Government Procurement Compliance & Training

In today’s environment, once-routine contract disputes increasingly become the subjects of government civil and criminal investigations. Routine, periodic audits by the Defense Contract Audit Agency or other government auditors often can spawn civil or criminal investigations. Outreach by export control agencies also is leading to greater export enforcement activity and exposure.

Foley’s Government Procurement attorneys, often in conjunction with members of our Government Enforcement, Compliance & White Collar Defense Practice, help with the various investigations and audits you routinely encounter.

When attempting to secure and maintain contracts with federal, state, and local government agencies, your compliance with their guidelines is non-negotiable. Non-compliance does not just mean you will be passed over when the contracts are awarded; it may result in expensive litigation and significant damages awards. Under Federal Executive Order 11246, contractors with the federal government are required to maintain detailed and complex statistical analyses of their affirmative action and equal opportunity efforts. In addition to federal regulations, state and local governments increasingly are requiring affirmative action plans of their vendors.

We draw on the experience of our attorneys and paraprofessionals who are well-versed in the nuances of state and federal affirmative action regulations to proactively address your affirmative action and equal employment issues when you are looking to secure government contracts. Our services include:

• Determining the legal obligations to which you are subject
• Preparing the annual filing of EEO-1 and VETS-100A reports
• Preparing an individual or multiple facility Office of Federal Contract Compliance Programs (OFCCP) compliant Affirmative Action Plan
• Preparing reports required by state or local governments
• Advising and representing you through OFCCP desk audits and onsite audits
• Advising you on compliance with applicable regulations, including new federal regulations regarding Internet applicants and recordkeeping requirements

Even today, FCPA requirements come as a surprise to many businesses involved in international procurements. International anti-corruption conventions similar to the FCPA have, in some ways, added to the complexities. When you are conducting business outside the United States, you must consider the FCPA when hiring a foreign agent, entering into a joint venture, developing compliance programs, and a host of other activities. We review your specific business practices and provide counsel as to the potential FCPA implications. Additionally, we can assist you with employment contracts when hiring foreign employees to ensure FCPA compliance.

The federal government has established a comprehensive system of licensing requirements and controls to regulate the worldwide transfer of certain U.S. goods, technology, and services. These controls reach not only commodity exports, but also technology transfers and technical assistance involving non-U.S. parties anywhere in the world, including within the geographical United States.

Our attorneys provide compliance counsel and develop compliance programs to help minimize your risk of potential export control violations. We work to obtain licenses and other approvals to enable you to proceed with the exportation of products, equipment, software, and technology. In addition, we perform audits to help you assess your current level of compliance, conduct internal investigations in the event of a potential violation, and defend you against unlawful conduct allegations by the federal government.

Domestic content requirements regularly appear in government contracts, particularly DoD contracts and subcontracts. These are typically imposed by the Buy America Act (BAA), the Berry Amendment, or similar laws and regulations. However, exemptions exist under the Trade Agreements Act and other international and bilateral agreements that waive the applicability of the BAA and the Berry Amendment for certain foreign supplies and construction materials acquired from designated countries.

We can assist you with developing strategies for ensuring compliance with domestic content and related foreign acquisition requirements, providing proper country of origin certifications, and calculating the domestic content for particular items.

Many government contractors perform classified work, which requires appropriate security clearances for their personnel and/or facilities. With the increased emphasis on homeland security and the continued focus on developing and producing state-of-the-art weapons systems, the government values contractors that possess such clearances.

We will help you understand the security clearance process and work with you to develop approaches for obtaining classified work. We also provide advice regarding the impact of industrial security issues on proposed business combinations and corporate restructurings, and recommend the most effective methods for proceeding under such arrangements.

When violations occur, suspension or debarment from government contracting are powerful tools the government can use to preserve procurement integrity. Because debarment by one contracting authority extends government-wide and reaches procurement and non-procurement activities alike, the effects of a suspension or debarment on your business can be devastating.

We work with you to minimize risk and to negotiate favorable terms should allegations arise, and provide advice should you face allegations of misconduct in the multiple arenas in which a single offense can be addressed (criminal charges, civil lawsuits, and administrative action such as suspension). In addition, we have counseled major financial clients on the adverse effects of suspension or debarment, and successfully defended major international contractors faced with potential debarment from future global acquisitions.

Government contract issues and disputes that formerly were resolved in the U.S. Court of Federal Claims and its predecessor tribunal — or through the administrative process at the Board of Contract Appeals — now are more likely to become criminal investigations and prosecutions for procurement fraud or other crimes.

When facing a criminal matter (or potential criminal matter), we can help you address issues and questions that arise, including: conducting internal investigations and employee interviews; responding to subpoenas from government investigators or grand juries; addressing document retention, non-destruction, and production challenges; assessing client exposure from individual employee involvement; negotiating the best possible settlement; and defending against criminal prosecution.

In addition to improving performance, as a government contractor, you have a duty to properly train your employees on compliance matters. We help you meet this requirement by designing programs created specifically for your business that address compliance responsibilities at various employee levels of responsibility. Depending on your needs, we can:

• Conduct in-house compliance training that sharpens your compliance program and demonstrates your commitment to compliance
• Train personnel to protect intellectual property through proper recordkeeping and marking that minimize the potential for unintended disclosures
• Provide procurement training to help in-house personnel negotiate contracts and subcontracts, prepare for audits, and recognize change activity when it occurs so proper notice and record retention can occur, thereby maximizing recovery
• Review your existing ethics and compliance code to insure it is current and includes the latest statutory and regulatory requirements
• Clients frequently videotape our presentations, providing them with a product they can train absent or new employees, and also use as a “refresher” to enhance their compliance efforts