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National 8(a) Association Conference June 2015

Different Viewpoints When a Government Contract Goes Wrong: Department of Justice, Private Practice Attorney, and a Suspension and Debarment Official

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Your Presenters: Kevin Feldis

Kevin Feldis

Kevin Feldis is the First Assistant United States Attorney and Chief of the Criminal Division of the United States Attorney's Office for the District of Alaska. He has been a federal prosecutor since 1999, and has handled hundreds of federal cases involving fraud, federal programs, corruption, violent crime, firearms and environmental crime.

Mr. Feldis graduated with honors from Yale University in 1990 and received his law degree from the University of Chicago Law School in 1994. Before joining the U.S. Attorney’s Office, he was a law clerk for a Federal District Court Judge in Illinois, and was in private practice at national law firms in both Washington DC and in Alaska. Beginning this fall, he will be an adjunct professor at the Seattle University School of Law, Anchorage campus.

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John Klein

John Klein, Associate General Counsel for procurement law United States SBAPrincipal Legal Advisor to senior Agency officials and their staffs with respect to the 8(a) Business Development program; the Agency’s Government Contracting programs, including the small business set-aside, subcontracting and Certificate of Competency programs; the HUBZone program; the Small Business Innovation Research program; the Size Standards program; the Service Disabled Veteran-Owned Small Business program; SBA’s internal contracting procedures; and Suspension and Debarment Official for SBA

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Christine Williams

Adjunct Professor of Law, Seattle University, Government Contracting, Satellite Program Adjunct Professor, Alaska Native Executive Leadership Program, Master’s Program, Government Contracting and the 8(a) ProgramPartner, Davis Wright Tremaine LLP

Christine concentrates on Government Contracting from counseling on qualifications and administration to disputes and crisis. She is often involved in sensitive internal investigations and frequently interacts with Government agencies when a company faces a tough situation. Christine is known for her deep experience with the SBA programs. Despite having a national practice, as a born and raised Alaskan, she understands the unique challenges that may be faced by Alaskan companies that they often encounter when it comes to Government Contracting on a national basis.

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Private Practioner Perspective: Who is Involved

Main Justice

AUSA

Investigative Agencies

Contracting Officer

Agency Resources / OIG

Contractor

Suspension and Debarment Official

Main Justice

AUSA

Investigative Agencies

SBA

Contracting Officer

Agency Resources / OIG

Contractor

Suspension and Debarment Official

Main Justice

AUSA

Investigative Agencies

DCAA

Contracting Officer

Agency Resources / OIG

Contractor

Suspension and

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Private Practioner Perspective: General Rules

Develop facts in a thorough and reliable way Promote credibility and avoid the appearance of conflicts Report findings clearly Use the findings to protect the business Do no harm

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Private Practioner Perspective: Initial Steps

Do not allow any misconduct to continue

Have a plan

Have a team: internal and external: points of contact

Who are the players: Government, agencies, media, GAO, Inspector Generals, DOJ

What has been done: Civil investigatory demand, internal complaint, subpoena, search warrant….

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Private Practioner Perspective: Data Collection

Quickly and quietly

No obstruction (do no harm)

Keep confidentiality

Word may spread be prepared

Assemble data and prepare for interviews

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Private Practioner Perspective: Interviews in General

Where is the harm coming from and who is likely the main cause, if any

Has it spread

Capacity to be surprised

Capacity to understand context and out of context statements, emails, etc.

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Private Practioner Perspective: Interviews

Be prepared

Two interviewer rule

Give Upjohn at all interviews

Document the interview, keep opinions out

Whether or not to record the interview

Be prepared for employee questions they always come

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Private Practioner Perspective:

Reports and how to do them

Corrective measures, if needed, in place/recommended

Decisions regarding the Government (if not already involved)

– Mandatory Disclosure

– Voluntary Disclosure

– Compliance with the law certifications

– 8(a) Good Character

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Suspension and Debarment Perspective: Types

Administrative

– Procurement (Federal Acquisition Regulation)

– Non-Procurement (Non-Procurement Common Rule)

– Government-wide effect (E.O. 12689)

Statutory

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Suspension and Debarment Perspective: FAR 9.4 Policy

Protect the U.S. Government

– Integrity of contracting process

– Quality goods and services

In the public interest

Not punishment

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Suspension and Debarment Perspective: Causes for Suspension FAR 9.407-2 Adequate Evidence of:

Fraud or crime in connection with a public contract

Antitrust violation relating to submission of offers

Embezzlement, bribery, false statements, tax offenses, etc.

Drug-Free Workplace violation

False “Made in America” inscription

Unfair trade practice

Delinquent taxes

Failure to disclose credible evidence of criminal or False Claims Act violation or overpayments

Any other offense affecting present responsibility

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Suspension and Debarment Perspective: Causes for Debarment FAR 9.406-2

Conviction or Civil Judgment

– Fraud or crime in connection with a public contract

– Antitrust violation relating to submission of offers

– Embezzlement, bribery, false statements, tax offenses, etc.

