Georgia Tech Procurement Assistance Center

Intelligently evolving your corporate compliance program

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In June 2020, DOJ updated its guidance on the Evaluation of Corporate Compliance Programs.  The guidance, which was first issued in 2017 and updated in 2019, lays out a series of factors for prosecutors to consider when assessing the effectiveness of corporate compliance programs as part of making charging decisions and negotiating resolutions.  The overarching theme of the updated guidance, which provides a roadmap for designing and implementing compliance programs, is a renewed emphasis on the substance and adequacy of resources made available to the compliance program.  It also reflects a focus on the need to both continually assess whether the compliance program is working, and use data in a meaningful way to assess the program.

Leadership in DOJ’s Fraud Section has “embraced, wholesale, the proposition that data can and does serve as a significant indicator of fraud, foreign bribery, and other white-collar offenses.”  In November 2020, at the Latin American Compliance Conference, Acting Deputy Assistant Attorney General Robert Zink emphasized the premium that DOJ is placing on data analytics.  Zink explained that DOJ itself uses data analytics in the Foreign Corrupt Practices Act, healthcare fraud and securities fraud spaces to identify leads and potential misconduct.  Zink went on to say that to the extent a company has “ready access to data that could be probative of misconduct, [DOJ] would hope and expect they would avail themselves of the opportunity to mine that data to figure out whether bad stuff is happening.”  And so, Zink concluded, “companies that invest and take the time to invest and develop robust data analytics programs are certainly viewed favorably” by Zink and other prosecutors evaluating corporate compliance programs.

Continue reading at:  McDermott Will & Emery

Small businesses: Why and how to set-up or enhance your ethics and compliance program

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It’s been ten years since the Federal Acquisition Regulation (FAR) was amended to require government contractors to have a business ethics and compliance program – that’s right, it’s a requirement in every government contract and in most subcontracts!  Aside from being a requirement in every contract and a core component of a small business’ “present responsibility” (i.e. eligibility to be a contractor at all), recent developments have made it essential for small business to address compliance now.

In particular, the Department of Justice has issued guidance as to what it expects from an organization’s ethics and compliance programs, and has reiterated that it will not tolerate companies that lack an effective program.  In other words: get caught without one, and that may be the end of your company.  See Holland & Knight’s post about the DOJ Guidance.  The good news is there has been a lull in new FAR and other regulatory requirements under this Administration, so this is a good time to play some catch up.

But let’s face it, many small businesses are not where they should be, and some others are not even close.  So why aren’t small businesses better prepared and how do small businesses move ethics and compliance programs from a perennial back burner issue to the forefront?

Continue reading at:  Holland & Knight’s Government Contracts Blog

 

Spring cleaning tips for government contractors

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If you are a government contractor, you should consider this to be the season to do some spring cleaning in terms of your government contract compliance programs and procedures.  Not to be an alarmist, but there are numerous areas you can review now and, if you should find some compliance deficiencies, you still have ample time to get your house in order before an agency audit or the deadline for submission of certain government reports.

Set forth below is a list of areas you may want to clean up…

Continue reading at:  Blank Rome’s Government Contracts Navigator

DOJ refreshes guidance document on evaluation of corporate compliance programs

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Even before April’s release of the Department of Justice (DOJ) Criminal Division’s 2019 Evaluation of Corporate Compliance Programs (2019 Guidance), those operating within highly-regulated industries like government contracting and health care knew the importance of having an effective, well-tailored compliance program. 

Largely tracking the DOJ Fraud Section’s 2017 Guidance (discussion of the 2017 document is available here), the new, longer 2019 Guidance adds more detailed examples to aid federal prosecutors in evaluating compliance programs.  By making this information public, DOJ is providing companies a blueprint for the design, implementation, and evaluation of those programs that will satisfy the scrutiny of a criminal investigation.

