Rep. Ellison’s overbroad amendment could mean mass debarments for federal contracting community
As the appropriations process moves toward the Senate, the federal contractor community has cause for concern with a series of amendments in Fiscal Year 2015 House appropriations bills that could mean mass debarment of federal contractors who have been involved in any civil, criminal, or administrative proceedings related to the Fair Labor Standards Act (FLSA). This morning, the IT Alliance for Public Sector (ITAPS), a division of ITI, sent a letter to Sens. Richard Durbin (D-IL) and Thad Cochran (R-MS) indicating our opposition to these amendments, and in particular, to the House Department of Defense Appropriations Act (H.R. 4870) amendment offered by Rep. Keith Ellison (D-MN). While well-intentioned, the language in this bill would lead to unintended consequences for the federal government, including the disruption of valuable partnerships with leading companies and small businesses that provide critical solutions and services to the taxpayer.
Recently, ITAPS joined with nine other organizations in the Acquisition Reform Working Group (ARWG) to express industry’s strong opposition to the Ellison amendment, and identical amendments offered by Reps. Raul Grijalva (D-NM) and Jan Schakowsky (D-IL), which were also added to the Transportation, Housing and Urban Development (T-HUD), Energy and Water, and Financial Services and General Government appropriations bills. Specifically, the amendment would prohibit funds appropriated under the various appropriations bills from being used to enter into a contract with a company that discloses a Fair Labor Standard Act (FLSA) violation in Federal Awardee Performance and Integrity Information System (FAPIIS).
Among the many concerns, we believe that this amendment is unnecessary, as violations of FLSA are already identified in statute as a basis for a review and determination of responsibility for contractors that could lead to suspension or debarment.
Other concerns include:
- The amendment removes a contractor’s due process rights by circumventing long-standing and proven suspension and debarment practices in which experienced suspension and debarment officials consider the seriousness of the contractor’s acts or omissions and a company’s internal control systems before making a determination of responsibility.
- The amendment exposes contractors to risks beyond their control as the complexity of the FLSA allows it to be subjectively interpreted. Most companies undertake extensive efforts to comply with the FLSA, but an investigation resulting in a single finding of fault could compromise a contractor’s ability to do business with the government.
- This amendment is too draconian to be effective and could cause other unintended consequences. The amendment is overly broad and contradicts general consensus that one violation should not limit a company’s ability to do business with the government.
ITAPS is actively monitoring the amendment and will continue our advocacy as these bills move through the Senate appropriations process.
About ITAPS. ITAPS, a division of the Information Technology Industry Council (ITI), is an alliance of leading technology companies building and integrating the latest innovative technologies for the public sector market. With a focus on the federal, state, and local levels of government, as well as on educational institutions, ITAPS advocates for improved procurement policies and practices, while identifying business development opportunities and sharing market intelligence with our industry participants. Visit itaps.itic.org to learn more. Follow us on Twitter @ITAlliancePS.