33 research outputs found
Foreign Corrupt Practices Act Fundamentals
Foreign Corrupt Practices Act (FCPA) enforcement activity is currently at its highest level since enactment of the statute in 1977. There were more enforcement actions brought in 2007 than in the years from 2004 to 2006 combined. The message is clear - the U.S. Government is committed to FCPA compliance and there is no evidence enforcement activity will slow any time soon. This article provides a general overview of the FCPA, including a primer on the legislationâs core components: the antibribery prohibitions and the books and records provisions. The article also provides practical guidance with respect to the more challenging provisions of the Act, including the two affirmative defenses and the legislationâs exception for âgreaseâ or âfacilitatingâ payments. The article also examines recent trends in FCPA enforcement, such as the increased prosecution of foreign companies and voluntary disclosures by corporate entities. This broad and practical overview of the FCPA is an excellent resource for anyone interested in learning more about this robust anticorruption regime
The Breakdown of the United States Government Purchase Card Program and Proposals for Reform
The Government Purchase Card Program introduced purchase cards to streamline the acquisition of items and services under 75 per transaction. Unfortunately, the Government has failed to maintain effective controls over cardholders and this has led to systemic abuse, preventing the Government from realizing the full potential of the purchase card program. There are three main problems with the current scheme. First, cardholders are ignoring internal controls, resulting in purchases that supervisors cannot verify as consistent with procurement regulations. Second, the proliferation of cardholders has also led to a lack of control. In some agencies, one out of every four employees carries a purchase card, making it difficult to accurately supervise spending. Finally, cardholders do not receive enough training before being authorized to spend taxpayer money. This paper recommends a thorough overhaul of the purchase card program. The GAO has recommended several initiatives, including; pre-approval of purchase card transactions; establishment of documentation requirements; and a reduction in the number of cardholders. In addition to adopting these recommendations, the Government must improve its relationships with financial institutions and take advantage of the data-mining software those institutions have available. The Government should also learn from the private sector by implementing a policy of stringent oversight, to include daily and monthly spending limits; blocks on specific categories of expenditure; and â24/7 monitoringâ of spending. These improvements would allow the Government to truly benefit from this efficient method of procurement
A House of Cards Falls: Why \u27Too Big to Debar\u27 Is All Slogan and Little Substance
âA House of Cards Falls: Why âToo Big to Debarâ is All Slogan and Little Substanceâ is a critical response to the article, FCPA Sanctions: Too Big to Debar by Drury D. Stevenson and Nicholas J. Wagoner, which aptly demonstrates a common, yet fundamentally flawed understanding of the FAR 9.4 suspension and debarment regime. Too Big to Debar asserts that when large government contractors violate the Foreign Corrupt Practices Act (FCPA), they should be âpunishedâ by being debarred from the procurement system. Indeed, despite FAR 9.4âs clear directive to use debarment only for the purpose of protecting the government, not to punish past misconduct, Too Big to Debar completely disregards this fundamental tenet of the suspension and debarment regime (and the regulationâs plain language) by repeatedly referring to debarment as punishment. Too Big to Debar also misrepresents the true consequences of debarment â the corporate death penalty. In an era of outsourced government, these large, sophisticated firms not only permit the government to provide critical functions, but employ thousands of hard-working and innocent employees. Imposing debarment for the sake of retribution or deterrence is not only contrary to law, but would be harmful to the countryâs diverse interests. If FCPA enforcement has touched every industry, why do the authors single out large government contractors? Because they can â large government contractors are not sympathetic. Even though nearly all companies, regardless of their size or line of business are exposed to the potential misconduct of rogue employees, the authors expect government contractors to defy the statistically impossible. Too Big to Debar appears to assert that it is morally wrong to ârewardâ government contractors that have misbehaved. By injecting theories of punishment into an administrative regime, the article elevates the simple, almost visceral desire for large-scale retribution over the more nuanced best interests of the government. âA House of Cards Fallsâ exposes âToo Big to Debarâ for what it is: a populist sound bite used to vilify and bash contractors without regard for nuance or reality
The Congressional War on Contractors
The U.S. Suspension & Debarment regime is designed to ensure that the federal government does business only with âresponsibleâ partners. One of the most fundamentally (and frequently) misunderstood aspects of the FAR 9.4 suspension & debarment system is that these tools are only to be used for the purpose of protecting the Government, not to punish contractors for their past misconduct. Unfortunately, recent congressional initiatives demonstrate many legislatorsâ desire to transform debarment into a tool of punishment by banishing contractors from the procurement system âwith little consideration of whether such action is needed or fair.
