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Public Hearing for the Bad Actor Debarment and Suspension Act of 2012 - March 13, 2012

Tuesday, March 13, 2012

Testimony of James D. Staton, Jr., Chief Procurement Officer

Committee on Government Operations, Muriel Bowser, Chair
Council of the District of Columbia
Tuesday, March 13, 2012
1:30 PM
John A. Wilson Building
Room 412
1350 Pennsylvania Avenue, NW
Washington, DC 20004

Good afternoon Chairwoman Bowser and members of the Committee on Government Operations. I am James D. Staton Jr., Chief Procurement Officer for the District of Columbia and Director of the Office of Contracting and Procurement.

Today, I would like to enter a statement for the record regarding the Bad Actor Debarment and Suspension Act of 2012. At OCP, we take very seriously our responsibility to ensure that only those contractors with the highest integrity and responsibility are awarded District contracts. We also take very seriously the role of our contracting staff to act in the best interests of the residents of the District of Columbia. While we support the intent of this bill, we believe that most of it is addressed by current policies, procedures and practices of OCP. The bill does however, allow permanent debarment, which I believe is needed and a strong addition to current law.

As Chief Procurement Officer, I am required by current law to debar any contractor if cause is established, if it is in the best interest of the District, or if the contractor is not presently responsible. Even in cases in which I find cause for debarment, I must assess whether the contractor has taken sufficient mitigating steps to prevent recurrence of the improper conduct. Debarment law is designed to protect the public interest by protecting the integrity of the contracting and procurement processes – not to punish contractors for misdeeds.

Several provisions of this proposed amendment are already included in the District of Columbia Municipal Regulations (DCMR) and the Procurement Reform Act of 2010 (PPRA). We currently publish a complete list of excluded parties on our website at ocp.dc.gov. The list includes all parties, both individuals and companies, debarred from doing business with the District, including the start and end dates of each action. The list is updated as necessary. Further, one of the requirements of our pre-award checklist is for all contracting officers to review the excluded parties list, both local and federal, before making a final award to ensure that all contractors are in good standing with the District prior to award. For contracts over $100,000, prospective contractors must complete OCP’s Bidder Offeror certification prior to the award. The certification requires each prospective contractor to disclose whether it has been suspended, debarred, or declared ineligible under any federal, state or District statutes.

I have conferred with my colleagues and legal staff regarding the proposed legislation and have identified the following portions of the proposed amendment that are duplicative of current laws and rules of the District of Columbia:

Excluded Parties List -- The excluded party list, both local and federal, are available on OCP’s website. We make sure that the list is updated each time a vendor is debarred or suspended. We believe that online, real-time access is more timely and efficient than distributing copies to all procurement staff.

Personnel -- According to DCHR, many of the proposed penalties are less punitive than the penalties laid out in the Table of Penalties in the District’s Personnel Manual which was designed to discourage the type of behavior this act attempts to prevent. If added, these proposed penalties could lead to disparate outcomes for infractions which are similar in nature.

Permanent Debarment-- Thus far, in our research, we have found only two states and one municipality where permanent debarment is an option. In the federal government contracting process, permanent debarment is allowed if necessary, however we were unable to find any federal agency that has exercised this right. The current District debarment law is very similar to federal law, however, I agree with the Federal Acquisition Regulation (FAR) and believe that the District should allow for permanent debarment if circumstances warrant. The decision to permanently debar, however, should be at the discretion of the Chief Procurement Officer.

Conclusion

In conclusion, the Administration supports the spirit of this legislation and its emphasis on accountability for vendors. Nevertheless, we believe the bill could be made stronger by removing duplicative provisions, maintaining the current online excluded parties list and adding language that allows the CPO flexibility to permanently debar a vendor if the violation warrants. Thank you for this opportunity to testify today. I am happy to answer any questions you may have.