- The Washington Times - Wednesday, January 13, 2010

The federal government’s system of suspending transportation contractors can be so fraught with delays that companies still can compete for contracts in the months or years it takes for regulators to decide whether to blacklist the businesses.

The U.S. Department of Transportation took 10 months to decide to suspend several people after they were charged in a bribery case in Kentucky, according to an audit by the transportation inspector general.

The findings mark the latest government review to highlight a persistent area of concern in federal contracting, as agencies across government scramble to spend hundreds of billions of dollars in economic stimulus funds while ensuring that the money doesn’t end up in the wrong hands.

Similar concerns arose last year when the House Committee on Oversight and Government Reform held hearings titled “How Convicts and Con Artists Receive New Federal Contracts.” A 2009 report by the Government Accountability Office (GAO), citing cases in several agencies, concluded that “businesses and individuals that were excluded for egregious offenses were continuing to receive federal contracts.”

“Now more than ever, with so much stimulus money being spent, it’s essential the government protects its interests,” said Neil Gordon, an investigator with the nonpartisan Project on Government Oversight, which monitors federal spending and contracting practices.

Mr. Gordon said a lack of staff in agencies’ suspension and debarment offices, coupled with less than clear guidelines, contributed to the problem.

Robert Burton, a partner with the Venable LLP law firm and a former deputy administrator of the Office of Federal Procurement Policy, said the problems in suspension and debarment practices run across government.

“Procurement spending has increased from $200 billion at the beginning of the decade to well over $500 billion at the end of the decade, and so there are going to be more instances of waste and abuse,” Mr. Burton said. “But one of the concerns is whether agencies are using suspension and debarment properly and aggressively.”

On average, transportation officials took more than 300 days to reach a suspension decision and more than 400 days to reach a debarment decision, according to the inspector general’s report.

Suspensions and debarments are official actions to ban companies from competing for contracts. While suspensions are temporary, often pending the outcome of an inquiry, debarments are permanent or imposed for a set period of time.

Among other causes, the inspector general blamed the delays on “unnecessary and lengthy reviews before deciding cases ….”

“Not only do these delays put the [Department of Transportation] and other federal agencies at risk of awarding contracts or grants to parties who should be suspended or debarred, but they also create funding risks that could impact the effective and efficient use of funds …,” the report concluded.

Transportation officials acknowledge problems but said they have “ramped up resources” to better handle suspension and debarment cases, according to a letter responding to the inspector general from Linda J. Washington, assistant secretary for administration in the Transportation Department.

Transportation Department spokesman Bill Adams also said Tuesday that the Federal Highway Administration (FHWA), where several of the problems were found, enacted a revised set of protocols, including plans to issue suspension and debarment orders within 45 days of being notified about a contractor’s indictment.

“The new administration takes the issue of suspension and debarment very seriously,” he said.

The inspector general's office said it warned the Transportation Department about the need for faster decisions on debarment and suspension cases over the past two years, according to the report.

In one case, the inspector general sent a suspension referral to the FHWA in September 2008 based on an indictment charging company officers and a state highway official in Kentucky with bribery, conspiracy, theft and obstruction of justice, according to the report.

Ten months later, Transportation suspended the people, but during the time it took to make a suspension decision, “companies whose officials were associated with parties that FHWA ultimately suspended” won more than $24 million in federal American Recovery and Reinvestment Act-funded contracts in Kentucky, according to the inspector general’s report.

The report doesn’t identify the people in the bribery case and the inspector general's office declined to do so in response to questions from The Washington Times. However, the report said they were suspended in July.

Federal records show three people were suspended in Kentucky in a federal highway-related matter that month: road contractor Leonard Lawson; Brian Billings, a contract employee; and Charles Nighbert, a former transportation secretary in Kentucky. All three were charged in a bid-rigging scandal involving leaked bids on lucrative road-paving projects.

Ms. Washington defended Transportation’s handling of the Kentucky case, saying all those in the case were suspended and that officials did not have sufficient evidence to suspend other “unindicted companies.”

“Regarding the Kentucky suspensions, the FHWA suspended each of the three indicted individuals referred by the [Office of Inspector General] and one company,” Mr. Adams said. “FHWA did not find any evidence that any of the suspended individuals owns or controls companies to which … contracts were awarded. If such evidence were presented, FHWA would act expeditiously.”

Still, inspectors found separate suspension and debarment cases that had been pending for “several years” before officials took final action. In one case, the proceedings were pending for more than two years after a contractor pleaded guilty in a federal case involving bribery, conspiracy and unlawful storage of hazardous materials.

Other agencies have struggled with delays in their suspension and debarment practices in recent years.

In October, the inspector general for the U.S. Agency for International Development found that the agency was taking too few suspension and debarment actions and that officials took too long to enter the sanctions into a government database.

In 2008, The Times reported that federal contracting officials had signed off on millions of dollars in work to now-defunct Washington-area security company USProtect, weeks after it was suspended by the General Services Administration and months before two top executives were charged in a bribery and tax scam.

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