Defense Contracting Integrity: Opportunities Exist to Improve DOD's Oversight of Contractor Ethics Programs
Released: 2009-09-22T00:00:00

Letter

Background

Defense Contractor Ethics Programs and DOD Oversight before New FAR Rules

Before the FAR changes in December 2007, DFARS provided that contractors must conduct themselves with the highest degree of integrity and honesty. Specifically, defense regulations provided that contractors should have (1) a written code of ethical conduct; (2) ethics training for all employees; (3) periodic reviews of compliance with their code of ethical conduct; (4) internal audits, external audits, or both; (5) disciplinary action for improper conduct; (6) timely reporting to appropriate government officials of any suspected violation of law regarding government contracts; and (7) full cooperation with any government agencies responsible for either investigation or corrective action. While defense regulations provided that contractors should have such elements, they were not mandatory. As a result, under DFARS and until the FAR rules established mandatory ethics program requirements, DOD relied on contractor self-governance—through which a company decided if and how to implement and enforce ethical conduct.

Oversight and management of DOD contracting activities is shared among various organizations. Collectively, these organizations help detect instances of fraud, waste, and abuse; try to prevent them from happening; or are involved in correcting policies and procedures when they occur. For example, the Office of the Under Secretary of Defense for AT&L provides policy, guidance, and oversight to acquisition functions. Other DOD organizations may examine contractors’ ethics programs under a range of authorities for contract administration and audit services. Table 1 shows DOD organizations involved in overseeing and managing contracting activities and their primary responsibilities in examining contractors’ ethics programs.

Concerns over Procurement Fraud Trends Prompt FAR Contractor Ethics Rules

A number of cases involving fraud in wartime contracting in Iraq, Kuwait, and Afghanistan and recent scandals involving high-profile defense contractors have prompted significant changes in procurement fraud investigations, enforcement initiatives, legislation, and regulation. By 2007, in view of the trend, the FAR Council commented that the DFARS provision that contractors should have specific elements of an ethics program was no longer considered strong enough to increase contractor compliance with ethical rules of conduct.

To address this problem, the FAR Council changed the regulations. After conducting an extensive proposed rulemaking and public comment process from February 2007 through November 2008, the FAR Council twice amended the FAR to impose new ethics requirements on government contractors. The initial rule—effective in December 2007— created a new FAR subpart that requires government contractors to have written codes of business ethics and ethics compliance training programs for contractor employees and to post “fraud hotline” posters at contractor work sites to encourage contractor employees to report fraudulent activity in connection with performance and award of government contracts.

However, in December 2008 certain shortcomings in the initial contractor ethics rules were addressed in further amendments to the FAR. For example, public concerns over the first rule’s exemption connected to overseas contracting prompted elimination of this exemption in the second rule, and as of December 2008, overseas and commercial contractors are now required to maintain written codes of business ethics and conduct. In addition, the amended FAR contractor ethics rules now require contractors to disclose violations of criminal law involving fraud, conflict of interest, bribery, or gratuity violations or violations of the civil False Claims Act (31 U.S.C. 3729-3733) in connection with award or performance of government contracts and subcontracts. It should be noted that these requirements are implemented by contract clause and are mandatory. The amended rules also specifically subject contractors to suspension and debarment from government contracting for knowingly failing to disclose such violations and failing to disclose receipt of overpayments on government contracts in a timely manner.

The FAR changes effective in December 2008 also enhance provisions for sound ethics business practices by specifically requiring the establishment of internal control systems for facilitating discovery of improper conduct, ensuring that corrective measures are promptly carried out, and otherwise promoting an organizational culture that encourages ethical conduct and a commitment to compliance with the law.

In publishing the December 2008 rule’s amplified requirements, the FAR Council stated that the U.S. Sentencing Commission’s federal sentencing guidelines are the source of the FAR text, which provides guidance for contractors consistent with the guidelines on effective compliance and ethics programs for organizations. Among other things, the sentencing guidelines state that an ethics and compliance program should be reasonably designed, implemented, and enforced so that it is generally effective in preventing and detecting criminal conduct. Notably, the sentencing guidelines also state that the failure to prevent or detect a particular offense does not necessarily mean that the program is generally ineffective in preventing and detecting criminal conduct.

According to the FAR Council, the final rule reflects standards across four broad components and establishes a framework for institutional ethics management and disclosure, but does not prescribe specific ethical requirements. Contractors are free to establish the appropriate ethical standards for their businesses. For a more detailed description of the final rule’s establishment of standards across four broad components, see appendix II.

Contractors Report Using a Range of Ethics Program Practices Now Required by the FAR

In September 2008 and before the FAR rules were finalized, to identify contractor ethics program practices, we surveyed all 57 contractors to obtain information on the extent to which their programs included practices required or proposed in the FAR or otherwise addressed in congressional requirements for this report. As summarized in table 2, nearly all of the 57 contractors responding to our survey report using many of the ethics practices consistent with standards now required by the FAR. The ethics program practices information we obtained was not designed to test contractor compliance with the rules that came later.

