Financial
Fraud
Law
Report
Sheshunoff Information Services
July/August 2009
HEADNOTE: False Claims
Steven A. Meyerowitz
Recent Fourth Circuit Custer Battles Decision Broadens the Presentment Requirement and Definition
of Claim Under The False Claims Act
Drew A. Harker and John Newby
New Requirements and Increased Supervision Over Economic Stimulus and Bailout Funds May Increase
Potential False Claims Act Liability for Recipients
Mary Kendrick, John Wolfel, Michael Matthews, and Danielle Whitley
Anti-Fraud Regulatory Scheme Imposed on Stimulus Fund Contracts
Gail D. Zirkelbach
Engaging Foreign Agents: Heeding the Lessons from the Halliburton FCPA Enforcement Action
David W. Simon and Mike Koehler
Ponzi Schemes and Civil Aiding and Abetting Liability: Banks Beware
Marc J. Gottridge
Accountants, Consultants, Lawyers, & Bankers Beware: Circuit Split Regarding Standards for
Determining Primary Liability of Secondary Actors Under the Antifraud Provisions of the Federal
SecuritiesLaws
Suzanne J. Prysak and Tyler Garrett
Expanded Scope of Requirement to Report Foreign Bank and Financial Accounts
Jeffrey Liang and Gary Tober
The Good Faith Defense and Redeeming Investors from Fraudulent Investment Schemes: How
Unsophisticated Investors May Demonstrate Good Faith
Edward J. Hynes
Maximizing the Recovery of Assets from the Trustee’s Perspective
Aurora Cassirer and Lee W. Stremba
Anti-Fraud Regulatory Scheme Imposed
on Stimulus Fund Contracts
GAIL D. ZIRKELBACH
In this article, the author discusses the anti-fraud regulatory scheme that applies to federal contractors along with similar additional regulations governing contracts funded under the American
Recovery and Reinvestment Act (“ARRA”). Companies opting to accept federal contracts, including
those funded under ARRA, must be aware of these regulatory requirements and develop and implement robust compliance mechanisms to avoid costly legal infractions.
T
he American Recovery and Reinvestment Act
of 2009 (“ARRA” or “Act”) was enacted to
stimulate the United States economy and
counteract the recent economic downturn. Specifically, the Act injects $787 billion into the U.S. economy to be awarded by various federal agencies to U.S.
companies. Many large and small U.S. companies
facing declining business opportunities may choose
to enter into ARRA funded contracts with the federal
government, some for the first time, to generate much
needed revenue. The ARRA funds, along with the
billions of dollars spent every year by the federal government, do provide a wealth of opportunity for companies of all sizes at both the prime contract and subcontract level. There are, however, strings attached
for companies choosing to accept any federal funds.
Companies that accept federal funds, either directly or indirectly, must comply with a myriad of
compliance regulations. In particular, any time
the government purchases goods and services via
contract, a government-wide procurement regulation known as the Federal Acquisition Regulation
(“FAR”) applies.1 Any company choosing to accept
federal funds, including ARRA funds, must comply
with numerous FAR requirements. Federal contractors, therefore, must implement and maintain a robust
compliance program specifically geared to addressing
these requirements.
There are two specific FAR clauses that exist to
protect the government from fraud that are imposed
on virtually all contractors that accept federal funds,
including ARRA funds. The first clause requires contractors to adopt a comprehensive Code of Business
Ethics (“Code”) and the second requires compliance
with a “mandatory disclosure” rule. Moreover, any
contract funded in whole or in part by ARRA funds
carries additional compliance requirements, which
must be implemented by companies obtaining contracts funded by ARRA. This article will first discuss the two general FAR requirements and then the
stimulus specific requirements.
GENERAL FAR REQUIREMENTS
Code of Business Ethics
FAR mandates the adoption of a Code within 30
days of contract award for companies in receipt of
Gail D. Zirkelbach of Jackson Kelly PLLC has over 23 years of experience representing clients regarding various
government contract and compliance issues, claim preparation, internal investigations, and fraud litigation. She
may be contacted at gdzirkelbach@jacksonkelly.com. Ms. Zirkelbach wishes to thank Ricki Kelly for her assistance
in preparing these materials.
