[Senate Hearing 111-127]
[From the U.S. Government Printing Office]
S. Hrg. 111-127
IMPROVING THE ABILITY OF INSPECTORS
GENERAL TO DETECT, PREVENT, AND
PROSECUTE CONTRACTING FRAUD
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HEARING
before the
AD HOC SUBCOMMITTEE ON CONTRACTING OVERSIGHT
of the
COMMITTEE ON
HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
APRIL 21, 2009
__________
Available via http://www.gpoaccess.gov/congress/index.html
Printed for the use of the Committee on Homeland Security
and Governmental Affairs
U.S. GOVERNMENT PRINTING OFFICE
50-387 WASHINGTON : 2009
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20402-0001
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
JOSEPH I. LIEBERMAN, Connecticut, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
DANIEL K. AKAKA, Hawaii TOM COBURN, Oklahoma
THOMAS R. CARPER, Delaware JOHN McCAIN, Arizona
MARK PRYOR, Arkansas GEORGE V. VOINOVICH, Ohio
MARY L. LANDRIEU, Louisiana JOHN ENSIGN, Nevada
CLAIRE McCASKILL, Missouri LINDSEY GRAHAM, South Carolina
JON TESTER, Montana
ROLAND W. BURRIS, Illinois
MICHAEL F. BENNET, Colorado
Michael L. Alexander, Staff Director
Brandon L. Milhorn, Minority Staff Director and Chief Counsel
Trina Driessnack Tyrer, Chief Clerk
AD HOC SUBCOMMITTEE ON CONTRACTING OVERSIGHT
CLAIRE McCASKILL, Chairman
CARL LEVIN, Michigan SUSAN M. COLLINS, Maine
THOMAS R. CARPER, Delaware TOM COBURN, Oklahoma
MARK L. PRYOR, Arkansas JOHN McCAIN, Arizona
JON TESTER, Montana LINDSEY GRAHAM, South Carolina
MICHAEL F. BENNET, Colorado
Margaret Daum, Staff Director
Molly Wilkinson, Minority Staff Director
Kelsey Stroud, Chief Clerk
C O N T E N T S
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Opening statements:
Page
Senator McCaskill............................................ 1
Senator Collins.............................................. 9
WITNESSES
Tuesday, April 21, 2009
Hon. Brian D. Miller, Inspector General, General Services
Administration................................................. 2
Richard L. Skinner, Inspector General, U.S. Department of
Homeland Security.............................................. 4
Charles W. Beardall, Deputy Inspector General for Investigations,
Department of Defense.......................................... 6
J. Anthony Ogden, Inspector General, U.S. Government Printing
Office, and Chairman of the Legislation Committee, Council of
the Inspectors General on Integrity and Efficiency............. 7
Alphabetical List of Witnesses
Beardall, Charles W.:
Testimony.................................................... 6
Prepared statement........................................... 53
Miller, Hon. Brian D.:
Testimony.................................................... 2
Prepared statement with an attachment........................ 29
Ogden, J. Anthony:
Testimony.................................................... 7
Prepared statement........................................... 65
Skinner, Richard L.:
Testimony.................................................... 4
Prepared statement........................................... 43
APPENDIX
Questions and responses submitted for the Record from:
Mr. Miller................................................... 77
Mr. Skinner.................................................. 86
Mr. Beardall................................................. 92
Mr. Ogden.................................................... 94
IMPROVING THE ABILITY OF INSPECTORS
GENERAL TO DETECT, PREVENT, AND
PROSECUTE CONTRACTING FRAUD
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TUESDAY, APRIL 21, 2009
U.S. Senate,
Ad Hoc Subcommittee on Contracting Oversight,
of the Committee on Homeland Security
and Governmental Affairs,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m., in
room SD-342, Dirksen Senate Office Building, Hon. Claire
McCaskill, Chairman of the Subcommittee, presiding.
Present: Senators McCaskill and Collins.
OPENING STATEMENT OF SENATOR MCCASKILL
Senator McCaskill. Good afternoon. The hearing will now
come to order. I want to welcome everyone to today's hearing.
It is the first hearing of the Subcommittee on Contracting
Oversight of the Homeland Security and Government Affairs
Committee. I am extremely honored to have the opportunity to
conduct this hearing and many others that will follow. This is
going to be about our concerted effort to identify the waste,
fraud, and abuse that has occurred in government contracting.
Last year, the Federal Government awarded $518 billion in
contracts. This year, that number will grow even higher due to
the hundreds of billions of dollars in stimulus money that will
be awarded through contracting. Even a very small percentage of
fraud costs taxpayers dearly. That is why we have chosen this
first hearing to look at the issue of fraud. It is talked about
a lot, but frankly, I think if all of us are really honest, we
probably don't get a lot of it.
I think the witnesses today understand the challenges that
we have in government in terms of rooting out fraud, and they
are numerous, and hopefully we will have a chance today to go
over them in some detail. After this hearing, the important
work then must begin, and that is continuing to put pressure on
all parts of the system to make sure that fraud is found and
that people are held accountable for that fraud. It does no
good to find it if nothing happens because if you find it and
nothing happens, that sends a big green light to the next bad
actor that they can take advantage of taxpayer money in a way
that is criminal.
