National 8(a) June 2012 Summer Conference GAO Investigations and - - PowerPoint PPT Presentation

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National 8(a) June 2012 Summer Conference GAO Investigations and - - PowerPoint PPT Presentation

May 06, 2023 291 likes •737 views

National 8(a) June 2012 Summer Conference GAO Investigations and 8(a) Enterprises What to Do When GAO Comes Calling Don Carney Rick Oehler Christine Williams Perkins Coie LLP Perkins Coie Offices: 18 across the United States and

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National 8(a) June 2012 Summer Conference GAO Investigations and 8(a) Enterprises What to Do When GAO Comes Calling Don Carney – Rick Oehler – Christine Williams Perkins Coie LLP

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Perkins Coie

  • Offices: 18 across the United States and

China, including Anchorage, Seattle and D.C.

  • Perkins has represented ANCs for well over

30 years

  • Perkins has a strong government contracts

practice

  • Law360 Government Contracts Group of 2010
  • web based resources for government contractors
  • http://www.perkinscoie.com/government_contracts/
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GAO Investigations Agenda

  • Background of GAO Investigations
  • GAO Investigations of ANCs
  • Getting Your Costs Paid By Insurance
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GAO 101

  • Government Accountability Office
  • Formerly General Accounting Office
  • Independent Auditor of federal agencies

and federal contractors

  • Led by Comptroller General
  • Part of the Legislative branch – created in

1921

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GAO 101

  • GAO generally supports Congress in meeting its

responsibilities

  • GAO generally helps improve the performance
  • f the federal government and ensures its

accountability

  • GAO does so by conducting evaluations of

federal programs and investigating whether there is improper use of federal funds

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GAO Authority

  • Investigate all matters related to use of public

monies

  • Make an investigation ordered by either house
  • f Congress or a Congressional committee with

jurisdiction over revenue, appropriations or expenditures

  • Assist as needed a Congressional committee

with jurisdiction over revenue, appropriations or expenditures

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GAO Authority

  • Can evaluate performance of federal programs

and investigate all matters relating to the use of federal funds

  • GAO has broad rights of access to federal

agency information

  • Can subpoena records from federal agencies

and contractors

  • Recovery Act authorized GAO to interview

Federal contractor regarding Recovery Act funded transactions

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GAO's Audit and Evaluation Work

  • Most GAO reviews are made in response to

Congressional requests

  • Required to perform certain Congressional

mandates

  • Also performs work requested by Committee

Chairmen and ranking minority members

  • To extent possible, GAO responds to individual

Congressional member requests

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GAO's Audit and Evaluation Work

  • Can consolidate similar Congressional

requests

  • Will consider whether there is a related

audit or investigation

  • GAO declines requests based on limited

resources and can refer the request to a more appropriate agency

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Types of Questions GAO Answers

  • Is a federal program achieving desired

results or are changes needed?

  • Are there better ways of accomplishing

federal program objectives at lower costs?

  • Is a Government program being carried
  • ut in compliance with applicable law and

regulations?

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Types of Questions GAO Answers

  • Are government program data furnished to

Congress accurate?

  • Do opportunities exist to eliminate waste

and inefficient use of public funds?

  • Are funds being spent legally and is the

accounting for funds accurate?

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GAO Work Products

  • Oral briefings
  • Congressional testimony
  • Comments on legislation
  • Written reports
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GAO Written Reports

  • To Congress, committees or members
  • Vary in format and content depending on

complexity of the assignment

  • GAO can work with the requester to revise

the assignment and methodology as necessary

  • Usually will provide drafts to agencies and
  • ther directly impacted parties for comment
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GAO Written Reports

  • Usually 30 days to comment, but GAO can

shorten this time

  • Will not permit an opportunity to comment if it

would compromise the results of the work

  • The substance of these comments will be

published as part of final report

  • Will hold an exit conference with agency
  • fficials
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GAO Written Reports

  • The substance and provide these drafts to

Congress

  • Then issues final reports, but can hold up public

release of certain reports for 30 days

  • Upon written request, GAO will grant Members

access to its audit documentation

  • Once a report is released, GAO will answer

questions from the media

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Office of Special Investigations (OSI)

  • Investigates congressional requests

concerning specific allegations of federal fraud, waste and abuse or misconduct

  • Also conducts specific projects that require

special investigative tactics

  • Includes senior criminal investigators
  • Broad authority
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Office of Special Investigations (OSI)

  • Responsible for investigating alleged violations
  • f federal criminal law and serious wrongdoing

concerning federal funds, programs and activities

  • Typically investigates allegations of fraud,

corruption, abuse, ethics violations and conflicts

  • f interest
  • Conducts work in accordance with standards

established by President's Council on Integrity and Efficiency (PCIE)

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What Really Goes On

  • You are contacted by investigators.
  • Usually a team. Always be cautious.
  • Requested by a member of Congress.
  • Request has been accepted.
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The Request

Try to get the requestor(s) letter.

  • Did the GAO meet with the requestor(s)?
  • Did the request get revised?
  • If so, what is the true scope?
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Internal Investigation

  • What is needed in this situation?
  • Do we need to conduct an internal

investigation?

  • Outside counsel/in-house experience
  • Did the first contact give you enough

information?

  • Can we mitigate, if wrongdoing?
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The Team

  • Who is your investigative team?
  • What are their respective roles?
  • Who is your main contact?
  • Can you find out their experience in this

area (subtle Google, review bios, etc.)?

