THE BELTWAY AND BEYOND

IT buying investigations sometimes go too far

Stephen M. Ryan

In government procurement circles, being placed under investigation is a disaster. Government officials or contractors subject to investigations almost always suffer damage to their reputations, even if the investigation does not lead to the filing of charges.

Therefore, the federal law enforcement community'including the FBI, inspector general investigators and assistant U.S. attorneys'need to carefully choose which cases represent sound investments of their time. They must weigh which possible violations are so trivial as to merit neither the expenditure of resources nor the risk of damage to people's reputations.

In the novel The Caine Mutiny, Herman Wouk's masterpiece set in World War II, Capt. Queeg demonstrates what seems to be a lack of mental balance by conducting an exhaustive search of his minesweeper's crew for the person or persons he believes stole some canned strawberries from the mess. Eventually, Queeg's near-breakdown causes his officers to mutiny and take control of the ship during a typhoon. But the strawberry incident can be a metaphor for an investigation that is out of all proportion to the offense.

Over the years, federal prosecutors and congressional investigative staffs have pursued government contract abusers, which led to cancellations of tainted contracts and even criminal convictions.

The most important of those cases concerned ghost employees, illicit payoffs and conspiracies to defraud. But some cases deserved not to be pursued, and sooner or later the agents working on such cases figured out it was time to close down an investigation and move on.

During my time as a federal investigator, I believed, and still believe now, that prosecuting crimes committed in the course of information technology procurements is a serious matter.

Unfortunately, with 10 years under my belt as a defense counsel, I have encountered too many IT procurement investigators whose cases are as trivial as Capt. Queeg's strawberry disappearance.

If the subject of the investigation is unworthy, a bad situation is compounded because, too often, the tactics and resources used are unjustifiable.

In one case, a person interviewed by law enforcement officers resigned his position after being interviewed. He was so upset by the events that he killed himself.

This tragic result was extreme, all the worse because the events in question were truly trivial.

What are the characteristics of such an unworthy investigation? Perhaps the first is the length of time the case has been under way.

The baseball season, including spring training, is 230 days. The gestation period for the African elephant is an astounding 660 days'and beats that of the Asian elephant by 20 days. Any IT case which takes longer than that probably has no merit. Hot cases, with few exceptions, don't usually take so long.

A second characteristic is the lack of personal gain by the government official. Many investigations are based on the assumption that a government official awarded a contract or task order to benefit a friend, but often there is not an iota of proof that the official benefited materially.

Law enforcement supervisors should look pretty carefully at any case which has gone on a long time when the government official does not appear to have benefited. Too often, investigators are influenced by lurid images of the proverbial county road official receiving a case of Christmas Scotch in return for a salt contract.

Loose lips

A third characteristic of an unworthy investigation is a shift in the focus of inquiry from the original event'for example, from the granting of the contract to an allegation of obstruction of justice. Many cases are initiated over procurement practices, but when the cops cannot prove their case, they move on to the target's conduct.

It is the target's human reaction, for example, to talk with others also under investigation.

That can become the focal point of the investigation. Most of these obstruction investigations are unworthy of the resources devoted to them.

In short, the big guns of federal investigation should be aimed at big targets.

Stephen M. Ryan is a partner in the Washington law firm of Manatt, Phelps and Phillips. He has long experience in federal information technology issues. E-mail him at SRyan@Manatt.com.

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