UK Bribery Act - still more delays

The implementation of the UK Bribery Act has been delayed, the UK Ministry of Justice has confirmed today.

The Act was due to be implemented in April 2011, three months after guidance was to be published about the “adequate procedures” firms should have in place to prevent bribery.
It was originally thought that the guidance would be published at the end of this month. The guidance has now been delayed although there are rumours circulating that it may be published in the next few weeks.

As previously reported, the Act has been the subject of significant debate about its potential adverse impact on the British economy as well as of criticism about its lack of clarity.

It is thought that the delay will result in changes to the guidance, a draft of which has so far been the subject of consultation, but not to the Act itself.

Coming in April: Transparency, by FAPIIS

This post was written by Joelle E.K. Laszlo.

Though April 15 will not be tax day this year, it may still be scary for some. According to an interim rule published last week in the Federal Register, April 15 is the day that information in the Federal Awardee Performance and Integrity Information System (“FAPIIS”) will be made available to the public, pursuant to the 2010 Supplemental Appropriations Act. While the interim rule assures that contractor past performance reviews will not be among the information available on FAPIIS, and that certain documents may require redaction before they are posted for public access, contractors wanting a say in what the public ultimately gets to see on FAPIIS are advised to speak now (or at least by the end of March).

Aside from announcing the date that FAPIIS will go live, the interim rule establishes a new Federal Acquisition Regulation (“FAR”) contract clause to provide notice of the public availability of certain data in FAPIIS. The new FAR clause is to have been included in all solicitations and contracts issued on or after January 24, 2011. The interim rule also instructs contracting officers to bilaterally modify any existing contracts to include the new FAR clause. Finally, the interim rule notes that the public must use the procedures under the Freedom of Information Act (“FOIA”) to request access to information posted to FAPIIS before April 15, 2011 (though under the new FAR clause some that information must be re-posted, and will thus become publicly available).

As we previously reported, FAPIIS brings together the information from a number of Federal databases and records on contractor performance. Specific details that will be publicly available through FAPIIS include: contract terminations for default; contractor suspension, debarment, and other penalties; contract-related criminal, civil, and administrative proceedings and their outcomes; and contractor non-responsibility determinations. A provision in the 2011 Defense Authorization Act requires contracting officers to report contractor violations of bribery laws in FAPIIS, which may also be among the publicly available details. (Contrary to some reports, however, the 2011 Act does not appear to require FAPIIS reporting of any reduction in contractor profits due to reckless or negligent behavior.)

To the chagrin of transparency advocates, the interim rule advises contracting officers to ensure that no information is posted to FAPIIS “that would create a harm protected by a disclosure exemption under FOIA,” and invites comments on regulatory or other guidance required as the data on FAPIIS becomes publicly available. In order to be considered in the formulation of the final FAPIIS rule, all comments are due on or before March 25th.

The Spending Debate in Washington: Its déjà vu all over again

The post was written by Robert Helland.

With the Republican Party in control of the House of Representatives this year, attention has focused on where the areas of conflict will be between the House, the Democratic-controlled Senate, and the White House. While a lot of attention has been focused on efforts to repeal health care and the upcoming hearings promised by new committee chairmen, including House Oversight and Government Reform Chairman Darrell Issa (R-CA-49), a bigger battle looms: Congress and the President must agree on a number of important spending decisions, from funding the government for the remainder of the current fiscal year to raising the national debt. Despite the recent calls for a more civil debate, the strong possibility exists that we could easily see a rerun of the budget stalemate that occurred in 1995 between then-President Clinton and the Republican-controlled Congress. This stalemate led not to one but two shutdowns of the federal government. As Yogi Berra once said: "Its déjà vu all over again".

Here are three budget tripwires to look for in the upcoming weeks, any one of which could lead to a budget standoff:

1. Talk about taking you time paying your bills: Congress and the President have still not agreed on a budget for the current fiscal year, which began over three months ago. Fiscal Year 2011 ("FY 11") began on October 1, 2010 and Congress and the President have still not come to agreement on the 12 spending bills needed to fund the operations of the federal government. Instead, they have chosen to pass a continuing resolution ("CR"), which keeps spending at FY 11 levels and puts off a decision on a final budget till March 4, 2011. Expect to see Republicans push for significant cuts in the FY 11 budget as the March 4th deadline approaches.