Views of contractors surveyed were mixed with regard to the benefits and challenges they face in implementing the FAR contractor ethics rules. Contractors responding to our survey cited several expected benefits and challenges of the new ethics rules. Other benefits and challenges were attributed by the FAR Council to public comments from contractor industry and other sources when finalizing the new FAR contractor ethics rules in 2008. Some of these benefits and challenges are highlighted in table 3.

With regard to the new FAR rule’s mandatory timely disclosure of certain contract-related violations of criminal law or the False Claims Act, several contractors responding to our survey as well as industry concerns cited in public comments indicated that contractors would face significant difficulty in implementing those requirements. In response to these concerns, the FAR Council revised key aspects of the final rule regarding timely disclosure, including to more closely focus the situations that must be disclosed by limiting violations of criminal law to certain violations involving fraud, conflict of interest, bribery, or gratuity violations that have occurred in connection with the award, performance, or closeout of a contract or subcontract; make “credible evidence” the standard for when timely disclosure should add clarification that if a violation relates to more than one government contract, the contractor may make the disclosure to the agency officials responsible for the largest dollar value contract affected by the violation; and limit the application of suspension or debarment to undisclosed overpayment cases in which the amount is significant.

Contractors’ Ethics Program Practices

Highlighted below is some of the aggregated analysis resulting from the survey about contractors’ ethics practices. A more complete tabulation of survey questions together with tables indicating the levels of response can be found in the e-supplement to this report, found on our Web site at http://redesign-www.gao.gov/special.pubs/gao-09-646sp/index.html.

Nearly All Contractors Report Having a Code of Business Ethics and Conduct

One purpose of a code of conduct can be to communicate a company’s statement of ethical values and integrity as established by top leadership. Although the FAR does not specify what topics a contractor must include in its code of conduct, they can cover a broad range of business ethics and conduct standards, such as conflict of interest, relationships with vendors, and compliance with government contracting requirements for procurement integrity, classified information, and recruiting and employing current or former government personnel, according to sources on government contractor ethics practices. As shown in table 4, nearly all of the contractors reported using such practices.

One purpose of ongoing contractor ethics awareness and compliance programs can be to promote conformance with the code of business ethics and requirements. Such programs should include reasonable steps to communicate periodically to employees about the contractor’s ethics standards and procedures via training programs and communicating information on individuals’ roles and responsibilities under the ethics program. As shown in table 5, nearly all of the contractors reported including steps such as requiring ethics training and periodically communicating ethics-related information to employees working on DOD contracts.

All 41 contractors that reported having overseas contract operations indicated that they had incorporated their ethics awareness and compliance programs overseas. However 26 contractors reported experiencing challenges implementing ethics programs overseas, including differences in legal and regulatory environments relating to, for example, employee privacy, cultural and language barriers, and technical or hostile conditions impeding computer-based training.

Internal Control Systems

Having contractors implement internal control systems increases the likelihood that their ethics and compliance programs are generally effective in preventing, detecting, and addressing contract-related fraud, waste, and abuse. Nearly all of the contractors in our survey reported using internal control practices consistent with the FAR’s standards.

High-level of management oversight. By assigning responsibility at a sufficiently high level and providing adequate staffing to ensure the effectiveness of the ethics program, a contractor can demonstrate true interest and involvement of management. As shown in table 6, most contractors report formally assigning responsibility and staff resources to an office or individual and several have their ethics managers report on a regular basis to top management. Site visits with four contractors showed that all had ongoing and active high-level management oversight of their ethics programs.

Periodic reviews and audits. An internal control system should be reviewed regularly from a compliance perspective through periodic risk assessments and audits. Most of the contractors reported a range of practices for periodic reviews and audits, as shown in table 7. In the case of our four site visits, we confirmed that all four contractors had internal audits or reviews of their ethics program as recently as 2008. Examples of risk areas addressed by these contractors’ internal ethics program audits include procurement integrity, foreign corrupt practices, and compliance with the code of conduct and policy for employee background checks.

Internal mechanism for reporting misconduct. Having and publicizing a system such as a hotline through which employees can anonymously and confidentially report or seek guidance facilitates detecting and addressing unethical and illegal activity related to contracts and helps promote a culture that encourages ethical conduct and a commitment to compliance with the law. As shown in table 8, most of the contractors reported having such mechanisms and policies for employees to anonymously or confidentially report suspected misconduct and contract-related violations.

In addition, of the 57 contractors responding to our survey, 45 reported using one or more mechanisms (for example, posters or training) to let employees know about external mechanisms for reporting contract- related misconduct, such as DOD IG’s hotline, and 55 reported notifying employees of their federal whistleblower protections through one or more mechanisms, such as their ethics codes or training.