Instead of focusing on the governmentâs nuanced best interests, certain members of Congress continue to propose unnecessary, and in many instances counterproductive, legislation designed to fundamentally overhaul the debarment regime, often undermining contractor due process rights in the process. This article provides a sharp critique of recent congressional initiatives designed to transform the suspension and debarment regime into a punitive and non-discretionary sanction
A House of Cards Falls: Why \u27Too Big to Debar\u27 Is All Slogan and Little Substance
âA House of Cards Falls: Why âToo Big to Debarâ is All Slogan and Little Substanceâ is a critical response to the article, FCPA Sanctions: Too Big to Debar by Drury D. Stevenson and Nicholas J. Wagoner, which aptly demonstrates a common, yet fundamentally flawed understanding of the FAR 9.4 suspension and debarment regime. Too Big to Debar asserts that when large government contractors violate the Foreign Corrupt Practices Act (FCPA), they should be âpunishedâ by being debarred from the procurement system. Indeed, despite FAR 9.4âs clear directive to use debarment only for the purpose of protecting the government, not to punish past misconduct, Too Big to Debar completely disregards this fundamental tenet of the suspension and debarment regime (and the regulationâs plain language) by repeatedly referring to debarment as punishment. Too Big to Debar also misrepresents the true consequences of debarment â the corporate death penalty. In an era of outsourced government, these large, sophisticated firms not only permit the government to provide critical functions, but employ thousands of hard-working and innocent employees. Imposing debarment for the sake of retribution or deterrence is not only contrary to law, but would be harmful to the countryâs diverse interests. If FCPA enforcement has touched every industry, why do the authors single out large government contractors? Because they can â large government contractors are not sympathetic. Even though nearly all companies, regardless of their size or line of business are exposed to the potential misconduct of rogue employees, the authors expect government contractors to defy the statistically impossible. Too Big to Debar appears to assert that it is morally wrong to ârewardâ government contractors that have misbehaved. By injecting theories of punishment into an administrative regime, the article elevates the simple, almost visceral desire for large-scale retribution over the more nuanced best interests of the government. âA House of Cards Fallsâ exposes âToo Big to Debarâ for what it is: a populist sound bite used to vilify and bash contractors without regard for nuance or reality
Gifts, Hospitality & the Government Contractor
The government procurement process demands the highest commitment to ethical and unbiased conduct. To ensure that the individuals involved in the procurement process adhere to these standards, government entities in nearly all jurisdictions around the world have enacted codes of conduct, ethical restrictions, and anti-corruption laws designed to protect the integrity of government and ensure that government officials act impartially and do not give preferential treatment to any private organization or individual. To further these goals, most jurisdictions have enacted restrictions on the gifts and hospitality that government officials may accept from individuals and organizations that sell goods and services to the government. While gifts and hospitality play an important role in facilitating and strengthening business relationships in the private sector, in the public sector, common business courtesies may appear as an attempt to influence a government official and the procurement process. This concern is not unfounded. Most public corruption cases involving government contractors include references to the offering of lavish gifts, meals, travel, or entertainment to government officials. Moreover, nearly all governmental bodies have enacted ethical restrictions that limit the gifts and hospitality that may be accepted by government officials â even in the absence of intent to influence a government official. Indeed, these restrictions are often even more stringent for government procurement officials. Ethics and anti-corruption laws vary dramatically depending on the jurisdiction. Consequently, determining the applicable rules for a particular government entity can be incredibly challenging. To assist contractors with this process, Part I of this Briefing Paper provides an overview of the laws and policies that restrict the offering or giving of gifts and hospitality to government officials. Part II addresses the severe consequences that may result when contractors offer or give gifts and hospitality to influence an official action. Part III offers practical suggestions regarding the policies and procedures that a government contractor may implement to reduce the risk of violating these laws
Using AI to Reduce Performance Risk in U.S. Procurement
In recent years, several U.S. government agencies have pioneered the use of artificial intelligence (AI) and other emerging technologies to improve the efficiency and accuracy of their responsibility determinations (reviews of, among other things, contractor representations and certifications, past performance history, civil and criminal settlements, exclusions (such as suspensions or debarments), and contract terminations). As federal agencies continue to think strategically about how to improve processes and reduce risk in their procurements, technology-driven solutions will play a critical role in this undertaking
The Congressional War on Contractors
The U.S. Suspension & Debarment regime is designed to ensure that the federal government does business only with âresponsibleâ partners. One of the most fundamentally (and frequently) misunderstood aspects of the FAR 9.4 suspension & debarment system is that these tools are only to be used for the purpose of protecting the Government, not to punish contractors for their past misconduct. Unfortunately, recent congressional initiatives demonstrate many legislatorsâ desire to transform debarment into a tool of punishment by banishing contractors from the procurement system âwith little consideration of whether such action is needed or fair.
Instead of focusing on the governmentâs nuanced best interests, certain members of Congress continue to propose unnecessary, and in many instances counterproductive, legislation designed to fundamentally overhaul the debarment regime, often undermining contractor due process rights in the process. This article provides a sharp critique of recent congressional initiatives designed to transform the suspension and debarment regime into a punitive and non-discretionary sanction
The Foreign Corrupt Practices Act & Government Contractors: Compliance Trends & Collateral Consequences
As Government contractors expand their business overseas, they expose themselves to the risk of violating the Foreign Corrupt Practices Act (FCPA) and the high sanctions that accompany those violations. Given the nature of a Government contractorâs business, they are naturally at greater risk of violating the FCPA than those companies that do not interact with Government officials on a regular basis. This article begins by providing an overview of the FCPA and a review of recent FCPA enforcement trends, and then considers the collateral consequences of a violation of the FCPA by Government contractors. In addition to fines, penalties, and possible incarceration, Government contractors have additional concerns, including the risk of suspension or debarment from the U.S. procurement regime. Exclusion from contracting with foreign governments and international organizations, including the World Bank and EU member states, is also an increasing risk. This article is an essential primer for any Government contractor that may be exposed to FCPA liability and seeks to avoid or limit the potential collateral consequences
Foreign Corrupt Practices Act Fundamentals
Foreign Corrupt Practices Act (FCPA) enforcement activity is currently at its highest level since enactment of the statute in 1977. There were more enforcement actions brought in 2007 than in the years from 2004 to 2006 combined. The message is clear - the U.S. Government is committed to FCPA compliance and there is no evidence enforcement activity will slow any time soon. This article provides a general overview of the FCPA, including a primer on the legislationâs core components: the antibribery prohibitions and the books and records provisions. The article also provides practical guidance with respect to the more challenging provisions of the Act, including the two affirmative defenses and the legislationâs exception for âgreaseâ or âfacilitatingâ payments. The article also examines recent trends in FCPA enforcement, such as the increased prosecution of foreign companies and voluntary disclosures by corporate entities. This broad and practical overview of the FCPA is an excellent resource for anyone interested in learning more about this robust anticorruption regime