2. Oh, and about that $14 trillion we owe…well, we need more. One nice thing about being a debtor when you are the federal government: you can always give yourself the authority to borrow more money. And the government will need it too: at some point in March, the federal government will hit the current $14 trillion debt ceiling and will need to either raise it or run out of money and shut down.

3. Then there's FY 2012. And before the ink dries on any agreement on FY 11 spending or raising the debt limit, the decision making process on FY 12 begins, with the same differences on spending between the parties. President Obama laid down a marker down this week in his State of the Union address when he called for a targeted domestic spending freeze on all non-security domestic spending which would reduce domestic spending by $400 billion over ten years. This is in advance of the Obama Administration’s FY 12 budget proposal to Congress, which is anticipated in February. However, the gap between the President’s budget cutting proposal and those put forth by Republicans suggests that an agreement with the Republicans won't be easy to reach by the time a FY 12 budget needs to be in place, by October 1, 2011.

Both Republicans and Democrats are aware of the high risks for both parties – and the country - should there be a budget standoff leading to a partial or total government shutdown. The recent announcement from the Congressional Budget Office that the deficit for FY 11 will rise to a record $1.5 trillion may help parties come to an agreement on spending. But given the gulf that currently exists between Democrats and Republicans, a shutdown cannot be ruled out.
 

Taking Another Crack At It: DoD Proposes Regulation To Tighten Controls on Contractor Business Systems

This post was written by Lorraine M. Campos and Steven D. Tibbets.

On December 3, 2010, the U.S. Department of Defense (“DoD”), issued a proposed rule that, if finalized, will increase the DoD Federal Acquisition Regulation Supplement’s (“DFARS”) requirements for contractors’ business systems. The proposed rule defines what constitutes a deficient business system and provides for withholding of payments when deficiencies are identified. Generally, the proposed rule would apply to contractors performing DoD contracts that either: (a) are worth $50 million or more; or (b) are awarded on the basis of cost and pricing data and meet certain dollar value thresholds.

We first reported on this effort approximately a year ago, when the DoD published its initial draft of the proposed rule. We noted that the rule’s definitions regarding what constituted a deficient business system seemed vague and that the DoD’s application of those definitions could be unpredictable. In its revised proposed rule, DoD removed “phrases such as ‘including but not limited to’ and ‘as applicable’” from a list of compliance criteria, but otherwise did not find that the definitions in the proposed rule presented a risk of subjective and inconsistent application of criteria in determining whether business systems are deficient.

Otherwise, the proposed rule provides for a system under which Government auditors will review contractor business systems for DoD contracts over certain dollar thresholds – different thresholds apply to different business systems. Where the Government makes a preliminary finding that deficiency exists, the proposed rule allows the contractor 30 days to respond, after which the Government will review the responses and make a final determination regarding whether a business system is deficient. The consequence for a deficiency under the proposed rule is that a contracting officer is to withhold 5% of payment under a contract until the Government receives a corrective action plan. Upon receipt of a plan, the contracting officer may, but is not required to, reduce the withholding to 2%. The contracting officer may not terminate the withholding until the contractor has implemented its corrective action plan. Thus, the proposed rule’s penalty provisions can harm a contractor’s cash flow position until any deficiencies are corrected.
 

Regulatory Round Up 1.24.11

 

Proposed restructuring of UK agencies dealing with economic crime and fraud continues at pace

This post was written by Simon Hart and Tom Webley.

In advance of the much anticipated consultation in the United Kingdom on the creation of the proposed Economic Crime Agency (“ECA”), which is due to take place this spring, the Home Office announced this week that it plans to take a greater role in the fight against economic crime by having the ECA fall within its remit rather than that of the Treasury. On 17 January 2011 it set out plans to merge the Serious Fraud Office (“SFO”) into the soon-to-be-formed, all-powerful National Crime Agency (“NCA”). It also suggested that the ECA could become part of the NCA.

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Strong debate continues over the UK Bribery Act and its implementation

This post was written by Simon Hart and Sarah Wolff.

