has been charged “by indictment or information” with “a Federal offense relating to the performance of a contract with the Department of Defense, the Department of State, or the United States Agency for International Development in connection with an overseas contingency operation”;
• Automatically suspend from contracting any contractor that has been charged “in a civil or criminal proceeding alleging fraudulent actions on the part of the contractor,” even if such charge was not in connection with an overseas contingency operation;
• Revoke existing regulations that permit contractors to respond to past performance evaluations and to have such responses included in the Past Performance Information Retrieval System;
• Increase the obligations of corporations to report certain information through the Federal Awardee Performance and Integrity Information System (FAPIIS);
• Create a comprehensive database of the prices charged for items and services under contracts with the government;
• Limit the duration of contingency contracts to three years for competitively-bid awards and one year for noncompetitive awards;
• Restrict contractors with contingency contracts so that they may only have a single tier of subcontractors for such contracts;
• Require contractors to consent to the jurisdiction of the D.C. District Court for cases of rape, sexual assault, bodily injury or wrongful death of certain government or contractor employees who are U.S. nationals;
• Create additional penalties for violations of laws that prohibit human trafficking laws;
• Create new inspectors-general for contingency operations within the Department of State (DOS) and Department of Defense (DOD) and enhance the authority of existing inspectors-general over contingency contracting; and
• Place new requirements on DOS, DOD and the U.S. Agency for International Development to re-organize existing and create new offices with responsibilities for suspension and debarment.

Many of the provisions in the bill originate in recommendations previously made by the U.S. Commission on Wartime Contracting in Iraq and Afghanistan, a legislative commission created in 2007 to evaluate contingency contracting in Iraq and Afghanistan.

Already, several prominent organizations have objected to the scope and severity of the bill’s provisions. Among other issues, the bill undercuts the long-established role of each agency’s suspension and debarment official. Moreover, an “automatic suspension or debarment” would not take into account measures and remedial actions that contractors often are willing to implement that would correct problems and improve compliance.