Disciplinary systems. A disciplinary system is part of providing appropriate incentives to perform in accordance with the ethics and compliance program and further demonstrates appropriate follow-through in investigating, disciplining, and correcting ethics violations. As shown in table 9, 53 of the 57 contractors report including a disciplinary system in their ethics programs, with consequences ranging from warning to termination practices. To ensure that prompt corrective measures are carried out when violations are substantiated, 35 of the contractors reported such practices as having specific offices or individuals, while 12 reported having committees, responsible for coordinating and tracking that appropriate discipline is administered. Site visits with 4 contractors confirmed that all 4 kept extensive records for management to track and oversee disciplinary actions by category of conduct violation, employee category, and business unit.

Since the FAR rule mandating timely disclosure of contractors’ credible evidence of violations was not yet in effect at the time of our survey, we asked contractors about policies for voluntarily disclosing to DOD conduct in connection with defense contracts that may violate applicable requirements of law or regulation. Of the 57 contractors responding to the survey, 39 indicated that they had self-reporting policies. Of these, 34 said that their policy was to voluntarily disclose or self-report violations to government officials, such as DOD IG, contracting officers, DCMA, and DCAA. Fifteen of these contractors provided copies of their self-reporting policies. Of the 18 that indicated that they did not have self-reporting policies, 10 said it was their practice to self-report or voluntarily disclose, or to encourage the practice of self-reporting, violations to government officials. In addition, some of the contractors that had self-reporting policies reported that the types of contract-related violations subject to their self-disclosure policies and practices included violations of law and instances of significant employee misconduct, instances where there may have been overbilling caused by employee mischarging and other instances of misconduct, violation of the Anti-Kickback Act of 1986, compromise of product integrity, violations of federal procurement law, violations that added costs to the government, cost accounting violations, and suspected fraud.

Notably, in site visits with four contractors following the November 2008 publication of the FAR’s mandatory rule for timely disclosure of certain contract-connected violations, senior ethics program managers provided us information showing that all organizations were changing their voluntary disclosure policies to implement this new FAR requirement.

New FAR Rules May Improve DOD Oversight of Contractor Ethics Programs in Some Areas but Not Others

In response to the new FAR rules, DOD has made changes in two key areas that could improve oversight of contractor ethics programs. Specifically, DCAA revised its contract audit guidance to cover the new FAR ethics requirements. In addition, DOD IG established the new Contractor Disclosure Program to implement the new mandatory disclosure requirement. However, additional opportunities exist to improve DOD’s oversight in two other key areas. For example, in a third area DOD has not assigned responsibility for verifying implementation of contractor ethics programs during contract administration. The impact of the FAR rules on oversight at this point is negligible because the authority for oversight is not explicit nor is organizational responsibility clear. In a fourth area—hotline poster displays—the new FAR rules could have the adverse consequence of reducing DOD’s awareness of potential ethics violations. Under the rules, contractors have been exempted from the requirement to display DOD hotline posters if they have their own internal hotlines. This is important because if contractor employees make reports of contract-related fraud, waste, and abuse to the company hotlines instead of DOD hotlines, DOD will be less aware of potential problems. In addition, if employees use contractor hotlines instead of DOD hotlines, the employees do not receive the same protections from whistleblower laws.

DCAA Developed New Audit Guidance on Internal Controls for Contractor Integrity and Ethical Values

Although DCAA provides a range of services to contracting officers and other DOD officials, DCAA’s primary function is contract audit services. As part of its ongoing oversight of contractor performance during the contract administration phase, DCAA’s field audit offices conduct periodic audits of contractor internal control systems. In carrying out such contract audits, DCAA personnel are to follow the standards, policies, and techniques prescribed in the DCAA Contract Audit Manual (CAM).

Senior headquarters policy and planning managers responsible for DCAA’s auditing standards indicated that the impact of the FAR contractor ethics rules on DCAA contract audits has been to improve audit guidance. To incorporate the December 2008 FAR ethics rules into its audits of contractor controls for integrity and ethical values, in July 2009 the agency distributed to its field audit offices revisions of a section of the CAM and its associated audit program. Earlier in June 2009, when the Chief, Auditing Standards Division updated us on the status of extensive revisions then under way to improve the CAM audit guidance, she indicated that the revised guidance under development would integrate the new FAR standards into DCAA’s auditing program. This was a change by DCAA since February 2009 when headquarters officials told us that they planned to make only minor changes. In their view, this was because many of the new FAR requirements were already in the DFARS section upon which the earlier audit program was based.

When we subsequently discussed preliminary findings to that effect in June 2009, the Chief, Auditing Standards Division told us that the agency had reconsidered its approach and was then proceeding to develop much more extensive audit guidance revisions than what had earlier been anticipated. In July 2009, DCAA provided us with its revised audit guidance, including the section of the CAM on controls for contractor integrity and ethical values and the associated audit program. DCAA’s new guidance now integrates the FAR standards into DCAA’s auditing program for identifying potential internal control deficiencies in contractors’ ethics and compliance programs.