On January 13, 2010, the London Evening Standard reported that Prime Minister David Cameron’s office has ordered a review of the new UK Bribery Act as a result of strong concerns expressed by UK business leaders and others about the potential adverse impact the Act might have on the British economy. The Act has the effect of potentially criminalising corporate gift-giving, facilitation or "grease payments" and hospitality, regarded by many as vital to doing business abroad. The review will be conducted by a committee chaired by the Chancellor of the Exchequer and the Business Secretary whose charge is to scrutinise a broad range of regulations which are perceived as hindering business growth.

That same day, Vivian Robinson, the General Counsel of the Serious Fraud Office (SFO), the agency responsible for enforcing the sweeping anti bribery law, predicted that the review would not result in any “transformational changes” to the Act and may only impact the formal guidance on the Act that is to be published by the UK’s Ministry of Justice. That said, Mr. Robinson also stated that we can expect to see the formal guidance issued by the end of January. [For our posting on the Ministry’s consultation with industry which has taken place in relation to the guidance, see link ].  If that is the case then the effective date of the Act will remain on track for April 2011.

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Regulatory Round Up 1.13.11

U.S. Citizenship and Immigration Office To Assist in Enforcing U.S. Export Regulations

This post was written Christopher B. Monahan.

The new Form I-129 has highlighted the restrictions on deemed exports of technology to foreign national employees. Originally effective December 23, 2010, the new form requires employers to certify that they will not "release" controlled technology or data to an H-1B, L-1 or O-1 worker without the appropriate "export license," if one is required. Technology or data can be controlled for export purposes under either the Export Administration Regulations (“EAR”) or the International Traffic in Arms Regulations (“ITAR”). Both the EAR and the ITAR already prohibit the unauthorized disclosure of controlled technical data to foreign persons. U.S. Citizenship and Immigration Services’ (“USCIS”) new form will now require employers to certify that they are acting in compliance with the current law.

The ITAR and EAR are complex and classification can be burdensome depending on the technology involved, the available resources to devote to the project, and the IT issues in identifying and segregating the data. Restrictions on disclosure of controlled data to foreign persons apply even if the technology is not shared outside of the United States and even if the employer does not do any international business.

Due to the concerns and questions raised about the new Form I-129, USCIS has postponed the new form’s requirement that employers certify that they will not release controlled technical data. Employers will not have to complete the portion of the form requiring the certification until February 20, 2011. 

French data protection authority CNIL narrows the scope of whistle blowing hotlines

This post was written by Daniel Kadar.

The CNIL, the French data protection authority, has just published the conclusions of its deliberation on October 14, 2010 concerning its new approach of whistle blowing hotlines.

Operating a whistle blowing hotline in France is subject to notification to the CNIL since personal data are collected and processed. This is a specific notification procedure since running such a hotline is not considered as belonging to the management of Human Resources.

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ICO welcomes 'Freedom Bill' proposals to extend scope of Freedom of Information Act, increase ICO independence and introduce charges for regulatory services.

This post was written by Nick Tyler and Cynthia O'Donoghue.

Last week the UK Government announced a package of measures focused on extending the scope of the Freedom of Information Act (FOIA) and strengthening the independence of the UK’s data protection and freedom of information regulator, the Information Commissioner’s Office (ICO).

The anticipated Freedom Bill (to be published in February 2011) will include proposals to extend the scope of FOIA to a number of organisations for the first time. The Government announced the definite inclusion of the Financial Ombudsman Service and has proposed including The Advertising Standards Authority, The Panel on Takeovers and Mergers, The Law Society, Bar Council and other approved regulators under the Legal Services Act 2007, subject to consultation. The UK Government aims to strengthen FOIA provisions to ensure the public sector proactively releases data to allow businesses, non-profit organisations and others to re-use the information for social and commercial purposes.

Another aim of the Freedom Bill is to enhance the independence of the ICO (including a greater role for Parliamentary oversight) by enabling the regulator, for the first time, to independently set charges for certain services. Sections 51(8) of the Data Protection Act and 47(4) of FOIA provide the ICO with the power to set charges for its services.

Having lain dormant we now expect these charging powers, including those under the Data Protection Act and Privacy and Electronic Communications Regulations, to be activated, allowing the ICO to provide chargeable services for, among other things:

  • audits and assessments of data protection good practice; and
  • privacy impact assessments.

Further information about the UK Government’s announcement, and the positive reaction of the ICO, can be found in the following links:

Regulatory Round Up 1.7.11