Ethics for an outsourced government
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Ethics for an Outsourced Government. Kathleen Clark Washington University in St. Louis Board of Contract Appeals Bar Association December 2013. Research Support. Administrative Conference of the United States (ACUS). Methodology. 90+ interviews with: Procurement & Ethics Officials

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Ethics for an Outsourced Government

Kathleen Clark

Washington University in St. Louis

Board of Contract Appeals Bar Association

December 2013


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 Statute18 U.S.C. § 208(a)

“employeeof 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 onGovernment Employees

  • financial influences

  • use of government position

  • outside activities

  • post-government employment

  • pre-government employment


One Size Does Not Fit All

  • Stricter Rules - Sensitive Positions

    • High-Level

    • Procurement

    • Bank Examiners

  • Looser Rules - Temporary Employees

    “Special Government Employees” or SGEs


  • Principles Underlying Government Ethics Restrictions

    • Fiduciary nature of public office

      (2) Public’s confidence in government integrity

    • Congressional and executive

      branch control of federal resources

    • 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


    ABA House of Delegates (2013)

    Supports 2011 FAR rule

    Recommends

    - expanding PCI standards to high-risk contracts

    - requiring certifications by contractors


    Publications

    Fiduciary Standards for Bailout Contractors:

    What Treasury Got Right and Wrong in TARP,

    95 Minn. L. Rev. 1614(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)


    Ethics for an Outsourced Government

    Kathleen Clark

    [email protected]

    Board of Contract Appeals Bar Association

    December 2013


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