Read more at: Wiley Rein

OFCCP’s new voluntary program exempts ‘high-performing’ contractors from compliance evaluations

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On February 13, the Office of Federal Contract Compliance Programs (OFCCP) issued Directive 2019-04 which establishes a framework for the Voluntary Enterprise-wide Review Program (VERP). Under this new program, OFCCP will work with “high-performing” contractors to achieve sustained, corporate-wide compliance with the laws and regulations OFCCP administers and enforces requiring nondiscrimination and equal employment opportunity.

Notably, participating contractors are removed from the pool of contractors scheduled for compliance evaluations.

Eligibility for Participation

Contractors can apply to the program beginning in fiscal year 2020. As part of the application, OFCCP will conduct compliance reviews of the contractor’s headquarters location as well as a sample or subset of establishments.

Contractors must meet established criteria verifying basic compliance with OFCCP’s requirements and must further demonstrate their commitment to and application of successful equal employment opportunity programs on a corporate-wide basis.

Keep reading this article at: https://governmentcontractsnavigator.com/2019/02/20/ofccps-new-voluntary-program-exempts-high-performing-contractors-from-compliance-evaluations

General contractor can be cited for subcontractor safety violations

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A U.S. Appeals Court judge for the 5th Circuit in New Orleans has ruled that OSHA can cite general contractors — even if their employees are not affected — for subcontractor safety violations.

The ruling came after Labor Secretary Alexander Acosta requested that the 5th Circuit review an OSHA administrative court decision that said a general contractor could only be cited for safety threats to its own employees.

In 2017, a Denver Occupational Safety and Health (OSH) Commission administrative judge ruled that Hensel Phelps could not be cited by the agency for safety hazards created by one of its subcontractors on a project in Austin, Texas. However, the 5th Circuit said more recent rulings have rendered the case law on which the administrative judge based his decision “obsolete” and said that Hensel Phelps could be held responsible for safety on the multi-employer site as a “controlling employer.”

According to court documents, Hensel Phelps hired subcontractor Haynes-Eaglin-Waters (HEW) for a library construction project, and HEW, in turn, hired CVI Development as a sub-subcontractor to perform demolition, excavation and other work. Hensel Phelps and HEW project staff allegedly directed CVI to work in an unsafe excavation area. An OSHA inspector cited both Hensel Phelps and CVI for safety violations. The OSH Commission will now review the matter again, taking the 5th Circuit’s decision into consideration.

Keep reading this article at: https://www.constructiondive.com/news/court-general-contractor-can-be-cited-for-subcontractor-violations/544678/

 

Slight decrease in FY17 suspensions and debarments, but contractors should take note of the continued high level of activity

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On July 31, 2018, the Interagency Suspension and Debarment Committee delivered its annual report to Congress on the status of the suspension and debarment system. The report shows a continued high level of activity relative to the last decade and serves as a reminder that exclusion from the federal marketplace continues to be a risk for contractors that do not “cut square corners” with the government.

The FY2017 report shows a modest decrease in the number of suspensions, proposed debarments, and debarments from the last fiscal year, a trend that has continued since the high-water mark set in FY2014.

But it also notes that the number of exclusions in FY17, over 3,000, are almost double those reported when the Committee first began formally tracking the data in FY09, approximately 1,800.

The decline in the total number of suspensions, debarments, and proposed debarments should not be viewed as an indication that suspension and debarment officials (SDOs) across the government are not vigilant or that they are not taking appropriate action when unethical individuals or contractors pose a threat to the public interest. Rather, it is likely that growing proactive engagement by contractors with SDOs even in the absence of lapses has decreased the need to suspend or debar contractors when problems do occur by ensuring that SDOs understand those companies’ commitment to ethics and compliance and that appropriate remedial actions are taken promptly where there is cause to question whether a company should be permitted to continue contracting with the government.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=742270

Security assessments soon may be part of DoD government contracts acquisition process

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Identifying threats and improving network and supply chain security has been an ongoing effort by Congress and the Department of Defense (DoD) for the past several years.

