The Senate passed important contracting reforms Sept. 17 when it approved the FY 2009 Defense Authorization Act (S. 3001) by an 88-8 vote. Among other measures, the legislation included a provision to create a national contractor misconduct database. The Senate had been debating the legislation behind the scenes for months, and majority Democrats had attempted to pass the authorization bill multiple times since the House passed its version in late May. The upper chamber was unable to garner 60 votes to limit debate on the bill throughout the summer because of a variety of objections from the Republican minority, including a desire to first address energy issues and transparency of earmarks.

After Senate Republicans dropped their filibuster of the bill over unrelated energy policy concerns in early September, progress was then held up because of another round in the fight over earmark policy. The Defense Authorization bill contains over $5 billion in earmarks that are listed in the committee report for the bill rather than within the text of the legislation. In addition, the text of the bill instructs that earmarks included in the report language should be considered part of the bill — in direct opposition to an executive order issued by President Bush in January.

Sen. Jim DeMint (R-SC) — one of the Senate's head earmark hawks — attempted to offer an amendment to effectively remove the earmarks in the committee report. This amendment would have deleted the section in the bill instructing that the report language on earmarks be followed. Sen. John Warner (R-VA) attempted to strike a compromise between DeMint and Armed Services Committee Chairman Carl Levin (D-MI) by proposing that an eventual conference committee bill list the earmarks in the legislative text. Neither DeMint's amendment nor Warner's compromise were considered by the full Senate. Although these and many other amendments were not considered, a good number of those proposals could be added to the bill in a conference with the House.

One area where transparency and accountability advocates are hoping for further improvement is in the scope and access of a proposed contractor misconduct database. The database would be a compilation of information regarding integrity and performance of entities awarded federal contracts and grants, including details about contractors that have defrauded the government, violated laws and regulations, had poor work performance, or had their contracts terminated for default. Much of the information required in the database is already publicly available from other government sources.

As originally proposed in separate legislation by Rep. Carolyn Maloney (D-NY) and Sen. Claire McCaskill (D-MO), the database was designed to apply to all large government contractors and be accessible both to government employees and the public. In the final version of the Senate authorization bill, however, the database only applies to Department of Defense contractors and is accessible only to government employees, not the public. These restrictions on the database would greatly limit both its value and its effectiveness.

The Project on Government Oversight organized more than 30 national organizations in May to urge Congress to structure the database as originally conceived — covering all types of contractors and being open to the public. Although the effort to keep the database transparent has yet to be successful, the passage of language requiring the database is still a significant accomplishment and, if used correctly, should be a powerful tool for preventing risky contractors from receiving federal contracts.

Congress is currently working furiously to reconcile the House and Senate versions of the authorization bill in the hopes of sending a final bill to President Bush by the target adjournment date of Sept. 26. Conference committee negotiations will have to take into consideration a staggering number of objections to the legislation from the president, including disagreements over the misconduct database and two smaller restrictions on using private contractors for security functions in combat zones and allowing contract employees to participate in detainee interrogations.