DOD IG Established Contractor Disclosure Program as Required by New FAR Rule

The new FAR rule’s requirement that contractors timely disclose credible evidence of certain violations of federal criminal law or violations of the civil False Claims Act made it necessary in December 2008 for DOD IG to replace its Voluntary Disclosure Program with the new Contractor Disclosure Program. According to the program’s manager, DOD’s new contractor disclosure process provides contractors with Web-based and alternative means to report violations in coordinated evaluation of criminal, civil, and administrative actions with Department of Justice (DOJ) and DOD stakeholders (including offices for the Army, Navy, and Air Force suspension and debarment authorities and buying agencies or weapon systems affected by the disclosure); a framework for the government to verify and, when appropriate, act on certain violations discovered through contractor self-policing; and centralized management combined with decentralized execution and faster turnaround of the investigative and prosecution processes.

To implement the new FAR rules, DOD took immediate steps—none of which existed under the Voluntary Disclosure Program—to direct reporting of all contractor disclosures to the Contractor Disclosure Program. DOD IG also made early instructions available to contractors on submitting information via the Contractor Disclosure Program Web site and, in February 2009, issued a contractor’s guide to submitting a disclosure. The guide states that disclosures are made with no advance agreement regarding possible DOD resolution of the matter and with no promises from DOJ regarding potential civil or criminal actions. In the event of disclosures of potential criminal liability, however, prompt disclosure, full cooperation, complete access to necessary records, restitution, and adequate corrective actions are key indicators to DOD of an attitude of contractor integrity. DOD IG is also developing instructions—to be issued in 2009—to provide internal guidance on various DOD contractor oversight agencies’ roles and responsibilities under the Contractor Disclosure Program. The instructions call on the agencies to extensively coordinate and share management of the investigation/prosecution processes.

Before the new program, the DOD Voluntary Disclosure Program— administered by DOD IG since 1986—had been largely ignored by contractors for the past 10 years, according to comments received by the FAR Council from DOJ and inspectors general. The number of contractor disclosures to the Voluntary Disclosure Program fell steeply over its 22- year history, declining from about 40 to 60 voluntary disclosures accepted per year in its early years to only 9 voluntary disclosures accepted in 2008. According to the program’s manager, in the first 7 months since the mandatory program’s start-up in December 2008, DOD has received 41 disclosures from contractors.

DOD IG headquarters officials told us that the agency will include information on the Contractor Disclosure Program—such as the volume, nature, and disposition of active and closed disclosure cases—as part of its semiannual report to Congress.

New FAR Rules Do Not Call for Verifying Implementation of Contractor Ethics Programs during Contract Administration

The FAR does not specifically require contracting officials to conduct oversight of contractors’ ethics programs during contract administration, for example, verifying that the contractor has implemented the new mandatory contractor business ethics requirement. In contrast, in certain other areas of the acquisition process the FAR provides guidance for contracting personnel regarding contractor oversight that could serve as a model for DOD to use in considering whether to step up oversight of contractor ethics programs during contract administration. This guidance identifies several areas for which express responsibility is assigned to contracting officials for verifying contractor compliance with applicable laws and regulations. These areas include activities related to environmental practices and a drug-free workplace. In addition, guidance is provided to contracting personnel regarding, as applicable, quality assurance and safety, both of which are cited in the FAR as general standards for determining whether a prospective contractor is responsible, just as having a satisfactory record of integrity and business ethics is a responsibility standard. Such oversight during contract formation and administration is done, in part, to avoid any adverse impacts on contract performance or cost after contract award.

As DOD’s lead contract administration agency, DCMA provides a range of services to contracting officers and other DOD officials after contract award. If assigned to do so by a contracting officer as part of DCMA’s contract administration responsibilities after contract award, DCMA monitors contractor performance and management systems to ensure that cost, quality, and schedule are in compliance with the terms and conditions of the contracts. DCMA’s monitoring is primarily performed by an administrative contracting officer (ACO) located in the field at a contract administration office (CAO) who is assigned to administer the contract with assistance from engineers and other specialists at DCMA. To specifically combat procurement fraud with a strong focus on assisting CAOs through coordination of remedies and process improvement, DCMA also has a Contract Integrity Center—operated by its Office of General Counsel—with attorneys geographically dispersed across the United States. According to DCMA, these contracting integrity attorneys work full-time on the prevention, detection, investigation, and prosecution of allegations of procurement fraud and other misconduct.

Despite DCMA having the important role of performing contract administration services for many of DOD’s contracts after award, the impact of the new FAR rules on changing the CAO function to include some degree of oversight to verify implementation of contractor ethics programs has been negligible. For example, most of the nine CAO staff we talked to who provide ongoing contract administration and oversight of seven major DOD contractors told us that they may receive information from the contractors or from DCAA on the status of contractors’ ethics programs. In addition, they monitor contractor ethics program actions to correct internal control deficiencies for integrity and ethical values in response to deficiencies discovered during DCAA audits. However, other than reacting as information comes to them from the contractor and DCAA, the CAO staff indicated that they were not planning to routinely verify contractor ethics program efforts. Some of these staff indicated that they were willing to monitor contractors’ ethics programs but noted that it is currently not required by the FAR. Some staff indicated that if such a task was required, criteria or instructions on what to look for would be needed. However, the new FAR rules are silent with regard to contracting officer review or standards for examining contractor ethics programs during contract administration. As such, without further guidance, CAO staff will continue as before the new FAR rules were implemented with limited oversight of contractors’ ethics programs.

