Compliance

On August 18, the Bank of New York Mellon Corporation (BNY Mellon) agreed to pay $14.8 million to settle allegations that it had violated the U.S. Foreign Corrupt Practices Act (FCPA) by providing internships to family members of foreign officials affiliated with a Middle Eastern sovereign wealth fund the bank sought to manage.

According to the settlement order, which is available here, BNY Mellon provided the internships at the request of the foreign officials, even though the prospective interns failed to meet the bank’s hiring criteria and were less than exemplary employees. In so doing, the bank violated the FCPA’s anti-bribery provisions and demonstrated that it lacked internal controls sufficient to ensure its hiring process would not be used to improperly obtain or retain business.

This settlement highlights two essential FCPA-compliance points.Continue Reading When Intern Season Gets Hot: the Perils of Improper Hiring Under the FCPA

I recently co-authored an article with my colleagues John Kelly, Bryan King and Robert Platt discussing the vital steps that government contractors should take when conducting an internal investigation. As outlined in the article,  the following measures are key components of any internal investigation:

  1. Assembling an appropriate investigation team
  2. Preserving privilege
  3. Preparing an investigation

…

On June 16, the U.S. Justice Department (DOJ) announced that it had concluded a non-prosecution agreement (NPA) with IAP Worldwide Services, Inc., a Florida-based government contractor, related to apparent violations of the Foreign Corrupt Practices Act (FCPA). DOJ also announced that a former vice president of IAP pleaded guilty to conspiracy to violate the FCPA. IAP agreed to pay more than $7 million to resolve the matter; sentencing for the former vice president is scheduled for September 2015.

Background. IAP provides facilities management, contingency operations, and professional and technical services in contracting capacities to U.S. and non-U.S. governments. According to DOJ, the violations occurred in connection with a surveillance program the government of Kuwait sought to develop. An agent of IAP contracted with the Kuwaiti government to perform services under the first phase of the program. DOJ alleged that, when the agent was paid for its services, it transferred money to IAP, which in turn steered funds to a Kuwaiti company to kickback to Kuwaiti government officials.Continue Reading Government Contractor Fined for FCPA Violations; Former VP Enters Guilty Plea

Please join us on Tuesday, June 9.

GK event June 9, 2015

8:00 a.m. – 8:30 a.m.
Networking Breakfast (Complimentary)

8:30 a.m. – 12:15 p.m.
TBA Program ($165 for members and $320 for non-members)

Bass, Berry & Sims PLC
The Pinnacle at Symphony Place
150 Third Avenue South, Suite 2800
Nashville, TN 37201
Parking in the Pinnacle garage will be validated.Continue Reading Join us for Government Contracting in Tennessee

A Maryland-based construction company required to pay “prevailing wages” under a Federal government contract recently settled for $400,000 claims that it had violated the False Claims Act (“FCA”) by failing to properly supervise lower-level contractors in the payment of prevailing wages to their workers. The case serves as a reminder that government contractors who fail to ensure compliance with wage requirements – whether under the Davis-Bacon Act (“DBA”), Service Contract Act (“SCA”), or Walsh-Healy Public Contracts Act (“PCA”) – can face significant liability. It also highlights the ongoing expansion of the federal government’s battle against procurement fraud.

Many Government Contractors Are Subject to a Prevailing Wage Rate Requirement

Most government contractors who provide services; do construction, alteration or repair work on public buildings; or manufacture certain goods are subject to a prevailing wage requirement. Those requirements include geographically determined wage rates and fringe benefit rates set by the Administrator of the Wage and Hour Division of the U.S. Department of Labor (“DOL”) for various labor classifications. Where a government contract incorporates such a requirement, government contractors, including their subcontractors, are required to pay wages at least as high as the prevailing wage rates.Continue Reading The Growing Risks of Non-Compliance with Wage Rate Determinations

Billions of dollars every year are spent in the United States on “Federal health care programs,”¹ including Medicare, Medicaid and Tricare, among others.² For individuals and entities in the healthcare industry, reimbursement from these programs is a vital component of their business. However, many are unfamiliar with the authorities under which the Department of Health and Human Services (“HHS”) excludes individuals and entities from participation in Federal health care programs, nor are they familiar with the nuances of the exclusion program. Understanding the types of violations that can trigger exclusion, as well as the process for responding to a proposed exclusion, is necessary for parties receiving reimbursement from Federal health care programs to ensure their compliance program is adequate and to understand the steps that must be taken to mitigate the impact of a proposed exclusion.

