of XX Fraud, Investigation, Suspension and Debarment in Government Contracting Peter J. Eyre, Partner, Crowell & Moring LLP ©2015 PubKLearning. All rights reserved.1 SUSPENSION AND DEBARMENT TRENDS Increased activity –Particularly significant uptick at historically less active agencies –Focus on fact-based actions –Focus on conduct “unrelated” to government contracting More significant collateral consequences Companies thinking proactively about suspension and debarment issues

of XX Fraud, Investigation, Suspension and Debarment in Government Contracting Peter J. Eyre, Partner, Crowell & Moring LLP ©2015 PubKLearning. All rights reserved.2 DOJ FOCUS ON EFFECTIVE COMPLIANCE PROGRAMS Series of speeches focusing on the following hallmarks of an effective program o High-level commitment o Written policies o Periodic risk-based review o Proper oversight and independence o Training and guidance o Internal reporting o Investigation o Enforcement and discipline o Third-party relationships o Monitoring and testing Additional DOJ resources relating to compliance, ethics, and internal controls

of XX ©2015 PubKLearning. All rights reserved.3 UPDATE ON IMPLIED CERTIFICATION AS LIABILITY THEORY UNDER THE FALSE CLAIMS ACT Fraud, Investigation, Suspension and Debarment in Government Contracting Peter J. Eyre, Partner, Crowell & Moring LLP CircuitImplied Certification Standard Second, Third, Sixth, and Tenth Circuits Submitting a claim for payment impliedly certifies compliance with material contract provisions, regulations, and statutes on which the government has expressly conditioned payment. First, Fourth, and Federal Circuits Submission of a claim for payment creates implied certification of compliance with contract provisions, statutes, and regulations that are material to the government’s decision to pay. (Sometimes referred to as the Blackstone view. Blackstone was a First Circuit opinion that declined to adopt the express condition-of-payment requirement.) D.C., Ninth, and Eleventh Circuits Recognition of implied certification theory without adoption of express condition-of- payment or Blackstone view. Seventh CircuitImplied certification theory rejected. Fifth and Eighth Circuits Implied certification theory not yet recognized.