Photo of Agustin D. Orozco

Agustin D. Orozco is an associate in Crowell & Moring's Government Contracts Group and a resident in the firm's Los Angeles office. As a government contracts lawyer, Agustin represents clients in all aspects of procurement law, including civil False Claims Act (FCA) and other government contracts litigation, internal investigations, state procurement, disputes, claims, terminations, and cost accounting issues. He also has experience in matters involving the Foreign Corrupt Practices Act (FCPA) and has provided counsel and litigated matters for contractors and individuals with regards to obtaining and maintaining security clearances. In these endeavors, Agustin represents contractors who perform federal, state, and local government contracts.

On November 2, 2016, the Office of Government Ethics (OGE) issued a final rule amending the regulations that set forth the elements and procedures of the executive branch ethics program by defining and describing the executive branch ethics program, delineating the responsibilities of various stakeholders, and enumerating key executive branch ethics procedures.  The final rule amends 5 C.F.R. part 2638 by creating six new subparts: (A) Mission and Responsibilities; (B) Procedures of the Executive Branch Ethics Program; (C) Government Ethics Education; (D) Correction of Executive Branch Agency Ethics Programs; (E) Corrective Action Involving Individual Employees; and (F) General Provisions.  The final rule is effective January 1, 2017.

Among the more notable amendments, the final rule centralizes the procedures for the executive branch ethics program under subpart B.  Currently, these procedures are not only found in various subparts of the existing regulations, including subpart C (Formal Advisory Opinion Service) and subpart F (Executive Branch Agency Reports), but also in several advisories available on OGE’s website.  These procedures relate to the furnishing of information, records and reports to OGE; the executive branch’s collection of financial disclosure reports; and the issuance of formal advisory opinions and other written guidance by OGE.  Further, the amended subpart B includes procedures that pertain to ethics preparations for presidential transitions.

The final rule also amends subpart D, which establishes procedures for the correction of executive branch ethics programs. These procedures are implemented when there are indications that an agency ethics program is not in compliance with the requirements set forth in applicable government ethics laws and regulations.  Subpart D amends the current procedures by enumerating several informal actions that the Director of OGE may take in order to bring the agency into compliance.  These informal actions are in addition to the formal action that may be taken by the Director of OGE in the event informal action does not resolve the deficiency.

 

In this year’s set of legislative proposals forwarded to Capitol Hill, DoD and NASA have again requested changes to the Program Fraud Civil Remedies Act (“PFCRA”) to create, in the government’s view, a more viable administrative remedy for fraud and false claims totaling less than $500,000.  The administrative process would proceed similarly to the suspension and debarment process with a fixed administrative record and an administrative decision official within each agency.  See proposed Section 805 in the Fifth Package of Legislative Proposals Sent to Congress for Inclusion in the National Defense Authorization Act for Fiscal Year 2017.

PFCRA (Chapter 38 of Title 31, United States Code) was enacted in 1986 as a government wide administrative mechanism for combating small-dollar fraud.  As it stands, PFCRA allows federal executive branch agencies, with Department of Justice (“DoJ”) approval, to address false, fictitious, or fraudulent claims and statements where the alleged liability is less than $150,000.  At the time of its enactment, Congress considered PFCRA to be a remedy to DoJ’s declination to pursue criminal or civil penalties where the alleged fraudulent activity resulted in little to no financial loss to the government.  Since then, however, PFCRA has been viewed by some government agencies, including the DoD, as being cumbersome to the point of making it impractical for government agencies to pursue a remedy under the Act.  Indeed the purpose for the proposed amendments is to create an “effective” administrative remedy.

Continue Reading DoD And NASA Again Seek Changes to the Program Fraud Civil Remedies Act