Government contractors must comply with the Mandatory Disclosure Rule (FAR 52.203-13), despite its lack of defined terms or any formal guidance concerning its application. Even today, years after the rule was enacted, industry insiders may not always understand what happens to Mandatory Disclosures after they are submitted, which government stakeholders review the disclosures, or how to mitigate the risk of an investigation. Government side experience and a deep understanding of government contracts laws and regulations are helpful when working to navigate the mandatory disclosure process while reducing enforcement risk.
Crowell & Moring’s nationally recognized Government Contracts Group helps clients strategically manage risk through the Mandatory Disclosure process by helping clients understand how the Mandatory Disclosure Rule works in practice, as well as the robust body of laws and regulations that impact them. Our disclosure team includes David Robbins, a former Air Force Procurement Fraud Remedies Director and suspending and debarring official. While in government, David also co-chaired the U.S. Department of Defense and NASA Procurement Fraud Working Group, which focused on inter-agency coordination with the Department of Justice (DOJ), various Offices of Inspector General, and other government agencies, including coordinating responses to Mandatory Disclosures. Clients turn to Crowell & Moring’s extensive capabilities across the government contracts spectrum and our specific awareness of the Mandatory Disclosure process to evaluate, monitor, and manage required disclosures; achieve successful outcomes; and maintain eligibility for new contracts and awards.
Mandatory Disclosure: Requirement and Opportunity
Contractors understand Mandatory Disclosure requirements, but few understand the opportunities that disclosures present. At the company level, well-crafted disclosures can enhance an organization’s credibility with regulators, mitigate risks, seed defenses, and tell the contractor’s story before investigating agents form their opinions. Tracking mandatory disclosures across the industry can provide advance notice of future enforcement activities and an early opportunity to enhance internal controls.
While a given disclosure is generally submitted to one agency, numerous auditors, inspectors general, investigating agents, debarring officials, contracting officers, and others from a range of government departments receive and evaluate Mandatory Disclosures, regardless of where they are submitted. In addition to making individual determinations about whether to bring a case, these government stakeholders regularly share information with their agency counterparts, which can broadly impact a company’s enforcement risk.
Drawing on our expansive, government and industry experience with Mandatory Disclosures, Crowell & Moring has a detailed understanding of regulators’ concerns across the U.S. government, and we help clients craft effective disclosure strategies with regard to what are often true, bet-the company crises.
Full-Lifecycle Disclosure Management
- Strategy development. We counsel clients as they answer the important, foundational questions:
- Is there a disclosure obligation?
- What are the benefits of disclosure? How concerned will the government be?
- Disclosure drafting. Keeping our understanding of agency priorities and goals in view, we help clients draft disclosures that eliminate unnecessary confusion and establish an ongoing, cooperative relationship with officials that minimizes enforcement risk. We help clients tell the right story, in the right way, to the right people.
- Investigation and inquiry response. Multiple agencies can respond to Mandatory Disclosures, and some may open investigations. When regulatory and law-enforcement officials seek additional information or launch formal investigations of alleged noncompliance, or when clients are required to respond to show cause letters or requests for information from Debarring Officials, we help clients respond and marshal their defenses. We help clients negotiate resolutions that achieve the goals of their companies and the investigators alike.
- Disclosure trend tracking. We monitor and analyze trends in Mandatory Disclosures submitted by our clients, as well as the responses and concerns of various regulators, to help clients identify key areas of potential risk. This gives advanced warning of possible future enforcement action and an opportunity to improve internal controls to mitigate risk, as well as establish a strong defense should a potential violation arise.
Crowell & Moring’s disclosure team includes a diverse group of lawyers who have extensive experience with all key U.S. military, civilian, and intelligence agencies, including:
- Department of the Air Force
- Department of the Navy
- General Services Administration (GSA)
- Department of Homeland Security
- Department of Education
- Environmental Protection Agency (EPA)
- Defense Logistics Agency
A Focus on Business
Whether representing aerospace and defense companies, services contractors, manufacturers, or other contractors, we are known as unwavering advocates who are focused on our clients’ business goals. We also recognize that our clients’ legal budgets are limited and have developed a range of fixed-fee Mandatory Disclosure Strategic Management options that offer greater predictability in processes and pricing.