Before the FAR requirements were finalized in 2008—and Congress mandated that we report on the extent to which DOD monitors or approves defense contractors’ ethics programs—we previously recommended in 2005 that DOD needs to obtain more knowledge of contractors’ standards of conduct efforts and that enhanced awareness of contractor ethics programs would enable DOD to assess whether the public trust is protected. We recommended that DOD take actions to improve its knowledge and oversight of contractors’ ethics programs. DOD commented that the recommendation was currently implemented when contracting officers make, prior to awarding a contract, an affirmative determination of responsibility, which included consideration of the potential contractor’s business practices and the potential contractor’s integrity. As we then indicated in response to DOD’s comment, more could be done through assessments of contractor ethics programs to enhance contracting officers’ ability to make such determinations.

Four years later, with the FAR rules having been significantly expanded, DOD has not determined what if any changes are needed to its oversight of contractor ethics programs during contract administration. The FAR Council disposition in 2007 of public comments received from the initial FAR rulemaking process provides some insight into what contractors might expect of contracting officials’ oversight of the new ethics program requirements. For example, the FAR Council commented that review of contractors’ compliance would be incorporated into normal contract administration on a discretionary basis, but provided no description on how responsibility for that discretionary duty would be assigned or exercised. If such a review were to be required by DOD guidance, it could use the FAR’s framework for contractor ethics program standards to begin to provide a basis for DCMA or other contracting officials to verify that a contractor has established the type of internal ethics and compliance program to be expected. This, in turn, would provide some assurance that contractors are following ethics programs as expected by the FAR Council to help prevent, detect, and timely disclose contract- related fraud, waste, and abuse.

Beyond the issue of authority, there is no consensus among DOD contractor oversight officials on where organizationally such responsibility for verifying the implementation of the new FAR ethics program requirements during contract administration would be assigned. Some of DCMA’s CAO staff that we spoke with at several of DOD’s largest contractor facilities said that oversight of contractor ethics program compliance would fit into their contract administration area of responsibility. Other contractor oversight officials at DOD IG, DCAA, and the Office for the Under Secretary of Defense for AT&L told us that verifying or monitoring DOD contractor ethics programs would logically fit with DCMA’s contract administration services.

DCMA headquarters officials, however, stated that it is not their agency’s functional responsibility to verify compliance with the new contractor ethics requirements. One senior DCMA headquarters official indicated that it would be better to assign responsibility for this function to DCAA’s contract audit services that assess the adequacy of contractor internal controls for integrity and ethical values. In addition, assigning this function to DCMA alone would leave some defense contractors unaddressed because DCMA is not delegated management responsibility for all defense contracts, according to its headquarters officials. Rather, CAO staff at DCMA’s field locations oversee just those contracts and perform contract administration as assigned to them by procuring contracting officers at DOD’s buying offices. Thus, for many of DOD’s contractors, the contract administration function is retained by the procuring contracting officer. As a result, other contracting officials across DOD procuring offices would need to examine any contractors not covered by DCMA CAO staff.

Not Requiring Display of DOD Hotline Posters Could Delay or Lessen DOD’s Awareness of Problems and Use of Whistleblower Protections

Under the FAR rule effective in December 2007, defense contractors are not required to display DOD IG’s fraud hotline posters if the contractors’ ethics and compliance programs include reporting mechanisms such as their own hotline posters. According to a FAR Council response to public comments in finalizing the agency hotline display rule in 2007, the exemption was to mirror earlier DFARS guidance, which permitted contractors to post their own hotline posters, in lieu of DOD hotline posters, to provide an outlet for employees to raise issues of concern. This exemption has two potential adverse consequences for DOD oversight of defense contractors: lessening DOD’s awareness of problems and diminishing contractor employee awareness of whistleblower protections.

The display of the standard hotline posters available to contractors from DOD IG, shown in figure 1, at contractor work sites is part of DOD’s efforts to fight procurement and other types of fraud, waste, and abuse.

In fiscal year 2008 alone, DOD’s hotline received nearly 14,000 contacts resulting in 2,000 cases referred for investigation. However, because the FAR rule exempts contractors whose ethics programs include their own hotlines, and if more contractors opt not to display DOD’s hotline posters, there is a risk that defense contractor employees will be unaware and not avail themselves of DOD’s hotline. According to our ethics program survey, 55 of the 57 contractors report having one or more reporting mechanisms, such as a hotline for employees to report known or suspected conduct that violates ethics standards or contract requirements.

