Risky Business: Does Debarring Poor Performers Mitigate Future Performance Risk?

Third International Conference on Public Procurement Law Africa, organized by the African Procurement Law Unit at Stellenbosch University (1-2 November, 2018)

37 Pages Posted: 11 Dec 2018

See all articles by Collin D. Swan

Collin D. Swan

George Washington University - Law School; Office of Suspension and Debarment, The World Bank

Belita Manka

Legal Department, World Bank

Date Written: November 1, 2018

Abstract

Debarment (also referred to as disqualification, exclusion, suspension or blacklisting) is a mechanism used by governments and organizations to exclude entities from participating in public contracts or otherwise accessing public funds. Many countries debar entities found to have engaged in fraud, corruption and other forms of misconduct as a means to protect their procurement systems from bad actors, ensure the integrity of the procurement process and public funds, and deter future misconduct. At the same time, many of these systems also provide for the debarment of contractors found to have an unsatisfactory performance record, including but not limited to a history of contract default.

This paper provides a comparative analysis of several jurisdictions that consider a contractor’s poor performance as a basis for either disqualification or debarment. Although many jurisdictions include poor performance as a basis for exclusion, the available guidance, prevalence, and experiences of using this basis varies widely. To the extent possible, the article analyzes what constitutes sufficiently poor performance to justify exclusion in each jurisdiction and the types of factors that should ultimately be considered when determining if a potential contractor should be disqualified or publicly debarred for poor performance.

Keywords: suspension, debarment, exclusion, blacklist, poor performance, past performance, procurement, government contracts

JEL Classification: K00, K23, K42, F53

Suggested Citation

Swan, Collin D. and Manka, Belita, Risky Business: Does Debarring Poor Performers Mitigate Future Performance Risk? (November 1, 2018). Third International Conference on Public Procurement Law Africa, organized by the African Procurement Law Unit at Stellenbosch University (1-2 November, 2018). Available at SSRN: https://ssrn.com/abstract=3287348

Collin D. Swan (Contact Author)

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

Office of Suspension and Debarment, The World Bank

1818 H Street, NW
Washington, DC 20433
United States

Belita Manka

Legal Department, World Bank ( email )

1818 H Street, NW
Washington, DC 20433
United States
202 47 39691 (Phone)

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