Personal Debarment for Non-Distributive Corporate Misconduct: On the Efficacy of Debarring the Individual from Government Contracts for Collective Wrongdoing

Abstract

Debarments under the federal government procurement system are not supposed to punish but only to protect the public interest; they are unconcerned with past misconduct, only guarding the government from dealing with contractors who are not presently responsible. Although the system fancies itself indifferent to punishment, it depends on the justice system to adjudicate which firms and people endanger the public interest. And the justice system is fundamentally about punishment for past misconduct. Whatever the debarment system’s pretenses may be, the criminal law’s purpose is to punish the guilty, debarments are thus only one step removed from judgments of moral culpability, and effectively protecting the public interest depends on the justice system’s effectiveness. Like the justice system on which it depends, the debarment system concentrates too much on individual misconduct, neglecting the significance of collective misconduct. This Article examines the grounds on which a corporation itself may be morally responsible. The purpose is to illuminate unseen dangers corporations may pose. Debarring individuals, even those in high positions, for collective misconduct may be ineffectual scapegoating. Recognizing that some misconduct is collective may help debarment officials to better identify the locus of responsibility and issue debarments accordingly. And recognizing the existence of collective misconduct may lead policymakers to consider if the system should concentrate on corporate governance instead of debarments.