– False “Made in America” inscription

– Any other offense affecting present responsibility

Preponderance of Evidence

– Serious violation of Gov’t contract terms

– Drug Free workplace violation

– False “Made in America” inscription

– Unfair trade practice

– Delinquent taxes

– Failure to disclose credible evidence of criminal or FCA violation or overpayment

Any other offense affecting present responsibility

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Understand the SDO's responsibility

– Not to punish, but to protect the federal agency

– Assess the present responsibility of the named party

– Once the SDO has suspended a party or proposed a party for debarment, the practical burden to demonstrate responsibility shifts to the named party

Suspension and Debarment Official (SDO)

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Recognize the SDO's discretion

– Responsibility is a subjective assessment

– SDO final action is subject to review, but historically difficult to reverse

– SDO has authority to debar for extended periods – one Army debarment was for 14 years

Suspension and Debarment Official (SDO) (cont)

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Show Cause Letters / Requests for Information

Administrative Agreements

Narrow scope of the debarment

Expand scope of debarment

– Affiliates

– Imputation

– Joint Venture

Agency Options

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Suspension and debarment activity is monitored by Government fraud counsel

Early suspension and debarment can “enhance” parallel criminal and civil proceedings for Government or vice versa

Government does not have a policy of global settlements

Government Coordination of Remedies

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Debarment – FAR 9.406

Suspension – Uses the same factors as debarment

A contractor has to consider which mitigation factors it has satisfied or can satisfy prior to presentation of its position and then implement the mitigation factors, as appropriate in the individual case

FAR Mitigation Factors

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The existence/nonexistence of any single mitigating factor is not necessarily dispositive

Contractor must demonstrate to SDO's satisfaction that it is presently responsible and that suspension or debarment is unnecessary

FAR Mitigation Factors (cont)

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Special Considerations for the 8(a) Contractor

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Special Considerations for the 8(a) Contractor

SBA 8(a) program has certain admission requirements

SBA regulations state that “good character” is required for admission into the program. Good character means: (1) no past / present criminal conduct; (2) no debarment or suspension; and (3) no violations of SBA rules

If statements on admission application are not true there are consequences

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SBA 8(a) Suspension:13 CFR 124.305

Following a notice of intent to terminate participation in the 8(a) program, the SBA may suspend a participant when the SBA determines that suspension is needed to protect the interests of the Federal Government– Clear lack of program eligibility

– Conduct indicating a lack of business integrity

• Biggie: false statements to the Federal Government

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SBA 8(a) Suspension:13 CFR 124.305 - Notice

A notice of suspension will provide the following information the basis of the suspension and that

Suspension is immediate and will continue pending: – completion of further investigation– a final program termination determination, – or some other specified period of time;

8(a) contracts, will not be made during the pendency of the suspension unless – it is determined by the head of the relevant procuring

agency or an authorized representative to be in the best interest of the Government to do so,

– and SBA adopts that determination;

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SBA 8(a) Suspension:13 CFR 124.305 - Notice

Company must complete previously awarded section 8(a) contracts

Suspension is effective throughout SBA A request for a hearing on the suspension will be

considered by an Administrative Law Judge at OHA, and granted or denied as a matter of discretion

The program term will resume only if the suspension is lifted or the firm is not terminated

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SBA 8(a) Suspension:13 CFR 124.305 - Appeal

A company can appeal a suspension decision

– the suspension remains in effect during appeal On appeal, the SBA has the burden of showing that

"adequate evidence" exists for the suspension "Adequate evidence"

– Information in the record before SBA

– Sufficient to support the belief that suspension is necessary

SBA need not demonstrate that an act or omission actually occurred

22527367

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SBA 8(a) Termination: 13 CFR 124.303

The SBA can terminate a company’s participation in the 8(a) program if the contractor or its principles is debarred or suspended under the FAR

The SBA may also terminate a company’s participation in the 8(a) program for other reasons, including conduct by the company, or a principal of the company, indicating a lack of business integrity

Such conduct may be demonstrated by information related to a criminal indictment or guilty plea, a criminal conviction, or a judgment or settlement in a civil case

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SBA 8(a) Termination: 13 CFR 124.303 - Examples

False information on 8(a) application

Failure by the company to maintain its eligibility for program participation

Failure by the company for any reason, to maintain ownership, full-time day-to-day management, and control by disadvantaged individuals-including death; [ownership/control]

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SBA 8(a) Termination: 13 CFR 124.303 - Examples

Debarment, suspension, voluntary exclusion, or ineligibility of the company or its principals

Conduct by the company, or any of its principals, indicating a lack of business integrity

Willful failure by the Participant to comply with applicable labor standards and obligations

Material breach of any terms and conditions of the 8(a) Program Participation Agreement

Willful violation by a company, or any of its principals, of any SBA regulation pertaining to material issues

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SBA Mitigating Factors

Likely a lot like the FAR provisions

Intent or mistake

What type

How far reaching

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Questions???