WASHINGTON DC | NORTHERN VIRGINIA | NEW JERSEY | NEW YORK | DALLAS | DENVER | ANCHORAGE | DOHA | ABU DHABI Government Investigations – an Inspector General’s perspective Robert K. Tompkins & Clark K. Ervin Patton Boggs, LLP October 29, 2013

INSPECTOR GENERAL PURPOSE, FUNCTIONS, AND POWERS What is an Inspector General and what is the IG’s purpose? Types of reviews IGs may conduct Auditing and other standards IGs follow IG powers Role with respect to other investigative bodies and decision-makers

WHAT TO DO IF AN IG CONTACTS YOUR COMPANY Engage counsel and define counsel’s role Designate counsel as the primary point of contact Counsel should politely attempt to open and control the dialogue (but remember, the IG may have the right to interview employees and others without you)

WHAT TO DO…(cont.) Understand what type of inquiry is being conducted (program review, audit, investigation, etc.) Determine, as best you can, the scope and subject matter the IG is interested in Determine, if you can, what prompted the inquiry (a whistleblower? Is this part of a broader inquiry?)

ENGAGING COUNSEL AND OTHER SUPPORT IG investigations are very different than litigation; In addition to investigative experience, counsel should have: –knowledge of the program (i.e. SBA, government contracting, etc.), –the statutes and regulations, –the broader policy backdrop.

SELECTING COUNSEL (cont.) When: right away and almost certainly before contacting the IG directly. Let your counsel act as a buffer with the IG; counsel can probe the IG in ways you may not be able to. It may be necessary and prudent to hire other professionals, such as an accountants, this should be done through counsel.

MANAGING THE PROCESS INTERNALLY Consider a document hold notice and/or information preservation process The IG may know more than you, so it’s important to conduct your own parallel internal investigation (see below) BUT…Be prepared to share your findings

INTERNAL INVESTIGATION Sources of information: internal and external Preserving information and documenting the review Be mindful that your findings likely must be disclosed –Mandatory Disclosure requirements; –suspension and debarment considerations; –federal sentencing guidelines

ACTING ON INFORMATION Be proactive: –Assess compliance – is there a violation? Is there a difference of interpretation of program rules or requirements? –Assess internal controls – can they be enhanced? –Determine the need for corrective action, and take it where appropriate –Communicate your efforts to the IG

MANAGING THE RELATIONSHIP WITH THE IG -- SOME COMMON ISSUES Manage the scope of the inquiry – narrowing and refining the scope of IG requests Understand and anticipate the IG’s concerns and be prepared to mitigate/explain issues Understand and act on the IG’s investigative requirements and standards Seek the opportunity to comment on findings/draft reports before they are finalized

WHAT DOES THE IG DO WITH THE INFORMATION IT COLLECTS? The IG’s role is to gather facts and make recommendations For investigations, the investigator will draft a report, but it may be for internal government use only In other cases the IG may prepare a public report The IG may seek comments on a draft report, but they are not required to do so Remember: the IG has no enforcement authority BUT works closely with those with enforcement power

CONSIDER HOW THE IG REPORT WILL BE USED Some possibilities-- –As a precursor or basis for other government action (i.e. administrative, civil, criminal) –As a basis for further inquiry (i.e. related to the agency actions above, by Congress, by the Press) –Be prepared to manage the impact of the release of the IG’s report

BEST PRACTICES Adopt and maintain a sound ethics and compliance program Establish an early warning system Be proactive in responding to any government inquiry Take any IG inquiry very seriously Do your best to get ahead of the curve and be proactive in your response

For Further Information Robert K. Tompkins Partner, Chair Government Contracts Practice Patton Boggs, LLP 2550 M Street, NW, Washington, DC Clark Ervin, Partner Patton Boggs, LLP 2550 M Street, NW, Washington, DC