Federal contract investigations

Last month, I described some excessive criminal investigations and tactics relating to
federal contracts. Now I would like to give some practical suggestions for avoiding such
problems and for surviving an investigation. These suggestions do not substitute for legal
advice, of course.


A compliance program can push potential whistleblowers into disclosing their concerns
in-house before they relay them to the government. A good compliance program also
explicitly prohibits racial and sexual discrimination and creates mechanisms for managers
to find out about such concerns before they read them in the newspaper.


But do not, under any circumstances, destroy a single cyber or paper record once an
audit or investigation is on the horizon. That is likely to be considered obstruction of
justice.


If you're a government employee, you should know that your diary book, which you
undoubtedly consider a personal possession, is likely to be seen as a government record.
Factors to be considered in this regard include who pays for the diary, whether you take
it home each night and whether you note off-duty appointments such as kids' ball games.


Most government employees are shocked to find that all records on their computers are
also agency-owned. Searches of a federal office require far less due process than searches
of a person's home.


A good rule of thumb is to review any e-mail on a sensitive business subject and ask
yourself how an FBI agent who thinks the worst of you might read that message--or how it
would look in the pages of the Washington Post, or in bid protest documents.


Clients generally feel there is something bad about not talking. Get over it. If the
government needs your testimony, a skilled lawyer may be able to obtain a grant of
immunity, which makes it far more difficult for the government to indict the witness.


Government employees also are covered by the Fifth Amendment. If you're a government
employee and uncertain whether the government might proceed criminally against you, ask
for a written Kalkines waiver before any interview. The Kalkines decision gives the
interviewee the right to rely upon the Fifth Amendment, unless the government is willing
to waive its right to use the information in a criminal proceeding.


Kalkines essentially forces the government to make a choice. If the investigators
proceed with a criminal case, government employees can remain silent. If the government
waives criminal investigation, then government employees have to answer, eventually, or
lose their jobs for failing to do so.


Of course, the answers also may cost you your job, but losing your job is better than
doing time. However, this is a pretty tricky area. Government employees can be disciplined
if they inappropriately refuse to answer. If you are this far involved, simply say you
need to consider the matter with your lawyer, even if you don't have one yet, to buy some
time.


Discretion of contracting officials has been dramatically increased by the two recent
procurement bills. Criminal investigations already focus on those places where such
discretion is exercised. Be aware that not everyone is embracing fundamental change. Be
careful out there. Stephen M. Ryan is a partner in the Washington law firm of Brand,
Lowell & Ryan. He has long experience in federal information technology issues.



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