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contracts expected to exceed $5 million with a performance period of 120 days or more.2 Contractors
that hold contracts for the acquisition of commercial
items, which are items customarily used by the general public, or a contract that is performed entirely
outside the U.S. are, however, exempt from this requirement.3 If the Code requirement applies, the
contractor must make the Code available to each employee engaged in the performance of the contract
and take steps to promote an organizational culture
that encourages ethical conduct and a commitment
to compliance with the law.4 Further, contractors are
required to flow these requirements down to subcontracts that exceed $5 million unless the subcontract is
for the acquisition of commercial items or performed
entirely outside the U.S.5
The content of a federal contractor’s Code varies
depending on the size of the company and the nature
of work performed. All Codes, however, must address generally procedures for employees to report
any fraudulent conduct or suspicious activity internally to an identified Compliance Officer. Additionally, a Code should address the following topics if applicable to the company:
•
Specific regulatory compliance;
•
Export controls;
•
Financial reporting and records (including employee timekeeping, bidding for and negotiating
contracts, and requests for payment from the government);
•
Accounting for government property;
•
Organizational conflicts of interest;
•
Quality assurance; and
•
Human resource policies, including equal employment and affirmative action commitments.
In order to achieve a genuine culture of compliance, all federal contractors should implement employee training programs for all levels of the company, including the executive level. Moreover, federal
contractors that are required to implement a Code under the criterion identified above are also required to
implement a compliance program that includes training. Specifically, those contractors must take:
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…reasonable steps to communicate periodically
and in a practical manner the Contractor’s standards and procedures and other aspects of the
Contractor’s business ethics awareness and compliance program and internal control system, by
conducting effective training programs and otherwise disseminating information appropriate to
an individual’s respective roles and responsibilities.6
Thus, companies seeking federal contracts, including those funded by ARRA, that meet the criteria
must implement a Code and an ethics awareness and
compliance training program, if they are not already
in place. If a Code and training program are already
in place, they should be reviewed to ensure that applicable requirements are addressed. Additionally, even
if a contractor is not legally required to implement
a Code or an employee training program, it may be
advisable to do so to decrease the company’s risk of
other types of regulatory noncompliance.
Mandatory Disclosure Rule
As of December 12, 2008, all federal contractors
are required to self-disclose in a “timely” fashion certain violations of criminal law, violations of the civil
False Claims Act (“FCA”)7 and “significant overpayments” that occur “in connection with the award, performance, or closeout” of a government contract if
“credible evidence” that such violations have taken
place exists.8 Under these regulations the failure to report the required information is an independent ground
for suspension and debarment.9 Further, the reporting duty applies retroactively to any contracts closed
within three years, regardless of dollar value.10 This
reflects a significant change from previous regulations
that merely offered contractors leniency from the government in exchange for their voluntary disclosure of
violations. It remains unclear exactly how the new disclosure requirements will be implemented. However,
the government now has a new mechanism for combating contractor fraud, which will require all contractors receiving federal funds, including stimulus finds,
to be cognizant of their added responsibilities.
In addition to the FAR requirement discussed
above that applies to all federal contracts and subcon-
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Anti-Fraud Regulatory Scheme Imposed on Stimulus Fund Contracts
tracts, any contracts exceeding $5 million, and lasting
in duration longer than 120 days must contain the following clause:
The Contractor shall timely disclose, in writing, to the agency Office of the Inspector General (OIG), with a copy to the Contracting Officer, whenever, in connection with the award,
performance, or closeout of this contract or any
subcontract thereunder, the Contractor has credible evidence that a principal, employee, agent,
or subcontractor of the Contractor has committed
(A) A violation of Federal Criminal law involving fraud, conflict of interest, bribery, or gratuity
violations found in Title 18 of the United States
Code; or (B) A violation of the civil False Claims
Act (31 U.S.C. 3729-3733).11
This clause must also be included in any subcontracts
valued above $5 million that have performance periods longer than 120 days. While the contract clause
imposes similar requirements to the suspension and
debarment regulations, there are some slight differences. Specifically, the contract clause provides that
disclosures must be made to the OIG of the agency
responsible for the basic contract whereas the suspension and debarment regulations require disclosure to
“the Government.”12 Additionally, the contract clause
does not contain a requirement to disclose “significant
overpayments,” as the regulations do. FAR does not
identify additional penalties associated with violation
of the contract clause, but there is a possibility that a
contractor could have its cost recovery on an existing
contract limited if failure to disclose the required information constitutes a material breach of contract.
