HR 2767 IH

108th CONGRESS

1st Session

H. R. 2767

To improve Federal agency oversight of contracts and assistance and to strengthen accountability of the governmentwide debarment and suspension system.

IN THE HOUSE OF REPRESENTATIVES

July 17, 2003

Mrs. MALONEY (for herself, Mr. KING of New York, Mr. KANJORSKI, Mr. GARY G. MILLER of California, Mr. TOWNS, Mr. OWENS, and Mr. KUCINICH) introduced the following bill; which was referred to the Committee on Government Reform

A BILL

To improve Federal agency oversight of contracts and assistance and to strengthen accountability of the governmentwide debarment and suspension system.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Contractors Accountability Act of 2003'.

SEC. 2. FINDINGS.

The Congress finds the following:

(1) NEED FOR DATABASE- (A) By spending over $215,000,000,000 a year on procurement and nonprocurement awards for goods and services, the Federal Government is the largest consumer in the world.

(B) It is in the best interest of the Federal Government and its taxpayers to award contract and assistance to entities that are responsible and have a suitable record of integrity and business ethics.

(C) There is no centralized, comprehensive database on judicial actions, consent decrees, administrative agreements, terminations, or settlements with respect to potential Federal contractors or assistance participants.

(D) Federal officials do not have the resources necessary to assemble such information for each Federal procurement award.

(E) The lack of this information compromises the Federal Government's ability to safeguard the integrity of the Federal procurement and assistance activities.

(F) It is in the best business interests of the Federal Government to have all information possible regarding potential contractors' and assistance participants' performance and integrity records to assure that persons with which the Government does business are presently responsible.

(2) REALITY OF DEBARMENTS AND SUSPENSIONS OF TOP 43 FEDERAL CONTRACTORS- Since 1990--

(A) of the top 43 Federal contractors based on total contract dollars received--

(i) 16 have a total of 28 criminal convictions; and

(ii) 4 of the top ten have at least 2 criminal convictions;

(B) such 43 contractors have paid a total of $3,400,000,000 in fines, penalties, restitution, settlements, and clean-up costs under the Superfund program; and

(C) despite such fines and criminal convictions, only one of the 43 contractors has been debarred or suspended from contracting with the Federal Government, for only 5 days.

(3) NEED FOR DATABASE NOT FULFILLED-

(A) There is no centralized listing of criminal or civil indictments, convictions, fines, penalties, restitution, and settlement assessments relating to contractors or assistance participants.

(B) Potential Federal contractors or assistance participants are not required to disclose all relevant criminal, civil, or administrative rulings or resolutions during the Federal procurement award process.

(C) Without such a database or disclosure, Federal award officials and debarment officials lack important information relevant to present responsibility.

SEC. 3. DATABASE FOR FEDERAL DEBARMENT OFFICIALS AND CONTRACTING OFFICERS.

(a) IN GENERAL- The Administrator of General Services shall establish and maintain a database of information regarding integrity and performance of Federal contracts and assistance recipients for use by Federal procurement award officials and Federal officials having authority to debar or suspend persons from Federal contracts or assistance.

(b) INFORMATION INCLUDED- The database--

(1) shall consist of information regarding judicial and administrative proceedings initiated or concluded by the Federal Government and State governments against Federal contractors or assistance recipients; and

(2) shall include with respect to each entity awarded a Federal contract or assistance--

(A) information regarding all proceedings referred to in paragraph (1) against that person in at least the most recent 5-year period;

(B) with respect to each proceeding--

(i) a brief description of the proceeding; and

(ii) any amount paid by the person to the Federal Government or a State government;

(C) all Federal contracts and assistance awarded to the person that were terminated in such period due to default;

(D) all Federal debarments and suspensions of the person in that period; and

(E) all Federal suspension and debarment or administrative agreements signed with such person in that period.

(c) INPUT OF DATA- The Administrator shall design and maintain the database in a manner that allows the appropriate officials of each Federal agency to directly input and update in the database information relating to actions it has taken with regard to contractors or assistance recipients.

(d) AVAILABILITY- The Administrator shall make the database available to all Federal agencies and to the public in accordance with section 552 of title 5, United States Code, popularly known as the Freedom of Information Act.

SEC. 4. SUSPENSION AND DEBARMENT PRESUMPTION FOR REPEAT VIOLATORS AND POOR PERFORMERS.