The DOD hotline poster’s absence from contractor work sites could also jeopardize use of whistleblower protections for contractor employees put in place by DOD in response to legislation separate from the development of the FAR’s contractor ethics program requirements. Under this legislation, federal protections were strengthened for contractor employees against employer reprisals for blowing the whistle to government entities (such as DOD IG through its fraud hotline) on suspected gross mismanagement of or illegal activities on a DOD contract. The contractor internal reporting mechanisms, such as hotline posters required separately under the new FAR rules, do not provide contractor employees with the type of whistleblower protections that disclosure to DOD IG or to other DOD entities offers.

Although DFARS, since January 2009, requires contractors to inform their employees in writing of these federal whistleblower rights and protections, without display of DOD’s hotline poster in a contractor work site, contractor employees could unwittingly disclose information to the company’s internal hotline, where they would not have federal protections in the event of employer reprisals. To facilitate contractor employee whistleblower protections, senior DOD IG headquarters officials responsible for investigations and policy agreed that it might be necessary to modify DOD hotline posters for display at contractor work sites to inform contractor employees that their federal whistleblower protections are limited to disclosures to government entities only.

According to FAR Council responses to public comments received while finalizing the hotline display rule, it is the responsibility of the agency inspector general to determine the need for, and the contents of, the fraud hotline poster. Given the magnitude of DOD’s contract dollars spent each year, with tens of thousands of contractors and ongoing efforts by DOD through its Panel on Contracting Integrity to reduce vulnerabilities to procurement fraud, we asked DOD IG, DCAA, suspension and debarment, and AT&L contractor oversight officials for their views. Specifically, we asked about the risk of defense contractors not displaying DOD hotline posters and whether the hotline poster’s absence in workplaces where DOD contracts are performed might impinge on DOD’s ability to timely address contractor violations. Several of the DOD oversight officials were not aware of the FAR’s exemption regarding display of the DOD hotline posters until we told them.

Once informed, some of these DOD officials expressed concern that the hotline poster’s absence was not in the best interest of reducing DOD’s vulnerability to procurement fraud. DOD IG officials agreed that changing DFARS to require all defense contractors to display the DOD hotline poster should occur. Nearly all of the 57 contractors we surveyed appear positioned to detect problems because they report having mechanisms such as hotlines for employees to report problems. However, the DOD IG team leader for military reprisal investigations expressed concern that contractor employees may be uncomfortable reporting to their companies’ internal hotlines, an indication that relying only on contractor reporting mechanisms could also result in DOD not finding out about the problems at all. Moreover, relying on contractor mechanisms could also delay DOD’s awareness of such problems and its efforts to verify and act on suspected violations. For example, under the new FAR rules, the length of time it takes a contractor to determine if there is credible evidence of a violation subject to mandatory disclosure requirements could affect DOD’s awareness of a problem. With the DOD hotline, DOD has immediate awareness of potential violations from contractor employee calls. While there might be practical reasons for continuing to exempt some defense contractors with their own hotlines from displaying DOD’s hotline poster, such as avoiding the confusion or duplication that could occur with too many hotline posters on display in one place, senior contract policy officials in the Office of the Under Secretary of Defense for AT&L believe that further study is warranted of possible changes in DFARS to more fully protect defense contracting integrity.

Conclusions

The FAR requirements provide new direction for defense contractor ethics programs and present DOD opportunities to improve its oversight of these programs. The new rules seek to promote organizational cultures that encourage ethical behavior as well as promote compliance with the law. Our survey completed in 2009 shows that nearly all of the 57 major defense contractors reviewed included many of the ethics program practices before the FAR rules were finalized consistent with the standards later required for compliance. DOD, in turn, is making positive changes to address some of the new FAR requirements.

However, additional opportunities exist to improve DOD’s oversight in two key areas. The first is in the area of verifying the existence of contractor ethics programs after contract award as part of contracting officers’ contract administration responsibility. The need for new oversight attention and guidance across DOD in the area of contract administration has not been clearly identified or determined. Such additional oversight of contractor ethics programs during contract administration could help ensure that contractor ethics programs are in place as intended.

The second is in the area of DOD’s hotline program, for improved oversight for potential contract-related fraud, waste, and abuse. The new FAR contractor ethics rules have the potential to make the hotline program less effective by ultimately reducing contractor exposure to DOD hotline posters and diminishing the means by which fraud, waste, and abuse can be reported under the protection of federal whistleblower laws. Nearly all of the major contractors surveyed have in-house ethics and compliance programs that exempt them from displaying the DOD posters. It is conceivable that virtually no major contractor would be required to display the DOD hotline posters. Contractor employees might be reluctant to report violations to an in-house hotline that did not provide federal protection against company retaliation. However, employees do have such protection when reporting directly to the DOD hotline.