As these rules were only recently implemented,
the exact interpretation of the requirements remains
unclear. However, particular attention should be paid
to the following ambiguous terms, which are present
in both the suspension and debarment provision and
the contract clause: “timely,” “credible evidence,”
and “principal.” Federal contractors are required to
“timely disclose” the required information. According to the regulation’s supplementary information,
the timeliness issue was left intentionally vague, as a
suggested 30 day rule was not included.13 Until this
standard is clarified, federal contractors should sub-
mit disclosures as quickly as possible after a violation
is discovered to ensure compliance.
The “credible evidence” standard contained in
the rule is a higher standard than the “reasonable
grounds to believe” standard incorporated in the
previous voluntary disclosure program. This higher
standard appears to indicate that the government expects federal contractors to examine evidence and assess its credibility before making any disclosure. The
rule does not appear to require a full investigation,
but does require all federal contractors to establish set
procedures for the reporting of, and inquiry into, the
particular circumstances of each potentially disclosable incident.
In sum, all contractors accepting federal
funds must establish procedures to learn
of potentially disclosable violations and
to analyze carefully all such violations
to avoid possible penalties for non-disclosure.
Further, the regulations impose disclosure responsibilities on a “principal” of a contractor, which
is broadly defined as one having primary management or supervisory power.14 Moreover, principals
are required to disclose only violations as to which
they have actual knowledge, but are not required to
disclose violations as to which they should have had
knowledge. Given the obligations imposed upon principals, federal contractors should train any employees
who may be considered a “principal” regarding these
additional responsibilities.
To ensure compliance with the mandatory disclosure rule, any company accepting ARRA funds
must identify a high-level individual to serve as a
Compliance Officer to assume responsibility for the
effectiveness and efficiency of the company’s internal control procedures. Federal contractors should
consider implementing a procedure that ensures individuals who do not act ethically are not promoted to
principal levels, which may involve a detailed character interview with others who know the individual
or a background investigation. Additionally, all non-
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small business federal contractors, with contracts other than for the acquisition of commercial items, must
“provide for…an internal reporting mechanism, such
as a hotline, which allows for anonymity or confidentiality, by which employees may report suspected
instances of improper conduct, and instructions that
encourage employees to make such reports.”15 This
hotline should function to alert the company to potentially disclosable problems. It is critical for federal
contractors to establish reliable procedures to ensure
violations associated with their government contracts
are discovered, investigated and disclosed in a timely
manner to the appropriate government authority.
In sum, all contractors accepting federal funds
must establish procedures to learn of potentially disclosable violations and to analyze carefully all such
violations to avoid possible penalties for non-disclosure. When a disclosable violation is discovered, a
principal must complete and submit the disclosure
form located on the General Services Administration
(“GSA”) web site.16 The form asks for information
including, but not limited to, principal contact information, an estimated amount of loss, the date the
violation was discovered, whether an internal investigation was conducted, whether the duration of the
violation was less than three months, the number of
people involved in the violation, whether the violation constitutes a potential national security threat,
and whether there are any witnesses to the violation.
Ensuring compliance with the mandatory disclosure rule may also require a federal contractor to
establish a new record keeping system to document
reports and corrective action when possible violations
are discovered. Maintaining records of issues that
were reported and investigated internally will facilitate any subsequent government investigation. Establishing set procedures will make disclosure easier
for the company and protect it should a government
investigation take place.
ARRA REQUIREMENTS
In addition to the Code requirements and mandatory disclosure obligations, companies accepting
ARRA funds must comply with additional rules contained in FAR applicable only to ARRA funded contracts. These interim regulations were mandated by
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ARRA and address the following:
•
Whistleblower protection;
•
The “Buy American” requirements for construction materials;
•
Requirements for publicizing contract actions;
•
Reporting requirements; and
•
Government Accountability Office (“GAO”) and
Inspector General (“IG”) access to records and
contractor employees.
