Transparency is essential to building credibility when dealing with public funds and the public trust, and numerous proposals now before Congress seek to enhance transparency in government contracting. Their essential goal is laudable even though some of these proposals are driven by a misperception that fraud is rampant in federal contracting — a perception even the special inspector general for Iraq reconstruction has repeatedly challenged.
Unfortunately, the proposals now before Congress will not achieve the goal of transparency. Instead, they threaten to overload the system with irrelevant and often misleading information and place untenable burdens on government contracting officers. They would also lay waste to more than a few basic tenets of our system of laws, including due process. In the end, the likely result would be chaos, not transparency.
Separate legislation proposed by Rep. Carolyn Maloney (D-N.Y.) and Sen. Claire McCaskill (D-Mo.) is intended to ensure that scofflaws do not receive federal contracts. No one can argue with that. Both bills would require the creation of a publicly searchable database for government contracting officers to use in making contractor responsibility determinations. The database would contain an extraordinary range of information — not only convictions and findings of guilt in administrative cases but every administrative, civil or other settlement that resulted in no findings or in which a “finding of guilt might have otherwise resulted.” This is a standard that strains credulity.
In addition to blithely ignoring fundamental premises of law — not the least of which is the presumption of innocence — the proposed database would include information on routine matters that technically equate to administrative settlements. These actions are often disputes of a routine nature, and their disclosure adds little value to a database designed to expose supposed misconduct. The legislation also provides no metric to indicate the comparative severity of disclosed actions or mitigative steps that have already been taken to prevent their recurrence.
This lack of context will breed confusion and likely result in the presumption that all such cases represent probable or proven misconduct of a serious nature. While ignoring the bedrock principle of innocent until proven guilty, the databases would leave it to beleaguered contracting officers to parse voluminous amounts of data in an attempt to make legally sound and fair judgments.
Meanwhile, Sens. Barack Obama (D.-Ill.), Tom Coburn (R-Okla.) and John McCain (R-Ariz.) have introduced a bill to dramatically expand the information already posted to USASpending.gov, which is intended to list all federal grants and contracts. That new proposal would require the inclusion of highly sensitive and proprietary details, such as specific contract cost elements and company past performance reports available under current law only to government officials. The legislation also includes most of the misconduct information covered under the McCaskill and Maloney bills but does not direct that the information be used in source selection.
Transparency is a goal all taxpayers can embrace, but the proposals being put forth go well beyond the reasonable and fair. They must be restructured to reflect the basic protections and tenets of our system of laws and include appropriate protection of intellectual property and proprietary and other information, including that which is protected from release under the Freedom of Information Act.
In addition, much more thought must be given to how the information will be collected, assessed and used. Unless these prudent steps are taken, chaos will almost certainly ensue — with little or no improvement to the federal acquisition system or benefit to the taxpayer.
Stan Soloway (soloway@pscouncil.org) is president and chief executive officer at the Professional Services Council.
