Read the press about Judge James Gwin’s decision in  United States ex rel. Barko v. Halliburton Co., No. 1:05-cv-1276 (D.D.C. Mar. 6, 2014), and you might see it as the beginning of the end for the attorney-client privilege in internal investigations. While the ultimate implications of the decision remain to be seen, that’s not how we see it.

The attorney-client privilege and the work product doctrine are alive and well, as is their application to internal investigations. The FAR clause implementing the requirement for a Code of Business Ethics and Conduct preserves the contractor’s right to conduct an internal investigation subject to the protections of the attorney-client privilege and the work product doctrine. See FAR 52.203-13. The Justice Department’s Principles of Federal Prosecution of Business Organizations explicitly states that a company is not required to waive privilege in order to get credit for cooperating with a government investigation. “[W]aiving the attorney-client and work product protections has never been a prerequisite under the Department’s prosecution guidelines for a corporation to be viewed as cooperative.”

For federal contractors, publicly-traded companies, and others in highly-regulated industries, the real question presented by Barko is more granular: How can my company avoid the same result?

Continue Reading Preserving attorney-client privilege in internal investigations after Barko v. Halliburton

Federal agencies have closely guarded their authority to suspend and debar contractors that they determine are not “presently responsible.” Beyond the procedural safeguards set forth in FAR Subpart 9.4, the only practical limit on agency discretion in making suspension and debarment determinations can be found in the Interagency Committee on Debarment and Suspension, which provides a method for determining which agency should take the lead in a particular suspension or debarment matter.

This system may be headed for a fundamental change. Representative Darrell Issa, Chair of the House Oversight and Government Reform Committee, has circulated draft legislation entitled the “Stop Unworthy Spending Act”—the “SUSPEND Act [pdf].” As written, the SUSPEND Act would terminate the authority of all civilian agencies to make their own suspension and debarment determinations.  Instead, this authority would be consolidated into a single entity—the Board of Civilian Suspension and Debarment—which would reside in the General Services Administration.Continue Reading Tightening the belt on agency discretion in suspension and debarment