The Civilian Agency Acquisition Council and the
Defense Acquisition Council accepted written comments on these rules until June 1, 2009 prior to the
release of final rules. However, the interim rules were
effective March 31, 2009 and, therefore, apply to all
ARRA funded contracts issued after that date. Further, the rules direct Contracting Officers to modify
all contracts finalized before March 31, 2009 to include all of the requirements except the requirement
for publicizing contract actions.
Whistleblower Protections
The interim regulations concerning whistleblower protections prohibit contractors receiving ARRA
funds from “discharging, demoting, or discriminating
against employees as a reprisal for disclosing certain
covered information to certain categories of government officials or a person with supervisory authority
over the employee.”17 The whistleblower protections
are broad in scope and apply to virtually all contracts
awarded with ARRA funds, including those below
the simplified acquisition threshold, commercial item
contracts at both the prime and subcontract levels,
and Commercially Available Off-the-Shelf (“COTS”)
Item contracts.18 To avoid penalties for an alleged
reprisal, the regulations require a federal contractor
to demonstrate by clear and convincing evidence that
it would have taken the action constituting the alleged
reprisal in the absence of the disclosure.19 Penalties
for violations include an agency order to reinstate the
employee and/or an agency order to pay the employee
an amount equal to the aggregate amount of all costs
and expenses, including attorney fees and expert witness fees that were reasonably incurred in the process
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Anti-Fraud Regulatory Scheme Imposed on Stimulus Fund Contracts
of bringing the complaint regarding the reprisal.20
The agency must make a determination whether a
contractor subjected a complainant to a reprisal prohibited by the regulation no later than 30 days after
receiving an IG report regarding the events.21
Thus, companies awarded ARRA funded contracts must be particularly sensitive to avoiding even
the appearance of retaliation against their employees
for raising concerns. Management personnel in these
companies must be alerted to these requirements. In
addition, companies should continually remind their
employees of the importance of reporting any issues
and guarantee there will be no retaliation to ensure
that their employees understand both their obligations
and protections.
“Buy American” Requirements
The interim regulations concerning “Buy American” requirements apply to all ARRA funded contracts,
regardless of size or duration, for the construction, alteration, maintenance, or repair of a public building
or public work. The regulations require that all of the
iron, steel, and manufactured goods used in these projects be produced in the U.S.,22 unless one of the following three waiver circumstances is satisfied: (1) the
goods are not produced in the U.S. in sufficient and
reasonably available quantities and of a satisfactory
quality; (2) the inclusion of iron, steel, or manufactured
goods produced in the U.S. will increase the cost of
the contract by more than 25 percent; or (3) applying
the domestic preference would be inconsistent with the
public interest.23 If an agency determines that one of
the waiver circumstances applies and selects a proposal that includes foreign products, it must publish in the
Federal Register a detailed written justification for its
use of the exception.24
In addition to the waiver circumstances, these
regulations may not apply to construction material
produced in certain designated countries, known as
“Recovery Act Designated Countries” (“RADC”),
depending on the contract value.25 RADC include
nations that are signatories to the World Trade Organization Government Procurement Agreement or a
U.S. free trade agreement and are “least developed
countries.”26 Interestingly, however, Congress specifically excluded Caribbean Basin countries from
“designated countries” for ARRA purposes.27 Therefore, for ARRA contracts with an estimated value of
$7,443,000 or more, eligible construction materials from Recovery Act designated countries such as
Chile and Australia are treated the same as domestic
products.28
Federal contractors accepting ARRA funded contracts must consider these requirements in addition to
the existing FAR clauses regarding the Buy American
Act (“BAA”).29 The FAR BAA provision requires
contractors performing federal procurement contracts
use “domestic construction materials” in construction,
alteration, or repair of a public building or public work
in the U.S.30 Unlike the FAR clauses implementing the
BAA, the new ARRA rule definition of “domestic construction materials” does not consider the source of the
components of manufactured goods (i.e. raw materials
or parts used to manufacture such goods).
The recent adoption of the mandatory
disclosure rule along with the new rules
that apply to any contracts funded by
ARRA continue the trend of increased
government oversight of federal contractors to decrease contractor fraud.