(a) IN GENERAL- Federal agency suspension and debarment regulations shall be amended by no later than 180 days after the date of the enactment of this Act to provide that an entity shall be presumed nonresponsible with respect to award of a Federal contract or assistance if the entity has rendered against it twice within any 3-year period a judgment or conviction for the same offense, or similar offenses, if each conviction constitutes a cause for debarment under the governmentwide debarment system.

(b) REBUTTAL- The presumption under subsection (a) shall be rebutted only if the entity demonstrates, by clear and convincing evidence, that the entity is presently responsible and has corrected the conditions that gave rise to the violations.

(c) REPEAT VIOLATIONS- An agency suspending official may deem evidence of repeat violations under subsection (a) as sufficient reason to find that immediate action is necessary to suspend an entity under the regulations until the entity fulfills the requirements of subsection (b).

SEC. 5. DISCLOSURE IN APPLICATIONS.

Federal regulations shall be amended by no later than 180 days after the date of the enactment of this Act to require that in applying for any Federal contract or assistance, whether by submission of a proposal, any solicitation, bid, or other offer, an entity shall disclose in writing--

(1) all Federal or State debarments or suspensions of the entity from contracts or assistance in the 5-year period preceding the date of submission of the application;

(2) all judicial and administrative proceedings against the entity by the Federal Government or any State that occurred in the 5-year period preceding the date of the application; and

(3) all administrative agreements with respect to Federal contracts or assistance that the entity is implementing to avoid suspension or debarment within 5 years of the date of the submission of the application.

SEC. 6. ROLE OF INTERAGENCY COMMITTEE.

The Interagency Committee on Debarment and Suspension shall--

(1) resolve issues regarding which of several Federal agencies is the lead agency having responsibility to initiate suspension or debarment proceedings;

(2) coordinate actions among interested agencies with respect to such action;

(3) encourage and assist Federal agencies in entering into cooperative efforts to pool resources and achieve operational efficiencies in the governmentwide suspension and debarment system;

(4) recommend to the Office of Management and Budget changes to Government debarment and suspension system and its rules, if such recommendations are approved by a majority of the Interagency Committee;

(5) authorize the Office of Management and Budget to issue guidelines that implement those recommendations;

(6) authorize the chair of the Committee to establish subcommittees as appropriate to best enable the Interagency Committee to carry out its functions; and

(7) submit to the Congress an annual report on--

(A) the progress and efforts to improve the suspension and debarment system;

(B) member agencies' active participation in the committee's work; and

(C) a summary of each agency's activities and accomplishments in the governmentwide debarment system.

SEC. 7. AUTHORIZATION OF INDEPENDENT AGENCIES.

Any agency, commission, or organization of the Federal Government to which Executive Order 12549 does not apply is authorized to participate in the governmentwide suspension and debarment system and may recognize the suspension or debarment issued by an executive branch agency in its own procurement or assistance activities.

SEC. 8. USE OF PAYMENTS UNDER ADMINISTRATIVE AGREEMENTS.

(a) IN GENERAL- A Federal agency may--

(1) retain amounts described in subsection (b); and

(2) use those amounts solely--

(A) to administer, review, or oversee compliance with suspension or debarment administrative agreements; and

(B) for costs associated with establishing and maintaining the database under section 3, including for input and update of information in the database.

(b) AMOUNTS DESCRIBED- The amounts referred to in subsection (a) are amounts received by the agency as payment made by any Federal contractor or assistance participant pursuant to an administrative agreement with respect to a Federal contract or assistance activity.

(c) RESTRICTION- Amounts retained under subsection (a)(1) may not be used for agency administration or expenses not described in subsection (a)(2).

SEC. 9. DEFINITIONS.

In this Act:

(1) INTERAGENCY COMMITTEE- The term `Interagency Committee on Debarment and Suspension' means such committee constituted under sections 4 and 5 and of Executive Order 12549.

(2) ASSISTANCE- The term `assistance' means Federal grants, cooperative agreements, loans, loan guarantees, and other benefits included as covered transactions under the governmentwide nonprocurement suspension and debarment rules.

(3) CONTRACT- The term `contract' means those direct procurement transactions covered by subpart 9.4 of the Federal Acquisition Regulation.

END