Recommendations for Executive Action

We are recommending four actions aimed at improving DOD’s oversight of defense contractors’ ethics programs. First, to strengthen oversight during contract administration, we recommend that the Secretary of Defense direct the Under Secretary of Defense for AT&L to determine what if any new DFARS or other guidance is needed to clarify functional responsibilities of DCMA and other contracting officials during contract administration for verifying the implementation of contractor ethics programs as required under the FAR ethics rules.

To avoid delaying or lessening DOD IG awareness of contract-related problems and diminishing of whistleblower protections for contractor employees, we recommend that the Inspector General for the Department of Defense, in accordance with the FAR, take the following two actions: Determine the need for defense contractors’ display of DOD IG’s fraud hotline poster, including directing a contractor to display the DOD IG hotline poster in common work areas for performance of DOD contracts.

Determine the contents of the DOD IG’s fraud hotline poster for display by defense contractors, including revising the poster to inform contractor employees of their federal whistleblower protections.

Fourth, if the need for hotline poster display is determined by the Inspector General, we recommend that the Secretary of Defense direct the Under Secretary of Defense for AT&L to propose revisions to DFARS to include policy requiring a contract clause directing a contractor to display the DOD IG hotline poster in common work areas for performance of DOD contracts. DFARS policy should require a defense contractor’s display of the DOD IG fraud hotline poster irrespective of whether that contractor has its own internal mechanism, such as a hotline for employees to report contract-related improprieties.

Agency Comments

We provided a draft of this report and the e-supplement that accompanies it to DOD for comment. The Office of the Under Secretary of Defense for AT&L’s Director, Defense Procurement and Acquisition Policy, wrote that DOD concurs with the first three recommendations. For example, according to the Director, the first recommendation will be referred to the Defense Acquisition Regulation (DAR) Council to establish a DFARS case to determine whether additional guidance is needed to clarify the administrative contracting officer’s functional responsibilities.

Regarding the last recommendation, the Director wrote that DOD partially concurs because it is not necessary (as we recommended) for the Panel on Contracting Integrity to propose the revisions. However, in response to this recommendation, the Director will submit the proposed revisions to DFARS via memorandum to the DAR Council. Since DOD’s comment concurs with the substance of the recommendation, we revised it to better align with DOD’s preferred method for implementation. DOD’s comments are reprinted in appendix II.

We are sending copies of this report to the Secretary of Defense, the DOD Inspector General, the Director of the Office of Management and Budget, the major defense contractors identified in this report, and other interested parties. The report also is available at no charge on the GAO Web site at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-4841 or needhamjk1@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix IV.

Appendix I: Scope and Methodology

Congress included a provision in the National Defense Authorization Act for Fiscal Year 2008 requiring us to report on the internal ethics programs of major defense contractors. In January 2009, we briefed the Senate and House Armed Services Committees on the preliminary results regarding the reporting requirements specified in the act. After this congressional mandate, revisions to the Federal Acquisition Regulation (FAR) to require internal ethics programs of contractors were finalized. As shown in table 10’s side-by-side comparison, ethics program elements identified by Congress for inclusion in this report are very similar to the contractor ethics program elements now required by the FAR.

Given the similarity between some of the ethics program elements in our congressional mandate and the current FAR requirements, our audit and reporting objectives were to (1) describe the extent to which contractors had ethics programs before the finalization of the FAR rules that included practices consistent with standards now required by the FAR and (2) assess the impact the new FAR rules have on DOD oversight of contractor ethics programs.

Section 848 defined a major defense contractor as any company awarded contracts by DOD during fiscal year 2006 in amounts totaling more than $500 million. To identify those contractors, we analyzed data on the values of contracts awarded to all companies from DOD’s Statistical Information Analysis Division. We initially identified 65 contractors, but we eliminated six companies that merged or were joint ventures, as well as two foreign government entities from our review. Based on our review of DOD’s data, we found that the data were sufficiently reliable for the purpose of identifying which contractors to include in this report. As a result, we identified the 57 contractors meeting the major defense contractor criteria to include in our review. As shown in table 11, which ranks the 57 major defense contractors by the value of their fiscal year 2006 DOD contract awards, these companies accounted for more than half of DOD’s total contract awards in 2006—$164.5 billion of the total $295 billion.

We conducted this performance audit from May 2008 through August 2009 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

The scope and methods we used to perform this audit are described in greater detail in the remainder of this appendix.

First Audit Objective

To determine the extent to which 57 major defense contractors included in our review have internal ethics programs that include certain practices consistent with standards now required by the FAR, we designed and conducted a Web-based survey of all 57 contractors. To gain an initial understanding of the variety and scope of information reasonably available on the range of practices used in relation to internal ethics programs, we reviewed chapter 8 (Sentencing of Organizations) of the 2007 Federal Sentencing Guidelines Manual and government contract management publications for information to describe the FAR contractor ethics program requirements. We also interviewed officials from government and public entities with knowledge in this area, including the Defense Industry Initiative on Business Ethics and Conduct, the Ethics Resource Center, DOD, and the Department of Justice’s National Procurement Fraud Task Force.