Instead the ARRA requirements focus on whether
the “manufacture” of the goods occurs in the U.S. and
permits the use of foreign-sourced components and
subcomponents in construction materials so long as
all of the manufacture occurs in the U.S. This is a less
rigorous standard than the BAA definition of “domestic end product” found at FAR 52.225-1(a) which requires that the cost of a product’s components mined,
produced, or manufactured in the U.S. exceeds 50
percent of the cost of all its components. As ARRA §
1605 does not specifically address “unmanufactured
construction materials,” they remain subject only to
established BAA sourcing requirements (including
a “component test”) found at FAR 25.602(b). Thus,
federal contractors accepting ARRA funds must ensure compliance with both the new Buy American
requirements and the BAA.
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Publicizing Contract Actions
Pursuant to the interim regulations, contracts,
including proposed contract actions, issued under
task or delivery orders that are expected to exceed
$25,000 funded in whole or in part by ARRA, must
follow the publication procedures in FAR 5.201 that
require contract actions to be posted at http://www.
fedbizopps.gov.31 Contracting Officers are directed to
use the instructions on that site to identify proposed
contract actions, and must ensure that the description
required by FAR 5.207(a)(16) includes a narrative of
the products and services that is clear and unambiguous to the general public.32 Under this rule, procurement officials must also provide a rationale to the
public for any contract action that is not fixed-price
and/or does not use a competitive approach.33
These requirements demonstrate the importance
of transparency and accountability related to the procurement of ARRA funds. The publicizing requirement will provide greater transparency as the public
will have access to the values and frequency of contracts funded by ARRA. Further, the emphasis on
fixed-price contracts is consistent with the Obama
Administrations’ 2010 budget proposal (“Proposal”),
which noted that cost-type contracts increased more
than 75 percent under the Bush administration, and
that total federal spending on contracts more than
doubled from approximately $208 billion in 2000 to
more than $423 billion in 2006. Both ARRA and the
Proposal evidence the Obama Administration’s focus
on ferreting out fraud and waste in the government’s
spending, which it intends to accomplish by requiring contract actions be publicized and evaluating and
minimizing the use of cost-type contracts.
Reporting Requirements
Pursuant to the interim regulations, contractors
receiving ARRA funds are required to submit quarterly online reports at http://www.federalreporting.gov
including general contract information as well as a
description of the services provided and the jobs created through the contract.34 For contractors receiving
80 percent or more of its annual gross revenues from
federal contracts and $25 million or more in annual
gross revenues from federal contracts, including subcontracts, the names and total compensation of each
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of the five most highly compensated officers must be
disclosed if the public does not already have access to
this information via Securities and Exchange Commission reports.35 The first reports are due by July 10,
2009 and must be submitted thereafter no later than
the 10th day after the end of each calendar quarter.36
These requirements also require prime contractors to
report this information for at least some of their first
tier subcontractors.37
As with the publicizing requirements, the reporting requirements provide additional means for the
public and government officials to review how ARRA
funds are spent. Specifically, the requirement to disclose progress on each project and the compensation
of the five most highly compensated officers creates
greater transparency in the procurement process and
will make it more difficult for federal contractors to
engage in fraudulent activity. Federal contractors,
therefore, must carefully monitor the reportable information and ensure it is timely and accurately posted to the reporting web site.
GAO and IG Access to Records and Contractor Employees
The GAO and IG Access to Records aspect of
the interim regulations, which applies to commercial item contracts, COTS contracts, and contracts
below the simplified acquisition threshold, expands
the authority of the government to audit both contract
and subcontract records and interview employees regarding the records for contracts funded by ARRA.38
Specifically, during the course of any such audit, the
GAO and Agency IG have access to all relevant contractor and subcontractor records and all contractor
personnel.39 These regulations also provide the GAO
authority to interview subcontractor employees regarding contract records.40
In addition to the government access granted to
contract records and contractor employees for ARRA
funded contracts, FAR was also amended on March
31, 2009 by the Duncan Hunter Defense Authorization Act to grant GAO access to records and contractor employees when the contract is funded by any
federal funds.41 While this access is more general in
application as it applies to any federal contracts, it is
not as broad in scope as the ARRA regulation as ac-
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Anti-Fraud Regulatory Scheme Imposed on Stimulus Fund Contracts
cess was not granted with respect to commercial item
contracts.42 Companies accepting any type of federal
funds must, therefore, be prepared for the possibility
of audits by the government.
