Category: Anti-Corruption

U.S. Regulators Plan to Align Debarment Rules for Contracts and Grants

Debarment – the exclusion of a firm or individual from working with a government – allows governments to protect themselves from the reputational and performance risks posed by unqualified firms and individuals.  As a March 2019 conference at King’s College, London made clear, governments the world over are reforming their debarment systems, though often in strikingly different ways.  The U.S. government is now moving to reform its debarment system, by more closely aligning the rules that govern debarments for grants and contracts.  The rules would be revised “to improve consistency between the procurement and non-procurement procedures on suspension and debarment, based on recommendations of the Interagency Suspension and Debarment Committee,” under a pending Federal Acquisition Regulation (FAR) reform case No. 2019-015.  Many have long argued for this reform, and a 2017 Public Contract Law Journal article by Robert Meunier and Trevor Nelson described the issue in detail.  A report on the pending FAR case is currently due in January 2020, and the U.S. Office of Management and Budget anticipates that a Notice of Proposed Rulemaking (NPRM) will be published in February 2020.  We will be tracking this issue closely in a special short seminar that George Washington University Law School offers online, on suspension and debarment.

Tbilisi, Georgia: Impact of Corruption in Public Contracts – an International Dialogue and Exchange of Experiences

Tbilisi, Georgia

On October 28, 2019, a training session was held in Tbilisi, Georgia on anti-corruption efforts. The session was convened by the European Union’s “twinning” project, “Strengthening Public Procurement Practices in Georgia,” and moderated by Ms. Dana Mitae, Legal Advisor and Consultant for the Department for Consulting, e-Procurement and International Affairs, Federal Procurement Agency of Austria, Austria. The session built on Georgia’s Association Agreement with the European Union, which calls in Chapter 8 for Georgia to incorporate important elements of the European Union’s procurement directives into Georgia’s own laws and institutions. The session was opened by Mr. Levan Razmadze – Chairman of State Procurement Agency of Georgia, and outside experts included Prof. Christopher Yukins, George Washington University (USA), Mr. Mihai Dragutescu, President of the Senate for Administrative Cases (Romania), and Ms. Maja Kuhar, President of the State Commission for Supervision of Public Procurement Procedures, Zagreb (Croatia).

Mihai Dragutescu, President of the Senate for Administrative Cases (Romania)
Maja Kuhar-SlidesDownload
Chris Yukins-Slides (Part I)Download
Chris Yukins – Slides (Part II)Download

Reference Materials

Law of Georgia on Public ProcurementDownload
Law of Georgia on Conflict of InterestDownload

EU-Georgia Association Agreement

U.S. Justice Department Issues New Corporate Compliance Guidance

On April 30, 2019, the U.S. Department of Justice’s Criminal Division announced revised guidance for assessing corporate compliance systems.  The guidance goes to what authorities abroad sometimes call corporate “self-cleaning” — efforts by private firms to identify and remediate improper behavior.  (See, for example, Article 57 of European Public Procurement Directive 2014/24/EU.)  The new guidance expands on the 2017 guidance (below), and elaborates on the Justice Department’s summary discussion of corporate compliance programs in the Justice Manual §  9-28.800. 

As the new guidance suggests, it is generally in accord with prior guidance on corporate compliance systems, such as the guidelines issued by the U.S. Sentencing Commission, the guidance published by the U.S. Justice Department and the U.S. Securities & Exchange Commission (SEC) under the Foreign Corrupt Practices Act (FCPA), and the UK Ministry of Justice guidance implementing the UK Bribery Act, among many similar guidance documents published by governments and international organizations under recent anti-corruption laws.  As the FCPA guidance acknowledges, at page 56 and note 309, requirements for corporate compliance systems are highly uniform around the world.

The new guidance is noteworthy, though, for stressing (at pages 9-12) that a firm with an effective compliance system should maintain a strong compliance function, either in-house or through an outsourced vendor.  As companies around the world move to implement compliance systems, they should recognize that enforcement authorities will often expect to see a robust compliance function in place, with the autonomy and authority necessary to address emerging risks of corruption and misconduct.

Superseded U.S. Department of Justice Guidance – Feb 2017 – Evaluation of Corporate Compliance ProgramsDownload