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

Fed watchdog wants DoD to have better insight into contractors’ safety records

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The U.S. Government Accountability Office, a congressional “watchdog,” has issued recommendations to the U.S. Department of Labor’s OSHA and the Department of Defense aimed at helping them better track defense contractor safety violations. GAO was tasked with reviewing safety and health records of contractors and how they were handled by DoD, the largest contracting agency in the government, with $320 billion in contracts in 2017.

The GAO report noted that OSHA’s inspection data does not include a corporate identification number, which means “website users will likely have difficulty obtaining accurate information on individual companies’ previous violations,” such as whether the violations occurred on defense projects. DoD also may be missing opportunities to consider a company’s safety performance when awarding contracts, it continued, because only a few parts of the agency rate contractors in this category.

GAO recommends that OSHA consider requiring a corporate identification number as part of the information it collects during an inspection, and that DoD officials use OSHA’s website to find contractor safety information and consider requiring a safety performance rating for contractors engaging in construction and other risky types of work.

Keep reading this article at: https://www.constructiondive.com/news/fed-watchdog-wants-dod-to-have-better-insight-into-contractors-safety-reco/550792/

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

OFCCP releases three new directives for federal contractors

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The Office of Federal Contractor Compliance Programs’ fiscal year 2019 directives rescind the Active Case Enforcement compliance review procedures, create early resolution procedures, and enhance compliance assistance through the Help Desk and opinion letters.

The U.S. Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP) has issued three new directives, building on this administration’s nine directives issued in fiscal year 2018. The directives, effective immediately, are all geared toward greater transparency, compliance assistance, and enhanced guidance for federal contractors, while maximizing OFCCP’s limited resources.

Compliance Review Procedures, Directive 2019-01, rescinds Directive 2011-01 and provides that reviews will be conducted in accordance with OFCCP’s Federal Contract Compliance Manual (FCCM). The rescinded 2011 directive set out Active Case Enforcement (ACE) compliance review procedures. OFCCP states that the agency has embedded valuable components of ACE into its standard operating policies and procedures and updated the FCCM in August 2014 to incorporate the full desk audit procedures and closure letter templates. OFCCP concludes that in addition to other agency guidance, such as recent directives on transparency, compensation analysis, use of predetermination notices, and focused reviews, there is no longer a need for the ACE directive to exist as a freestanding guidance document.

Early Resolution Procedures, Directive 2019-02, “will help contractors and OFCCP achieve their mutual goal of equal employment opportunity in federal contracting and reduce the length of compliance evaluations through early and efficient resolutions.” The new procedures apply to all compliance evaluations in which a predetermination notice, notice of violation, or show cause notice has not been issued as of November 30, 2018. The agency’s intent is that the procedures will allow OFCCP and contractors with multiple establishments to cooperatively develop corporatewide compliance. Significantly, depending on the type of violation, if the contractor and OFCCP agree to corporatewide compliance and other terms, OFCCP will not schedule that establishment or all establishments covered by the agreement for a new compliance evaluation for the five-year period, concurrent with monitoring.

Opinion Letters and Help Desk, Directive 2019-03, announces OFCCP’s intention to start issuing opinion letters to parallel the use of this type of guidance tool by other Department of Labor agencies. The directive also announces the agency’s desire to “enhance its Help Desk by making certain Help Desk [inquiries] and responses dynamically available and searchable as a self-service option on OFCCP’s website.” OFCCP staff are directed to implement these enhancements and develop a process for issuing opinion letters.

What do these new directives mean for federal contractors?

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=761632

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

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 promises clear guidance and consistency, laying out a program of carrots and sticks

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In his first two speeches after taking over as Acting Director of the Office of Federal Contract Compliance Programs (OFCCP), Craig Leen emphasized a commitment to the rule of law, promised to provide contractors with clear guidance and transparent enforcement processes, offered incentives for voluntary compliance, and outlined plans to identify and audit government contractors that are ignoring their obligations.

His speeches came at the beginning and end of a four-day Industry Liaison Group National Conference held in Anaheim, California that was attended by HR compliance professionals and officials from the Department of Labor (DOL), OFCCP, and Equal Employment Opportunity Commission (EEOC). Although the conference included presentations from industry experts, the highlight for many was the opportunity to hear directly from the OFCCP, including its new acting director.

Mr. Leen opened the conference with a keynote address focusing on his goals for the OFCCP, including transparency, certainty, efficiency, and recognition. Mr. Leen highlighted OFCCP’s recent Directive 2018-01, which requires a Predetermination Notice (PDN) in all cases with preliminary individual and systemic discrimination findings. According to Mr. Leen, contractors can expect meaningful, good-faith conciliation.

Additionally, he noted that the OFCCP will no longer engage in fishing expeditions with information requests during a compliance evaluation. Instead, OFCCP compliance officers must have specific reasons for a request and be able to explain the need for the information upon request.

Importantly, in the information request context, Mr. Leen explicitly acknowledged that contractors will be given reasonable time to respond and that the age of “false deadlines” to show authority was over.

Keep reading this article at: http://www.mondaq.com/article.asp?articleid=727378

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