In the conclusion of this two-part blog series, I have explored issues around suspension and debarment, with Rodney A. Grandon, Managing Director at Affiliated Monitors, Inc., (AMI). During a 27-year career with the US military and government, Grandon served as the Air Force’s Suspending and Debarring Official as well as a wide variety of other functions which gives him subject matter expertise into issues surrounding this topic. Yesterday, I introduce the key components to suspension and debarment. Today, I will consider the convergence of suspension and debarment and compliance.
I-The FCPA and suspension and debarment
Debarment may be based on actions so serious or compelling that it affects the present responsibility of the contractor or subcontractor. Grandon noted, “there is some fairly broad language as to what the basis for a suspension and debarment can be.” This means that in the context of anti-corruption laws, it can be the basis of a suspension or debarment, further meaning that under the FCPA, the conduct to incur a violation does not require actual bribery or corruption. It can be “bad record keeping associated with that and the context of engagements with foreign officials, the activity that would generally fall outside the realm of a public contract or subcontract. From the suspension and debarment perspective, it is critical to recognize here that the standard definition for contractor issues from the rule does not require that the entity actually has a contract in place.”
In the context of suspension and debarment, Grandon noted, “It’s just simply that they may have a contract or may compete at some point for a contract that they may become a contractor, so essentially any business activity that provides goods or services that the federal government may be interested in acquiring potentially could fall within the definition of contract. When one considers the FCPA, practically any business would fall within that definition of contractor. These sanctions are not limited to contractors that have existing contracts and they are not limited to misconduct that occurs in the context of a federal contract. In my experience, I have dealt with several matters involving violations of the FCPA activity that was clearly outside the scope of a federal contract or subcontract, but where the conduct was committed by a very large federal contractors.”
Another angle on the convergence of FCPA and suspension and debarment was raised by two authors, then South Texas College of Law student Nicholas J. Wagoner and Professor Drury D. Stevenson in a piece entitled “FCPA Sanctions: Too Big to Debar?”, where they posited the question: “Are certain private contractors too big to debar?” Their conclusion is “It appears so” and the authors stated, “The federal government is too dependent on a particular set of large, private-sector corporations for equipment and services. In addition to the virtual immunity from debarment enjoyed by these firms when they violate the FCPA, the fines imposed for engaging in foreign corrupt practices comprise a tiny fraction of the potential revenue generated by lucrative contracts with the U.S. and foreign states. When discounted by the low probability of detection, these sanctions are far too low to deter unlawful activity.” One solution raised by the authors for the issues regarding fines and penalties for companies which violate the FCPA, is debarment and suspension. They urge that debarment would be a significant deterrent for US government contractors and would “increase compliance with the FCPA.” The authors also suggest that the threat of debarment as a penalty would increase self-disclosure without any increased enforcement efforts if companies received the “meaningful reward” of a lesser penalty through self-disclosure.
II-Present responsibility
Grandon stated that present responsibility has become sort of a “buzzword. It’s the underlying basis for action involving excluding a party from the federal marketplace through suspension or department.” Unfortunately, the phrase itself is not defined anywhere in the regulatory structure. This means its determination comes “down to the discretion of the federal officials who have been empowered to exercise the suspension and debarment authority.” The basic question asked will be “is there a reason to be concerned about the integrity of that contractor? And that gets us into a fairly deep dive of the ethics and compliance program.”
Yet even with this lack of a statutory or regulator definition, Grandon noted “there are some common factors and guidelines out there that can help the compliance community understand some of the elements of suspension and debarment, as they relate to this issue.” He went on to explain this meant “when an action is initiated, it is generally based on facts that trigger one of the causes that are set forth in the regulations, notwithstanding the fact that the evidence establishes the cause and which in most cases there’s generally no dispute that the cause has been proven by the appropriate burden of evidence.”
From Grandon’s perspective, it all “starts at the top with effective standards of conduct and internal controls at the time that misconduct occurred. Second, did the contractor disclose in this conduct to the government? Third has a contractor investigated the matters and made those results available to the government?, has the contractor cooperated with the government in terms of trying to work through the various challenges and the various remedies associated within this conduct?, and, finally, has the contractor taken appropriate corrective action taken?” Such corrective actions include “disciplinary action, and assessment of internal controls, policies and procedures that were designed to either prevent or identify a misconduct and what can be done to strengthen that process is the contract or willingly embracing the problem and pursuing an appropriate resolution.”