To conduct this survey, we pretested it in July 2008 with Lockheed Martin Corporation, Electronic Data Systems Corporation, Agility Logistics, and Mitre Corporation to determine if the questions were clear and unbiased, if the terminology used to describe the programs was precise, and whether the survey questionnaire placed an undue response burden on companies. After revising the survey to incorporate pretest comments in August 2008, we sent an e-mail to all 57 contractors in early September 2008 with instructions for accessing the survey and followed up with nonrespondents by e-mail and telephone to encourage their responses. After we closed out the survey on October 24, 2008, congressional committee staff requested that we pursue responses from the remaining unresponsive contractors, and we contacted the contractors; reopened the survey on March 13, 2009, for 5 business days; and obtained their responses.

The multisection survey was designed to address all of the ethics program elements identified in Section 848 and those now required by the FAR, as shown in table 10’s side-by-side comparison. The survey was organized in various sections to obtain contractors’ self-reported information on their internal ethics programs in key areas, such as (1) code of business ethics and conduct, (2) internal and external mechanisms for reporting misconduct, (3) notification to contractor employees of their right to be free from reprisal for disclosing a substantial violation of law, (4) ethics training programs, (5) internal audits, and (6) appropriate management oversight. GAO’s e-supplement, GAO-09-646SP, provides the questions used for the survey as well as the aggregated responses. We analyzed responses from the 57 contractors that responded to the survey—a survey response rate of 100 percent—in comparison to the FAR requirements introduced from December 2007 through December 2008. In addition to analyzing self-reported information from the survey responses, we requested that all 57 contractors send us corroborating documentation to review for various practices in their internal ethics programs, including practices now required by the FAR, such as management oversight and ethics and compliance training. We did not verify implementation or test the effectiveness of contractor ethics program practices self-reported through our survey.

We selected a nongeneralizable sample of 4 of the 57 contractors for site visits in order to review in detail implementation practices for some of the ethics program policies or procedures described in their survey responses, such as disciplinary actions, hotline calls, and ethics training programs. Our selection criteria in part were whether (1) the contractors were ranked among the top 15 contractors in terms of dollar value of DOD contracts awarded to them in fiscal year 2006 and (2) their survey responses indicated that the contractors had such policies or procedures in use. We visited Boeing Company, General Dynamics, Computer Sciences Corporation (CSC), and Science Applications International Corporation (SAIC) from December 2008 through February 2009 and obtained detailed information from senior company officials responsible for management of ethics program–related practices described in their responses to our survey.

To determine the benefits and challenges contractors face in implementing the new FAR requirements, we analyzed contractor views from our Web- based survey. To identify views and perspectives similar to or different from those obtained from the survey, we reviewed responses to public comments prepared by the FAR Council and published in the Federal Register.

Second Audit Objective

To assess the impact that expanded FAR contractor ethics program requirements have on DOD monitoring or approval of defense contractor ethics programs, we focused on defense and military organizations responsible for oversight and investigation of contractor operations and improper business practices: (1) Defense Contract Management Agency (DCMA); (2) Defense Contract Audit Agency (DCAA); (3) DOD IG; (4) the Air Force, Army, and Navy offices responsible for suspension and debarment; and (5) the Office of the Under Secretary of Defense for Acquisition, Technology and Logistics (AT&L). We interviewed senior procurement officials; general counsel; and contract administration, audit, and investigative service officials concerning these agencies’ roles and responsibilities for monitoring or approving contractor ethics programs. Through interviews and information obtained from these officials, we obtained views and reviewed supporting documentation concerning the impact the new FAR rules have had or could have on DOD contractor oversight activities regarding monitoring contractors’ compliance with ethics program practices required by the FAR rules.

In addition, we communicated with selected officials from the DOD agencies listed above to obtain updates regarding changes in their policies and procedures to implement the expanded FAR requirements, reviewed available guidance and instructions these agencies developed to implement the FAR changes, and analyzed public comments attributed to DOD or other government sources and FAR Council responses published in the Federal Register relevant to agencies’ implementation of the requirements. We also interviewed senior DCAA and DCMA officials colocated at four contractor field office locations to discuss their oversight of contractor ethics programs and any concerns they might have related to those programs on contractor performance and costs. We did not test DOD agencies’ effectiveness in implementing their contractor ethics program oversight activities.

Appendix II: Comments from the Department of Defense

Appendix III: Required Federal Acquisition Regulation Components for Contractor Ethics Programs

The final FAR rule—effective in December 2008—reflects contractor ethics program standards across four broad components, as shown in table 12. According to the FAR Council, the rule establishes a framework for institutional ethics management and disclosure but does not prescribe specific ethical requirements. Contractors are free to establish the appropriate ethical standards for their businesses.

Appendix IV: GAO Contact and Staff Acknowledgments

GAO Contact

Acquisition and Sourcing Management

Applied Research and Methods

General Counsel