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Demonstrating the effectiveness of US government contractors’ compliance programs

David Robbins (drobbins@jenner.com) and Erin Schrantz (eschrantz@jenner.com) are Co-Chairs of the Investigations, Compliance and Defense and Government Contracts Practices at Jenner & Block, headquartered in Chicago, Illinois, USA.

United States government contractors are contractually required to maintain business ethics and conduct programs. These contract clauses, prescribed by regulation, require companies to “exercise due diligence to prevent and detect criminal conduct” and to “otherwise promote an organizational culture that encourages ethical conduct and a commitment to compliance with the law.”[1] Those are high marks to hit, and yet the contract clause itself does little to explain how government contractors should comply. Instead, it only sets the foundational bare minimum effort for the industry.

Contractors, like other organizations, also have the benefit of the Department of Justice (DOJ) Evaluation of Corporate Compliance Programs guidance.[2] Developed in 2017 and most recently expanded in 2020, the guidance instructs prosecutors across the Criminal Division on how to probe the efficacy of an organization’s compliance program and provides an important window for corporate executives into DOJ’s expectations of compliance programs and the leaders who bear responsibility for their success. The guidance applies broadly to organizations and corporations across industries, confronting different regulatory landscapes and varied compliance risks. In that sense, the challenge for government contractors is to craft a compliance program that would satisfy DOJ’s expectations, taking into account the unique regulatory landscape and risk profile in their industry and their existing (if not necessarily detailed) contractual requirements.

In this article, we focus on four aspects of effective compliance programs that government contractors should put at the top of their priority list to both enhance their business ethics and conduct programs and better defend their compliance programs in future investigations.

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