This additional access to contractor and subcontractor employees provides the government with another anti-fraud tool. The opportunity to interview
employees increases the government’s insight into
contracts and could reveal information that would
otherwise be undiscovered.
CONCLUSION
The ARRA funds provide businesses with great
opportunities for contracting with the federal government. Accepting any government funds, however, requires contractors to comply with numerous
regulations in order to avoid costly legal infractions.
The recent adoption of the mandatory disclosure rule
along with the new rules that apply to any contracts
funded by ARRA continue the trend of increased government oversight of federal contractors to decrease
contractor fraud. It is now more important than ever
for non-government contractors to evaluate compliance requirements before accepting federal funds,
especially ARRA dollars, and to implement the necessary policies and procedures to minimize the possibility of violations.
NOTES
41 U.S.C. §§ 405a, 421(c) (2006).
FAR 52.203-13(b).
3
FAR 2.101, 52.203-13(c).
4
FAR 52.203-13(b)(1-2).
5
FAR 52.203-14(d).
6
FAR 52.203-13(c)(1)(i-ii).
7
False Claims Act, 31 U.S.C. §§ 3729-3733.
8
FAR 9.406-2(b)(1)(vi)(A-C).
9
Debarment excludes a contractor from government
contracting and government-approved subcontracting
whereas suspension disqualifies a contractor temporarily
from government contracting and government-approved
subcontracting. FAR 2.101.
10
FAR 9.406-2(b)(1)(vi).
11
FAR 52.203-13(b)(3)(i)(A-B).
12
FAR 9.406-2(b)(1)(vi), 52.203-13(b)(3)(i)(A-B).
13
Contractor Business Ethics Compliance Program and
1
2
Disclosure Requirements, 73 Fed. Reg. 67,064, 67,074
(Nov. 12, 2008) (codified at 48 C.F.R. §§ 2, 3, 9, 42, 52).
14
FAR 52.203-13(a).
15
FAR 52.203-13(c), 52.203-13(c)(2)(ii), 52.203-13(c)
(2)(ii)(D).
16
See http://oig.gsa.gov/integrityreport.htm.
17
American Recovery and Reinvestment Act of
2009-Whistleblower Protections, 74 Fed. Reg. 14,633
(interim rule effective Mar. 31, 2009) (to be codified at
48 CFR §§ 3, 52).
18
Id. at 14,633-34.
19
Id. at 14,635.
20
Id.
21
Id.
22
American Recovery and Reinvestment Act of 2009Buy American Requirements for Construction Material,
74 Fed. Reg. 14,623, 14,624-35 (interim rule effective
Mar. 31, 2009) (to be codified at 48 CFR §§ 1, 5, 25, 52).
23
Id. at 14,626-27.
24
Id. at 14,629.
25
Id. at 14,626-27.
26
Id.
27
Id. at 14,627.
28
Id.; FAR 25.400.
29
Buy American Act, 41 U.S.C. §§ 10a-10d.
30
FAR Subpart 25.2.
31
American Recovery and Reinvestment Act of
2009-Publicizing Contract Actions, 74 Fed. Reg.
14,636, 14,638 (interim rule effective Mar. 31, 2009) (to
be codified at 48 CFR §§ 4, 5, 8, 13, 16).
32
Id.
33
Id.
34
ARRA § 1512; American Recovery and Reinvestment
Act of 2009-Reporting Requirements, 74 Fed. Reg.
14,639, 14,645-46 (interim rule effective Mar. 31, 2009)
(to be codified at 48 CFR §§ 4, 52).
35
Id.
36
Id. at 14,640, 14,645.
37
Id.
38
ARRA § 1512; American Recovery and Reinvestment
Act of 2009-GAO/IG Access, 74 Fed. Reg. 14,646
(interim rule effective Mar. 31, 2009) (to be codified at
48 CFR §§ 12, 13, 14, 15, 52).
39
Id.
40
Id.
41
GAO Access to Contractor Employees, 74 Fed. Reg.
14,649 (interim rule effective Mar. 31, 2009) (to be
codified at 48 CFR §§ 12, 52).
42
Id.
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