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The Investigation

  • What are the activities you contemplate?
  • Is there another investigation you are

conducting?

  • What is your time frame?
  • When is the draft and can I see it?
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Scope

  • Questions they will likely ask you:
  • Direct about the scope of the investigation
  • Who else they need to talk to about the

investigation

  • They usually have done a pretty thorough check

and have a preliminary list

  • Do not feel like you have to match that list
  • I have not seen your list, so I do not know who I

could add. Can I see it?

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Scope

  • Document Requests
  • Do you want to supply? Could there be a

subpoena coming? 31 USC Title 7.

  • Do you have a concurrent investigation going
  • n with another agency?
  • Do you need to be careful of what you

disclose especially if you have a potential interference with another investigation?

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Document Requests

  • Treat and track documents like in litigation
  • Bates No (tracking numbers)
  • Review documents given
  • Leave a trail of when the documents were

supplied

  • Do not expect all documents

to get reviewed

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Follow Up Activities to the Meeting

  • Are they talking to agencies:
  • FOIA request to those agencies
  • Review contracts other applicable documents
  • Talk to appropriate personnel (remember

attorney client privilege/internal investigation procedures)

  • Ascertain what other information may be

relevant

  • Do you have a timeline and cast of characters
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Draft Report

  • Always try to get a copy of the draft report
  • Analyze the report and methodologies
  • Determine if the report is accurate and

reflective of the circumstances

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Draft Report

  • Supply comment, if appropriate
  • Any comment supplied should be supported

and facts verified a number of times

  • Credible evidence
  • Agency information
  • Statements
  • Timeline
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Draft Report

  • If possible, do you want to meet with the

agency and discuss comments?

  • Have your agenda/goals in mind
  • Second draft report?
  • Comment again?
  • Comments generally

appended to the report

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Getting Your Costs of Responding to an Investigation Paid By Insurance

  • Responding to an investigation can be

expensive

  • Insurance may cover the costs of your

response

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Agenda

  • Investigation Costs
  • Potentially Applicable Insurance Policies

and Coverages

  • Caselaw
  • Maximizing Your Claim for Coverage of an

Investigation

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Investigation Costs

  • Investigation Types
  • GAO
  • OIG, DOJ
  • Potential Investigation Costs
  • Subpoena and document production
  • Maintain database
  • Interviews / Testimony
  • Legal
  • Investigation – interviews, FOIA requests, document requests
  • Strategy and counseling
  • Contact with Government and response to Government report(s)
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Potentially Applicable Insurance Policies and Coverages

  • Directors & Officers Policies
  • Errors and Omissions Policies
  • Comprehensive General Liability Policies
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Director & Officers Policies

  • Who is the Insured?
  • Coverages:
  • "Direct" or "Liability"
  • "Reimbursement" or "Indemnity"
  • "Entity"
  • Claims Made Policies
  • Defense Costs Reimbursed
  • Defense Costs Usually Erode Limits
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Policy Issues

  • Definition of "Claim" against the company
  • Formal versus informal processes
  • Co-defendant language
  • i.e. company co-defendant before coverage triggered
  • Definition of "Loss"
  • Conduct exclusions and adjudication language
  • Recission
  • "Black Hats" versus "White Hats"
  • Civil fines and penalties
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Common Exclusions and Policy Provisions Carriers Will Use to Deny Coverage

  • Conduct exclusions
  • Known Claims Exclusions
  • "Relating back"
  • Severability
  • Misrepresentation in application process
  • Consent and Cooperation
  • Defense Cost Disputes
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Investigation Coverage Caselaw

  • Minuteman International, Inc. v. Great American

Insurance Co., No. 03-C-6067, 2004 WL 603482 (N.D. Ill. Mar. 18, 2004)

  • Dan Nelson Automotive Group, Inc. v. Universal

Underwriters Group, No. 05-4044, 2008 WL 170084 (D.S.D. Jan. 15, 2008)

  • MBIA Inc. v. Federal Insurance Company, 652

F.3d 152 (2d Cir. 2011)

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Maximizing Your Claim for Insurance Coverage of An Investigation

  • Assess the Claim and Determine Which

Policies May Provide Coverage

  • Provide Prompt and Overinclusive Notice
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Maximizing Your Claim for Insurance Coverage of An Investigation

  • Present the Claim In A Manner that

Maximizes Coverage

  • Evaluate the Insurance Company's

Response to Coverage

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Maximizing Your Claim for Insurance Coverage of An Investigation

  • The Policyholder's Duty to Cooperate
  • Selection of Defense Counsel
  • Protecting Your Insurance Assets When

You Settle the Underlying Claim

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Summary

  • Check your policies
  • Follow steps to:
  • Maximize coverage and
  • Avoid exclusions
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Perkins Coie and John Klein

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Questions or comments, please write, call or email:

Christine Williams Perkins Coie LLP 1029 West Third Ave., Suite 300 Anchorage, AK 99501 (907) 263-6931 CWilliams@perkinscoie.com Rick Oehler Perkins Coie LLP 1201 Third Ave., 40th Fl. Seattle, WA 98101-3099 (206) 359-8419 (202) 654-6367 ROehler@perkinscoie.com Don Carney Perkins Coie LLP 700 13th Street, NW, Suite 600 Washington, DC 20005-3960 (202) 654-6336 DCarney@perkinscoie.com

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