Internal Corporate Investigations Can Prevent Criminal Liability for Federal Government Contractors
If you are a federal government contractor and currently doing business with the federal government, you more than likely have heard or read about companies or their executives being investigated or indicted for procurement fraud against the government, false claims or in many cases small businesses charged with violating the limitations on subcontracting regulations.
No federal contractor wants to have to investigate misconduct. However, conducting an internal investigation when there is evidence of misconduct or noncompliance can go a long way when being faced with suspension and debarment or federal criminal liability.
Immediate Action is Needed to Save the Company
One of the common things that can save a company’s future is when a suspension and debarment official sees that your company immediately responded to evidence of noncompliance or information presented that can lead to criminal liability. It can certainly be a mitigating circumstance if other federal law enforcement agencies are considering fines or criminal liability.
From the moment an allegation of potential wrongdoing is reported, prompt action is vital to understanding the conduct at issue, preventing future misconduct, and promoting a culture of transparency and compliance within the company. This chapter outlines insights into conducting corporate internal investigations, which seek to minimize risk and disruption to the business while observing the need for thoroughness and consistency with guidance from the U.S. Department of Justice
There is no doubt that federal law enforcement agencies such as the SBA IG and the Department of Justice (DOJ) have increased the oversight and scrutiny over small businesses and larger DOD contractors. Yet, many of them are not planning ahead or conducting corporate internal investigations or preventing procurement fraud and enduring compliance with the Federal Acquisition Regulations (FAR).
Removal of Personnel as a Remedy?
A common question comes up when conducting an internal corporate investigation concerning a federal government contracting matter. If there seems to be evidence that points to a specific person or persons, can you remove that person? The first question to ask is whether your state is an ‘at will state.” If it is, then you might be in a safer position when you decide to remove personnel. Indeed, you are allowed to make business decisions to protect the company’s interests. Speak to your HR department or business attorney when making such a decision.
- Should you choose to remove personnel after conducting an internal investigation, make detailed notes for your records.
- For purposes of government contract investigations, keep records of what exactly you have done to mitigate risk and correct problems
What is an Investigation in the Workplace?
This information is focused on small businesses and larger federal government contractors seeking to ensure compliance. A viable company investigation in the workplace will either focus on the existing problem to make sure that business practices measure up to a specific regulation that covers the potential problem. In the alternative, the investigation can also focus on preventing a serious problem or lack of compliance or pinpointing potential wrongdoing. As you conduct internal interviews, document any documents that the interviewee refers to. This includes emails from other coworkers, articles in the newspaper etc.
When questioning employees, be mindful of statements that can be considered hearsay and how such evidence may or may not be
- An investigation should not always occur after there is a problem
- Most successful federal contractors conduct inspections and revamp internal policies and controls on a set schedule.
How to Conduct an Internal Investigation
The first step in conducting a corporate internal investigation for a government contractor is to identify what goal you are trying to accomplish. There are many contract clauses that you must be aware of such as mandatory disclosure, contractor code of ethics, limitations on subcontracting, and so on.
A thorough internal company investigation would focus on these things.
- Limitations on subcontracting
- Mandatory disclosure
- Developing a contractor ethics program
- Complying with subcontractor oversight
- Making sure that contract materials meet the specifications
- Compliance with SBA affiliation guidelines
- Making sure that joint ventures and teaming agreements are in compliance
When looking at how to conduct an internal investigation, you must also tailor the process to suit your specific company operations. If you become subject to a government contract investigation, you may be asked questions about how your specific company works through the day-to-day issues. Failure to produce or show that you have a viable plan in place can hurt the company in the long run.
Is the Attorney-Client Privilege Applicable to Company Internal Investigations? This question often comes up. The best approach is to first understand who is the client. Normally, the company will be the client. This allows for more openness in communication.
The attorney-client privilege during company internal investigations helps the company to prevent further violations, adopt better business practices that minimize risk and certainly allow corporate management full access to information in order to make informed decisions.
All contractors should focus on minimizing business disruption, improving public relations and improving the government’s perception of them as a contractor. The most important aspect of developing company investigations is to avoid being charged with criminal liability or potential civil liability or fines.
When you conduct an inspection you should conduct it as though there was an actual government investigation taking place.
- Taking proactive measures will almost always minimize liability in the long run
- You always want to make sure that if there is an ongoing federal investigation against your company your internal investigation does not tamper with witnesses or evidence.
Government Contracting Internal Investigations on the Rise
Internal corporate investigations allow you to conduct a self-assessment of managers, supervisors, and your employees to comply with federal government contract laws in addition to your internal policies and controls. Government contractors are now increasing the frequency of their internal investigations. The penalty for procurement fraud is very high and sometimes can be aggravated by companies not investigating their operations for indicators of fraud.
When you conduct internal corporate investigations, you should be looking to gather facts so if the Department of Justice (DOJ), Security Exchange Commission (SEC) or another agency wants to investigate you to conduct witness interviews, the investigator can make a fair determination about what happened and whether a violation occurred. See information on responding to government investigations.
OIG is Active in Company Investigations: In its January 6, 2014 Semiannual Report to Congress, the office of Inspector General (OIG) stated that it “completed many more important audits and reviews covering many Department operations and programs.”For corporations involved in federal government contracts, this is especially true in suspension and debarment cases.
For medium-sized or large companies, you should be especially cognizant of allegations of employment discrimination, Service Disabled Veteran requirements (SDVOSB) or other employment law concerns. These are also situations where you might want to conduct corporate internal investigations.
Trends are showing that corporations are now left to conduct their own internal business corporate investigations. State and Federal Government agencies are increasing corporate investigations nationwide. For example, according to a Washington Post article, the U.S. government is stepping up investigations of corporations suspected of paying bribes overseas. This is especially true for the Department of Justice and the Security Exchange Commission.
Conduct Routine Internal Corporate Investigations: Both small businesses and large corporations simply have to implement internal controls and policies, and conduct internal company investigations on a routine basis. They should not wait until the DOJ or SEC comes knocking on their doors.
As the U.S. government steps up investigations of companies suspected of paying bribes overseas, law enforcement officials are leaving much of the detective work to the very corporations under suspicion.
DOJ Conducting Government Contractor Investigations
The following show clear examples of how the federal government is cracking down on corporations and launching nationwide corporate investigations.
Correctional Institution Employee Sentenced on Bribery Related Offense, December 20, 2013
Seminole, Oklahoma Resident Sentenced for Committing Federal Program Theft, December 19, 2013
Former FBI Special Agent Pleads Guilty to Illegal Cash Deposits, December 17, 2013
Two Florida Residents Sentenced on Bribery Charges, November 25, 2013
Get Professional Help With Federal Contractor Company Internal Investigations
If you are a medium-sized company, small business or a large federal government contractor, you want to seriously consider developing periodic corporate internal investigations. Contact our federal government contract lawyers for legal advice at 1-866-601-5518. Free Initial Consultation.