A House of Cards Falls: Why 'Too Big to Debar' is All Slogan and Little Substance

11 Pages Posted: 17 Jan 2012 Last revised: 7 Jun 2012

Jessica Tillipman

The George Washington University Law School

Date Written: January 13, 2012

Abstract

“A House of Cards Falls: Why ‘Too Big to Debar’ is All Slogan and Little Substance” is a critical response to the article, "FCPA Sanctions: Too Big to Debar" by Drury D. Stevenson and Nicholas J. Wagoner, which aptly demonstrates a common, yet fundamentally flawed understanding of the FAR 9.4 suspension and debarment regime. "Too Big to Debar" asserts that when large government contractors violate the Foreign Corrupt Practices Act (FCPA), they should be “punished” by being debarred from the procurement system. Indeed, despite FAR 9.4’s clear directive to use debarment only for the purpose of protecting the government, not to punish past misconduct, "Too Big to Debar" completely disregards this fundamental tenet of the suspension and debarment regime (and the regulation’s plain language) by repeatedly referring to debarment as punishment. "Too Big to Debar" also misrepresents the true consequences of debarment — the corporate death penalty. In an era of outsourced government, these large, sophisticated firms not only permit the government to provide critical functions, but employ thousands of hard-working and innocent employees. Imposing debarment for the sake of retribution or deterrence is not only contrary to law, but would be harmful to the country’s diverse interests.

If FCPA enforcement has touched every industry, why do the authors single out large government contractors? Because they can — large government contractors are not sympathetic. Even though nearly all companies, regardless of their size or line of business are exposed to the potential misconduct of rogue employees, the authors expect government contractors to defy the statistically impossible. Too Big to Debar appears to assert that it is morally wrong to “reward” government contractors that have misbehaved. By injecting theories of punishment into an administrative regime, the article elevates the simple, almost visceral desire for large-scale retribution over the more nuanced best interests of the government. “A House of Cards Falls” exposes “Too Big to Debar” for what it is: a populist sound bite used to vilify and bash contractors without regard for nuance or reality.

Keywords: Too Big to Debar, FCPA, Foreign Corrupt Practices Act, Government Contracts, Procurement, Corruption, Anticorruption, Bribery, Antibribery, Suspension, Debarment, Corporations, Corporate Settlements, Corporate Prosecutions

JEL Classification: F23, G15, G18, G38, H10, H40, H50, H41, H54, H56, H57, H59, H77, K14, K19, K22, K23, K33, K42, L14

Suggested Citation

Tillipman, Jessica, A House of Cards Falls: Why 'Too Big to Debar' is All Slogan and Little Substance (January 13, 2012). Fordham Law Review Res Gestae, Vol. 80, No. 49, 2012; GWU Legal Studies Research Paper No. 2012-8; GWU Law School Public Law Research Paper No. 2012-8. Available at SSRN: https://ssrn.com/abstract=1984949

Jessica Tillipman (Contact Author)

The George Washington University Law School ( email )

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Washington, DC 20052
United States
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HOME PAGE: http://www.law.gwu.edu/faculty/profile.aspx?id=1899

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