Entering into contracts with the federal government requires contractors to comply with a significant number of requirements, including statutory, regulatory, and contractual requirements. And, under the False Claims Act, the penalties for failing to comply with those requirements can be steep. In fiscal year 2018, there was a total of $2.88 billion in settlements and judgments in False Claims Act cases. That $2.88 billion includes settlements and judgments for procurement-related fraud cases brought under the False Claims Act.
Most contractors obviously would prefer to avoid any type of procurement fraud. So how does a contractor make sure it is compliant with all applicable requirements? First, one needs to be aware of the requirements. These requirements depend on a number of factors, starting with the contracts you have been awarded and what industry you are in. For example, the requirements applicable to a healthcare contract would vary from those applicable to a manufacturing contract. The requirements also could depend on the agencies with which you work. And, if your business is a small business, there are a separate set of requirements applicable to your business (to participate in a small business program) and your small business contracts (to comply with applicable performance of work requirements).
Once you have determined what requirements you must comply with, you need to determine how to ensure you are complying with the requirements. Setting up regular internal checks or reviews will help ensure you are meeting the applicable requirements. And, documenting compliance will be helpful to prove your compliance if it is ever questioned. Drafting templates and forms to measure compliance will make the internal review process easier.
What should you do if you think your company has not been compliant with a procurement requirement? Do not ignore it. There are mandatory disclosure requirements to notify the government of violations of law and overpayments. If you suspect a compliance error has been made, an investigation should be conducted to determine whether there was noncompliance and the extent of noncompliance—and whether any mandatory disclosure is necessary. Given the sensitive nature of these compliance issues, it is often best to bring in an outside firm to assist with an internal investigation. If you need assistance with conducting an internal investigation into procurement compliance issues (or other regulatory issues), give us a call.
About the Author: Julia Di Vito practices in the areas of government contracts, litigation, and labor and employment. She may be reached at jdivito@pilieromazza.com.