Congress has included multiple provisions in the annual National Defense Authorization Acts to spur action by the DoD to address weaknesses in contractor supply chains for electronic parts and vulnerabilities to cyber threats in contractor information technology systems. In turn, the DoD has amended the Defense Federal Acquisition Regulation Supplement (DFARS) to impose new performance requirements on contractors and subcontractors in DoD procurement contracts. This cascading effort of turning policy into contract performance has been steady but slow and of questionable efficacy.

A new initiative under consideration by the DoD could change that. In June testimony to Congress, the DoD said it has started a new initiative known as “Deliver Uncompromised” to “elevate the private sector’s focus on security.” The DoD’s goal is to establish security as a “fourth pillar” in acquisition, “on par with cost, schedule and performance.” The hope is to create incentives for industry to “embrace security, not as a ‘cost center,’ but as a key differentiator” in competitions for procurement contracts.

In August 2018, the nonprofit group Mitre Corporation (Mitre) released a report called “Deliver Uncompromised,” which describes how the DoD and the intelligence community face daily strategic attacks from foreign adversaries in the supply chain domain (e.g., software, hardware, and services) and cyber domain (e.g., informational technology and cyber-physical such as weapons systems). Mitre’s report calls for a unified focus of resources from both the DoD and government contractors to prioritize risk mitigation through enhanced infrastructure and better coordination.

While the DoD cannot require private companies to invest in specific security measures, the Mitre report recommends that the DoD use its purchasing power and regulatory authority to influence and shape the conduct of the DoD suppliers. For example, the DoD may begin defining procurement requirements with new security measures, or rewarding contractor proposals with superior security measures by elevating security as a primary metric for evaluation during the source selection process. The DoD could also include terms and conditions in its contracts that impose security requirements, and then use those contractual terms post-award to monitor contractor compliance.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=737662

GTPAC has created a video and a template to help businesses comply with DoD’s cybersecurity requirements.  These resources appear at: http://gtpac.org/cybersecurity-training-video/

Something old, something new: Contractor recognition and AAP verification on the horizon at OFCCP

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On August 24, 2018, the Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued three new directives, 2018-05, 2018-06, and 2018-07.   While directive 2018-05 has received most of the attention because it focuses on reviewing a contractor’s compensation practices during a compliance evaluation, directives 2018-06 and 2018-07 should not go unnoticed.

During OFCCP Town Hall Meetings earlier this year, contractors suggested a return to recognition programs such as the Exemplary Voluntary Efforts (EVE) Award or the Secretary of Labor’s Opportunity Award. Both programs were instituted in the late 1980s to recognize federal contractors for exemplary efforts in advancing fair employment practices and programs. Both programs were ultimately rescinded in 2013.

Recognizing that awards and recognition programs may incentivize contractor compliance, the OFCCP issued directive 2018-06 titled, “Contractor Recognition Program.”  While short on details, the directive describes several tools and resources under development:

  • A contractor recognition program that highlights implementable best or model contractor practices;
  • A contractor mentoring program that uses contractors to help their peers improve compliance; and
  • Other initiatives that provide opportunities for contractors to collaborate or provide feedback to OFCCP on its compliance assistance efforts.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=732786

OFCCP launches new resource for contractors

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The Office of Federal Contract Compliance Programs (“OFCCP”) has announced that it has launched a new resource for federal government contractors called the “Contracting Officer Corner.”

OFCCP touts the new website as constituting “a central repository of resources, including a new pre-award process guide and downloadable workplace posters, for both federal agency contracting officials and federal contractors.”

The aim of the website is to “assist and ensur[e] that federal contractors meet their equal employment opportunity obligations,” and to “enhance compliance assistance.”

Keep reading this article at: https://www.natlawreview.com/article/ofccp-launches-new-resource-contractors

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