THERE’S A LOT OF MISINFORMATION OUT THERE ON PRIME & SUB COMPLIANCE
It’s hard enough to comply with myriad government procurement rules, even when contractors and their subs get accurate information. It’s almost impossible to do so when there are dozens, if not more, people offering varying interpretations of what a company does and does not have to comply with in a specific situation. While the most obvious list of compliance requirements is contained in specific contracts, not everyone reads those all the way through, especially the part about “clauses included by reference.” They should. Even, then, however, companies must also deal with the Christian Doctrine which essentially says that a contract term that should have been included should be understood to be in the contract even if it was inadvertently left out. Like many areas of government business, understanding a company’s compliance burden and setting up a compliance program are not go-it-alone projects. Who to listen to, though? We’ve recently run across one person claiming that there are virtually no flow-down clauses to subcontractors offering Commercial Off the Shelf (COTS) solutions. Wrong. There are fewer compliance requirements in such circumstances, but “fewer” does not equal “none”. While experienced consultants can offer insights and explanations of what the rules say and assist in setting up compliance programs, no firm should proceed too far without seeking input from an attorney who has specific experience in the pertinent area covered by a contract. Attorneys that are primarily engaged in general law or something other than government contracting will likely not give as good advice as counsel experienced in a company’s specific area of operation. Also, when consulting the right attorney, companies should make sure that they get advisory opinions in writing. That written opinion should become part of the contract compliance file. Having written compliance plans that are actually followed, with regular insights from qualified outside counsel is an established best practice. Free? Nothing is free, especially not fines or False Claims Act settlements that can add up to substantially more than building a sound foundation at the outset.