Enhancements to Suspension & Debarment Systems Leads to Higher Number of Suspension and Debarment Actions in the United States

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. 

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