Rob Burton is the former deputy administrator of the Office of Federal Procurement Policy and now with the Venable Law Firm in Washington.
He calls it the “bad apple” database because of what it contains.
“It’s got information on criminal convictions in connection with the award or performance of the federal contracts or grants. It’s not just contracts, it’s also grants. Anything regarding civil liability, if it’s over $5,000, administrative proceedings, like suspension or debarment, and settlements, where there’s some type of acknowledgment of fault, and this is at the federal or state level.”
The list has not been without controversy. The measure passed in the Defense Authorization Act last year, and Burton says initially it wasn’t open to everyone.
“The compromise was that only contracting officials and certain folks in Congress — not everybody in Congress — would have access to this data. I’ve got to say, I did predict it would only be a matter of time, though I didn’t think it would be this quick, where it would be open to the public, because a lot of folks, like the watchdog groups and the press, who thought that there was information in there that they should have were filing FOIA requests.”
Some have said that, despite the best efforts of those involved, the list remains incomplete. Burton explains that, because the list relies on contractors themselves doing the reporting, they need to be especially careful.
“Since it’s open to the whole world, and it’s going to be very public, some contractors may not want to self report. They may just not enter the information. There may be a disincentive to be accurate. . . . I think there will be more of a chilling effect here, quite frankly, for contractors to report certain information, especially if they think it’s irrelevant to the contract at hand and they may just not put it into the system, where they might have before where the access was very limited. So, you may be getting inaccuracies from the contractor deciding self-consciously not to report it.”
Contracting officers, too, might start to get nervous. The more public the information, some argue, the more the actions of any officer might be subject to scrutiny. Burton says this could even result in more protests.
“A contracting officer is required now to consult this database before they make a contract award. That’s very significant. They must look at this information. But, I’ll tell you, what I’m most concerned about with respect to this whole thing, even when it was passed in 2009, is that it could possibly result in defacto debarment of a contractor. By that I mean, where a contracting officer, when they look at this information, they don’t really understand it, they think, ‘Wow, it looks negative. . . . I don’t think I will award to this contractor’.”
As for contractors purposefully leaving out information, Burton says another problem stems from the fact that there is no real way to police the list. Since it’s all done on faith, information — whether relevant or not — could be left out and almost no one would know.
“That’s the bottom line. It’s really not [enforceable]. So much of our federal procurement system is based on self-certification. We rely on the contractors to tell us, because it’s just such a big system that there’s really no way for the government to find out. Now, if for some reason the government does find out, that could result in suspension and debarment of the company and they would be precluded from doing business with the federal government. So, there is risk if a contractor doesn’t fess up, but I can see, now that this is going to be totally public, a contractor might have incentive to try and keep it quiet.”