Part III-Remedies and compliance
Grandon believes there has “been a tremendous growth and understanding that ethics and compliance is critical for any company, whether it’s in the defense sector, the commercial sector, as companies have become more willing to do what is necessary to build these compliance programs, to try to instill within their workforce, appropriate standards of conduct, articulate clear expectations for employee behaviors and then understanding that there are consequences that flow from this. They worked hard to create cultures that allow communications to go up from the bottom of the workforce and down from the top of the workforce.”
In his experience, it all starts with the appropriate “tone at the top”. This is because “Integrity is critical for the company. Not simply to avoid problems, but it’s important to be honest with your customers and your stakeholders. All of this is absolutely critical.” While it is Grandon’s sense that initially “the defense community led this; the commercial community has as swiftly moved to catch up with this.”
When it comes to remedies Grandon noted, “federal agencies, particularly within the Department of Defense, look to coordinate fraud remedies.” He said where there is an “indication of misconduct within the government contract or with involving a government contractor fairly broadly defined, there’s a focus on identifying and coordinating remedies, whether they be criminal, civil, administrative, to include suspension department or contractual in almost every one of these cases is at some point going to be an analysis.”
The key analysis is “going to come down to the integrity of that contractor. What does it have in place to achieve compliance within its business operations?” There is going to be a focus on the question of whether the contractor can be “trusted to get it right?” In the final analysis, the question will be “is there evidence to support the cause for the action?”
Grandon then walked through the next steps which would turn on the present responsibility determination. He said, “the inquiry goes to whether or not the contractor is presently responsible. This will make the focus on ethics and compliance and those companies that embrace their principles are going to have an advantage and be much better position.” Grandon emphasized that it is critical that companies take these challenges “so that they have ethics and compliance programs, that they test and make sure that those programs and those efforts are achieving the type of results that are expected in terms of employee behavior, in terms of good communication throughout the organization.”
In the realm of suspension and debarment, government agencies are increasingly requiring independent corporate monitors as part of their settlement agreements with organizations facing suspension, debarment or criminal prosecution. Grandon believes that an imposed monitorship can actually be an opportunity for a company. He said, “Usually these agreements are in place for roughly three years, but they give the contractor an opportunity to more holistically look at its operations and assess what it needs to do to truly build a strong ethics and compliance program. In most cases, the government will require the contractor which has entered into the administrative agreements, to hire an outside independent monitor to assess whether or not it is achieving those objectives. This creates this opportunity for companies to demonstrate the ability to be responsible, to continue to participate in the federal marketplace, while that trust relationship involving the contractors, integrity is continuing to be established.” This process also allows contractors to “gain themselves a tremendous advantage in any of these sanctions reviews, civil, criminal or suspension and debarment, by having in place a strong commitment to ethics and compliance, solid training programs they are willing to test programs and stay on top of their risk profile.”
Grandon related that while he was a Suspending and Debarring Officer, he often required monitors as a part of an agreement. He said, “The Monitor is not there to be an advocate. The Monitor there is to be an independent and objective set of eyes and ears for the regulator, for the government. There has to be an arm’s length relationship between that monitor and the contractor. That’s not to say it’s antagonistic and it never should be a gotcha proposition. You know, where the monitor is, is trying to, I know through trickery or otherwise, put the contractor into an awkward situation.”
Grandon concluded by noting, “independence, objectivity of good business sense, the Monitor must understand how businesses operate, what are the challenges associated with a very diverse workforce. A monitor has to be able to take in all of these different considerations and at the end of the day be reasonable.”
Suspension and debarment are usually only considered important for those doing business with the federal government. However, every compliance practitioner should have more than a passing knowledge of the parameters of these two sanctions. Moreover, many of the best practices around compliance programs came out of the defense industry in response to the requirements under present responsibility. Finally, companies doing business internationally and with the US government need to have special awareness as a FCPA violation unconnected to a US government contract can still lead to either suspension or debarment.
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