The steady increase in federal spending and recent high-profile criminal and civil fraud matters involving federal contractors have resulted in closer scrutiny of federal contractors in general. In addition, regulations impose additional compliance and disclosure requirements on contractors. [See Nov. 2007 Final FAR Rule: Contractor Code of Business Ethics and Conduct; Nov. 2008 Final FAR Rule: Contractor Business Ethics Compliance Program and Disclosure Requirements]. As a result of these initiatives, it is more critical than ever to ensure that your company's federal procurement policies, practices and procedures conform with current federal laws and regulations.
Wiley Rein routinely advises contractors on the application of ethics statutes and regulations, including restrictions on the activities of former government employees, and has assisted contractors in establishing and/or enhancing their ethics and compliance programs to ensure that those programs are comprehensive and current. Wiley Rein has also conducted numerous compliance audits for contractors in all industries that provide services to the Government. These audits involve assessing current government contracts policies, generally through on-site audit and review of relevant documents and interviews of pertinent management and staff; identifying existing ethics/compliance issues, weaknesses and key areas of risk; proposing and assisting with implementation of recommendations for mitigating known risks; and providing targeted quarterly reviews of specific areas. Typical areas of inquiry in an audit include assessment of:
- Compliance with applicable statutory and regulatory requirements;
- Compliance with prime or subcontract terms and conditions;
- The efficacy of the company's code of conduct and areas for improvement, or the preparation of an appropriate code of conduct when necessary;
- Compliance with socioeconomic/reporting requirements;
- Security clearance/export compliance procedures (where applicable);
- The nature and extent of employee training, including the "tone at the top" set by management; and
- Internal controls designed to ensure overall compliance with government contracting requirements.
Where a compliance audit has been initiated in connection with, or in response to, a government investigation, Wiley Rein attorneys also work with the company to develop and implement the corrective action plans and other remedial measures critical to mitigating the risk of suspension or debarment based on any alleged misconduct. Along with our colleagues in the International Trade Practice, who lend additional expertise on export control issues, and in the Election Law & Government Ethics Practice, who counsel clients on ethics, lobbying and the Foreign Corrupt Practices Act (FCPA), Wiley Rein helps contractors ensure that their compliance policies are robust and incorporate the latest legal requirements.
ISSUE: WINTER 2013