Ethics for an Outsourced Government Kathleen Clark Washington University in St. Louis Board of Contract Appeals Bar Association December 2013 0.

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Presentation transcript:

Ethics for an Outsourced Government Kathleen Clark Washington University in St. Louis Board of Contract Appeals Bar Association December

Research Support Administrative Conference of the United States (ACUS)

Methodology 90+ interviews with: Procurement & Ethics Officials Government Investigators Contractors NGOs Capitol Hill False Claims Act lawyers

An Illustration of the Problem Dan Jester advised Treasury on AIG bailout owned Goldman Sachs stock handled AIG bailout in way that benefited Goldman Sachs -- & himself

Criminal Conflict of Interest Statute 18 U.S.C. § 208(a) “employee of the executive branch... participates personally and substantially... through... the rendering of advice,... in a... particular matter in which,... he... has a financial interest”

Federal Government Spending

Number of Federal Employees

Spending on Service Contracting

Spending on Services v. Products

Ethics Restrictions on Government Employees financial influences use of government position outside activities post-government employment pre-government employment

One Size Does Not Fit A ll Stricter Rules - Sensitive Positions High-Level Procurement Bank Examiners Looser Rules - Temporary Employees “Special Government Employees” or SGEs

Principles Underlying Government Ethics Restrictions (1) Fiduciary nature of public office (2) Public’s confidence in government integrity (3) Congressional and executive branch control of federal resources (4) Devote adequate attention

Few Ethics Restrictions on Government Contractor Personnel A few agencies - narrow regulations re: contractor [personal] PCI Government-Wide Regulations re: Contractors’ [organizational] OCI Contractors’ Internal Ethics Codes

Exception: FDIC Deems some contractor personnel to be government employees Comprehensive regulations for contractors personnel – Financial influences - including family – Misuse of government resources - including info – Outside activities – Post-employment

ACUS Recommendation Optional FAR clauses for contracts with high risk of: personal conflicts of interest (PCI) misuse of non-public information Contractors must: train internally report PCIs screen employees externally report (to government) violations

FAR Clause on PCI (2011) Contractor personnel who perform acquisition functions closely associated with inherently governmental functions 15

ABA House of Delegates (2013) Supports 2011 FAR rule Recommends - expanding PCI standards to high-risk contracts - requiring certifications by contractors 16

Fiduciary Standards for Bailout Contractors: What Treasury Got Right and Wrong in TARP, 95 Minn. L. Rev (2011) Financial Conflicts In and Out of Government: Ethics, Employees and Contractors, 62 Alab. L. Rev. 955 (2011) Ethics for an Outsourced Government Administrative Conference of the United States (2011) Publications

Ethics for an Outsourced Government Kathleen Clark Board of Contract Appeals Bar Association December