A PubKGroup Product
With PubKCompliance, federal contractors can stay abreast of the changing regulatory environment and avoid running afoul of legal and ethical mandates. We deliver to your inbox the latest information on ethics, compliance, and enforcement impacting government contracting — from best practices and insights, to government audit and investigation reports and Congressional and GAO oversight, to False Claims Act cases and suspensions and debarments.
A curated email to stay up to date on the changing compliance and enforcement environment
PubKCompliance Event Board
Upcoming training and other events
Quickly find past developments at no additional cost
The Afghan Minister of Finance has approved a new procedure that will allow the Afghanistan Revenue Department, Tax Exemptions and Rulings Directorate to review Tax Exemption Confirmation applications without requiring a complete or redacted copy of the contract for both prime and subcontractors performing under the Department of Defense Bilateral Security Agreement or NATO Status of Forces Agreement.
Previously, the process required a request letter from the contracting officer and a complete or redacted copy of the contract for which a TEC was being requested. The contractor or subcontractor is responsible for completing the ARD NATO/US Contractor Supplementary Form, which replaces the request letter and contract, and the contracting office must verify and submit the document.
In the First Application of the Whistleblower “Safe Harbor” Rule, SEC Awards More Than $2.2 Million to Whistleblower Who First Reported Information to Another Federal Agency
The SEC awarded more than $2.2 million to a former company insider who voluntarily provided critical information to another federal agency before reporting it to the SEC, and whose report led to a significant SEC enforcement action. This is the first of its kind paid under the “safe harbor” provision of Exchange Act Rule 21F-4(b)(7).
The safe harbor provision of the Rule provides a 120-day grace period for reporting to the SEC, offering assurance to whistleblowers who report information to other federal agencies before submitting the same information to the SEC.
Ordinarily, to be treated as a whistleblower an individual must voluntarily report original information to the SEC. Under this provision, however, a whistleblower who first reports to another federal agency, but also reports it to the SEC within 120 days of that, is not disqualified from SEC whistleblower award eligibility.
The rule change is intended to avoid penalizing a whistleblower for reporting to the “wrong” agency, or for reporting to more than one.
In a case in which it chose not to intervene, DOJ has stepped in to defend the relator’s attempt to use statistical sampling to prove FCA liability.
The relators allege that a nation-wide healthcare provider violated the FCA by making medically unnecessary admissions and false diagnoses to increase reimbursements at a facility in Indiana. They proposed using statistical sampling to establish FCA liability based on evaluation of a subset of medical records from facilities throughout the country. The magistrate judge rejected the relators’ claim on the grounds that “fraud will have to be proved on a claim-by-claim basis.”
However, the DOJ has submitted a Statement of Interest arguing that the judge’s dismissal should be set aside, “because it is contrary to long-established precedent recognizing statistical sampling as an admissible and valid method of proof in complex cases involving large numbers of claims, including cases brought under the FCA.”
A biweekly podcast covering news and opinion related to government False Claims Act cases, Foreign Corrupt Practices Act enforcement, and related legal issues.
This week’s headlines:
- DOJ Announces New Policy on Multiple Agency Prosecution
- DOJ Backs Down from Challenge to CIDs Issued After It Declined to Intervene in FCA Case
- Supreme Court Punts on False Claims Act Specificity Requirement
- Taking It to the Bank: FCA Case Dismissed Because Federal Reserve Banks Are Not the U.S. Government
- Trade Agreements Act Compliance: Some Welcome News for Some Federal Contractors, But Will It Last?
- Clear Channel Suggests Subsidiary Violated FCPA
- Fat Leonard Corruption Scandal Reaches Australian Navy
- Colombia Investigates a Dozen Companies for Overseas Bribery
- Barclays Exec Fined $870,000 for Trying to ID Whistleblower
- Procurement Anti-Corruption Training Course
On remand from the U.S. Supreme Court and Second Circuit to reconsider its earlier dismissal of a long-running civil False Claims Act (FCA) lawsuit based upon implied and express certification theories undermined by the 2016 Escobar decision, the U.S. District Court for the Eastern District of New York concluded in United States ex rel. Bishop v. Wells Fargo & Co. that the lawsuit should be dismissed because no claims had been submitted to, or reimbursed by, the government. Relators claimed the defendants violated the FCA by engaging in “extensive accounting and control fraud” that allegedly distorted the financial condition of defendants in such a way as to make them eligible to borrow short-term funds from the Federal Reserve Banks’ (FRBs) Discount Window at the lower interest rate and to borrow longer-term funds from the FRBs’ Term Auction Facility, which they would not have been entitled to borrow without the alleged fraudulent distortions. The court concluded – as a matter of first impression – that FRBs do not act as the government or its agents under the FCA and that the government does not “provide funds to or reimburse FRBs for the conduct relevant here.”
Specifically, the court identified and considered a number of factors for determining whether a federally-established entity qualifies as the government for purposes of the FCA, and concluded FRBs were not because: (a) the statutory history and the language of the Federal Reserve Act placed FRBs outside of the government; (b) “each FRB is a private corporation, owned by private stockholders made up of national banks,” and “FRBs do not receive government appropriations to operate;” (c) FRB leadership is independent of the government and FRB employees are not government employees; and (d) FRBs function and operate independently from the Board of Governors of the Federal Reserve System and the government.