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Ours Is to Reason Why: Exploring Motivating Principles for Debarment Systems

Tue Sep 28, 2021

Ours Is to Reason Why: Exploring Motivating Principles for Debarment Systems

Journal article written by Attorney Alix Town published in the American Bar Association Contract Law Journal Summer 2021 Issue

Abstract

Debarments and exclusions are often discussed essential anti­corruption ele­ments of procurement systems. Yet why debarment or exclusion is incorpo­rated in a procurement system is rarely explored. Motivating principles are important because they establish the metric upon which the success and functionality of the system can be measured. This article asserts that there are three potential motivating principles for debarment or exclusionary sys­tems: punishment, business decisions, and rehabilitation. A punishment based system uses the criminal and civil legal process to establish the basis for the contractor’s exclusion. A business decision based system seeks to act in the best business interest of the government in its commercial capacity. A rehabilitation based system looks to reform contractors that have failed to meet the government’s standards. Most importantly, there is no one “right” why and countries can have multiple systems with different “whys.” Each “why” has a purpose and a rationale that may be appropriate given the needs and evolutionary stage of a particular government, the procurement system, and the public policy that is being enacted. This article explores the benefits and the drawbacks for each “why” in order to guide a reasoned discussion to deter­ mine the best underlying principle for a debarment or exclusionary system.

Read the full version here:

Alix Town Public Law Contracts Journal 2021

or via the American Bar Association website here

©2021. Published in Public Contract Law Journal Summer 2021, Vol. 50, No. 4, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.


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