By RICHARD W. STEVENSON

Published: November 12, 1990

 

Twenty-five of the 100 largest Pentagon contractors have been found guilty of procurement fraud in the last seven years, some more than once. Yet not one has been barred from Government contracting, and the renewed debate over how to discourage such fraud has produced no easy solutions.

The number of convictions and guilty pleas has accelerated in the last two years, with 16 cases involving 14 of the largest weapons makers. They include Boeing, Grumman and Teledyne, which made payoffs to obtain confidential Pentagon documents; Rockwell International and Emerson Electric, which overcharged the Government, and Fairchild Industries and Northrop, which failed to test certain weapons components or falsified the test results.

Prosecutors, members of Congress and Pentagon officials have long wrestled with how to punish contractors guilty of wrongdoing, trying to balance the extreme difficulty of cutting all ties to companies that build the nation’s most sophisticated weapons against the need to find an effective deterrent to fraud. The recent cases have focused more attention than ever on the topic, setting off a debate over whether the contractors should be permitted to continue doing business with the Government and whether there might be effective alternative sanctions. ‘Need to Find a Middle Ground’

“Debarment is such a draconian penalty that it’s almost never used,” said Representative Charles E. Schumer, the Democrat of Brooklyn who is chairman of the House subcommittee on criminal justice. “We need to find a middle ground so that thousands of jobs and the national security won’t be jeopardized but strong enough that it will serve as a deterrent.”

Spurred by the increase in fraud cases, Congressional committees have held numerous hearings in the last several months, and lawmakers are considering several proposals. One would ban a contractor from all Government business, a process known as debarment, for several years after a second fraud conviction. Another would prohibit companies from earning any profit on their Government work for a specified period. A third would call for a court-appointed “special master” to oversee all of a contractor’s operations. Congress adjourned without taking action on the proposals, but legislators said they plan to address the subject in the next term.

“Congress has allowed this issue to fester for too long,” said Representative Christopher Shays, the Connecticut Republican who is a member of the House subcommittee on legislation and national security. “We’re going to be bulldogs on this now, and there’s no question there’s bipartisan support.” Fines and Penalties for Fraud

In fraud cases contractors already face court-imposed criminal and civil fines and penalties, sometimes of millions of dollars. In some cases, the Pentagon has tried to discipline contractors through behind-the-scenes pressure to make management changes. Pentagon officials have long argued that it is impractical to go further, because in many cases a company is the sole builder of a weapon and it could take years, and enormous expense, to find alternative suppliers.

Many members of Congress and some prosecutors, however, are increasingly arguing that only the threat of being barred from Pentagon contracts for several years, or similar sanctions, is a sufficient deterrent.

Mr. Schumer has proposed what he says is a realistic middle ground. Under his proposal, the courts would be required to appoint an outside representative to oversee the activities of a contractor convicted of fraud twice within a specified period. The special master would have broad authority to insure the company was operating ethically and that it made full restitution for past crimes.

Mr. Shays said another alternative that deserves consideration in Congress is allowing existing contracts to be completed but barring any new contract awards for a period of several years if a company is convicted or found not to be cooperating fully with a Government investigation.

Small contractors are often barred by the Pentagon from doing business with the Government for several years. But the large contractors, on which the Pentagon relies most heavily, have never faced anything but temporary suspensions of their right to compete for contracts. The suspensions usually last a few months and inflict little, if any, financial pain. Suspensions are almost always limited to a specific company division.

The Pentagon, when faced with a big procurement scandal and pressure from Congress and the public to act against a contractor, sometimes quietly presses a company to make changes in its operations or in its management. After a series of scandals involving the General Dynamics Corporation during the late 1970’s and early 1980’s, the Pentagon put pressure on the company in various ways, including a brief suspension. The company brought in an outsider, Stanley C. Pace, as its new chief executive with a mandate to clean up its operations and image. Pentagon Policy

The Pentagon says its policy is to use suspension and debarment only to protect the Government and the taxpayer from further fraud, and not as punishment. Punitive action, it adds, is properly limited to the judiciary.

“The current system is working,” said Eleanor Spector, the Deputy Assistant Secretary of Defense for Procurement. “We have the tools to suspend or debar the companies involved, and anything that smacks of punishment should be the role of the courts.”

While the fines imposed in court cases are often substantial, many legislators and experts contend they do little to insure that contractors will not continue to cheat.

“Corporate executives who persistently engage in this kind of theft from taxpayers ought to know they will not just pay a fine that often doesn’t cover the cost of correcting the fraud, or throw an underling to the prosecutors,” said Representative George Miller, a California Democrat who has proposed legislation that calls for debarment for a company after two convictions in five years.

Mr. Miller and other supporters of stricter sanctions point to a recent case involving the Northrop Corporation. Northrop’s False Test Results

Northrop was indicted last year on charges of falsifying test results on missile and aircraft components. The Pentagon suspended the division of the company responsible for the tests. But because the suspension applied only to direct purchases by the Government, it did not interrupt the division’s work supplying a component to the companies that assemble the Harrier jet for the Marine Corps.

Although Northrop pleaded guilty to the test-fraud charges earlier this year, the Pentagon is now considering rescinding the ban altogether. Record of the Last Two Years

In half of the 16 cases involving large contractors in the last two years, the Pentagon took no action against the company. In the other cases, companies or their divisions were suspended for a period of months from receiving new contracts while the Pentagon sought assurances that they were operating responsibly.

In some cases, the companies lost a chance to win large new contracts during their suspensions.

As often as not, however, the suspensions had little effect. Teledyne Inc.’s electronics division was suspended last year for six months, after it was implicated in a Pentagon bribery scandal. Despite the suspension, the company was allowed to continue making its products and shipping them to the Government under existing contracts. Suspension’s Effect on Boeing

After admitting to trafficking in confidential Government documents, the Boeing Company’s office near Washington was suspended for three months starting last November, and personnel from that office were barred from dealing directly with the Pentagon.

Boeing assigned people from other offices to deal with the Pentagon, and, since the suspension did not affect any manufacturing plants or specific programs, there was no direct impact, a Boeing spokesman said.

Some companies do not even suffer the inconvenience of a suspension. The Emerson Electric Company pleaded guilty in May to four felony counts related to overcharging the Pentagon for some electronics components. The company paid a $40,000 criminal fine and a $14 million civil settlement but was not suspended.

Correction: November 16, 1990, Monday, Late Edition – Final

A front-page article on Monday about military contract fraud misstated the charges to which the Boeing Company pleaded guilty this year. Boeing admitted having illegally obtained two classified Pentagon budget documents, but the company did not admit having made payoffs to obtain them, and prosecutors said during the case that there was no evidence of monetary payoffs.

 

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