Introduction

Pursuant to sections §1128 and §1156 of the Social Security Act (the “Act”), HHS, specifically the Office of the Inspector General (“OIG”), has the authority to exclude individuals and entities from Federal health care programs. Exclusion means that items and services furnished, ordered or prescribed by the excluded individual or entity are not reimbursable under Medicare, Medicaid and all other Federal health care programs. While exclusion by HHS is similar in some respects to suspension and debarment, it does not bar excluded parties from being awarded federal contracts and grants. Once a party is excluded from participation they are added to the List of Excluded Individuals/Entities (“LEIE”) maintained by HHS and the exclusion appears on the System for Award Management (“SAM”). Any healthcare entity participating in Federal health care programs that hires or contracts with an individual or entity on the LEIE may be subject to civil monetary penalties, so it is important that they establish processes and procedures to routinely (monthly is recommended) check the LEIE to ensure new hires, current employees, and potential contractors or subcontractors are not excluded.Continue Reading Exclusions by the Department of Health and Human Services – Authorities and Procedures

We are all familiar with the “revolving door” between the public and private sector – government employees will often leave their posts and cross over to the private sector to capitalize on their experience in the government. However, when government employees make that transition, it is imperative that they consider the federal conflict of interest laws, which may prohibit them from taking certain private sector positions and, at minimum, require them to be screened from particular types of work on a go forward basis. Failure to consider these laws could lead to severe consequences. A recent plea agreement highlights the importance of remaining mindful of these rules when negotiating post-government employment.

On Tuesday, March 11, 2015, former U.S. Air Force Captain Adam J. J. Pudenz pleaded guilty in Iowa federal court to violating restrictions on post-government employment and making a false statement to law enforcement agents. In 2010, Pudenz served as a U.S. military contracting officer in Afghanistan and worked on several U.S. government contracts related to the purchase of clothing and boots from an Afghan trading company. Pudenz admitted that before leaving his position as a contracting officer in Afghanistan, he negotiated future employment with the same Afghan company. Pudenz ultimately began working for the trading company and lobbied the U.S. government on matters related to the contracts he had previously managed.Continue Reading Recent Plea Deal Highlights Importance of Post-Government Employment Conflicts of Interest

When a contractor intends to subcontract 70% or more of the total cost of the work to be performed on a certain contract or order this is considered a pass-through contract.  Concerns that contractors are being overpaid for no, or negligible, added value for work performed by lower-tier subcontractors is one of the biggest issues in pass-through contracts.  Section 802 of the NDAA for FY 2013 mandated the Department of Defense (DOD), the Department of State (State) and the United States Agency for International Development (USAID) to issue guidance and regulations to ensure contracting officers take additional steps prior to awarding pass-through contracts.  Specifically, contracting officers must consider alternative contracting arrangements and make a written determination that the contracting approach selected is in the best interest of the government prior to awarding pass-through contracts.  GAO recently conducted an audit on these three agencies to evaluate progress of the implementation of these requirements.

In its report, GAO found that the three agencies’ review and justification of pass-through contracts is incomplete.  While USAID and State have taken some action to implement Section 802, DOD has yet to take any action.  Moreover, none of the agencies were found to have provided guidance to assist contracting officers in performing these additional tasks.  Thus, contracting officers have been left with little to no direction on how to perform the required analysis of alternate acquisition approaches or determine the feasibility of contracting directly with the proposed subcontractors.  Furthermore, contracting officers have not been advised as to what type of documentation is necessary or where to record their determinations.

Continue Reading GAO Finds that Agencies Have Failed to Provide Oversight Guidance for Pass-through Contracts

I recently co-wrote an article with John Kelly, Lindsey Fetzer and Shuchi Parikh that outlined three recent cases in which the Department of Justice pursued joint criminal and civil action against a government contractor. In the article we discuss these cases and provide guidance on what government contractors can do to avoid exposure to both…

From the Bass, Berry & Sims Blog Network
From the Bass, Berry & Sims Blog Network

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