So we are happy to start with contracting fraud. Obviously,
there are going to be many hearings of this Subcommittee that
will deal in many different aspects of the challenges we face
in government contracting, but today is about fraud.
Let me introduce our witnesses and ask for their testimony,
and then I will have a number of questions. I want to welcome
all four of you and I appreciate all of your work.
Brian Miller is the Inspector General for the General
Services Administration. He is also the Vice Chair of the
National Procurement Fraud Task Force and the Co-Chair with Mr.
Skinner of the National Procurement Fraud Task Force
Legislation Committee.
Richard Skinner is the Inspector General for the Department
of Homeland Security. He serves with Mr. Miller, as I said, as
the Co-Chair of that National Procurement Fraud Task Force.
Charles Beardall is the Deputy Inspector General for
Investigations at the Department of Defense. As the agency with
the lion's share of government contracting, you are going to
get a lot of attention in this Subcommittee, Mr. Beardall. The
Department of Defense also has the lion's share of contracting
fraud. I welcome your perspective on these issues.
Tony Ogden is the Inspector General of the U.S. Government
Printing Office. He is the Chair of the Legislation Committee
of the Council of Inspectors General on Integrity and
Efficiency.
It is the custom of this Subcommittee to swear in all
witnesses that appear before us, so if you don't mind, I would
like you all to stand. Raise your hands, please.
Do you swear that the testimony you will give before this
Subcommittee will be the truth, the whole truth, and nothing
but the truth, so help you, God?
Mr. Miller. I do.
Mr. Skinner. I do.
Mr. Beardall. I do.
Mr. Ogden. I do.
Senator McCaskill. Thank you all. We will ask you all to
try to hold your testimony to 5 minutes. Obviously, we will
include any of your written testimony in the record, and Mr.
Miller, let us begin with your testimony.
TESTIMONY OF HON. BRIAN D. MILLER,\1\ INSPECTOR GENERAL,
GENERAL SERVICES ADMINISTRATION
Mr. Miller. Good afternoon, Madam Chairman. Thank you for
inviting me here today and the opportunity to testify on these
important matters. I and my distinguished colleagues here today
would like to thank you for your strong support of Inspectors
General. We are especially honored to be part of the first
hearing of this Subcommittee.
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\1\ The prepared statement of Mr. Miller with an attachment appears
in the Appendix on page 29.
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The American Recovery and Reinvestment Act brings with it a
sharp mandate to move quickly in addressing our Nation's
economic problems. Doing so means that traditional oversight
may need to be modified. This afternoon, I would like to
highlight four new ideas that I believe will help expedite OIG
reviews and control fraud and criminal activity.
I call the first proposal ``Don't tip off the target.''
Basic investigative techniques include not tipping off a
subject about an investigation. Premature disclosure can lead
to destruction of evidence, intimidation of witnesses, or
flight. It can also preclude undercover work and provide an
opportunity for the subject to manipulate his finances to
frustrate the government's interests.
As an illustration, telling someone like Bernie Madoff that
he is under investigation would only give him an opportunity to
hide or transfer ill-gotten gains before the government had an
opportunity to understand the full extent and scope of his
crimes. Therefore, I ask that you treat Inspector General
subpoenas the same as Grand Jury subpoenas, which are exempt
from giving the subject notice when financial records are
sought.
Second, I propose that you require a simple report from OMB
regarding how many debarred companies and individuals are
currently receiving Federal grants and contracts. This can be
done by a cross-check of the Excluded Parties List System
(EPLS), and USASpending.gov, which contains all of the Federal
grants and contracts. Generally, one would not expect to find
the same companies or individuals on both USASpending.gov and
EPLS. These reports would highlight the critical need to fully
check on the status of contractors and grantees before the
government does business with them.
My third proposal is in response to the decision by the
U.S. Court of Appeals for the D.C. Circuit in the case of
United States v. Safavian. The D.C. Circuit held that Federal
employees have no legal duty to disclose all material facts
when they provide information in response to a direct question
from an OIG special agent. In the absence of such a legal duty,
Mr. Safavian could not be convicted criminally of concealing
information when he provided half-truths to a special agent,
intending to mislead the special agent. To correct this, we
propose legislation that would clarify that Federal employees
have a duty to tell the whole truth, not half-truths, to
special agents.
My fourth proposal is to restore the contract clause that
allowed GSA Office of Inspector General to do defective pricing
reviews when they conduct post-award audits. Essentially, the
regulations currently provide that we cannot look at pricing
after the contract is signed under GSA contract terms. So if no
pre-award review is done of pricing, the contractor gets a free
pass audit-wise from any look at whether their pricing
information was defective. Two qui tam lawsuits show that we
need to have post-award audit rights. One case settled for
$98.5 million and the other case settled for $128 million, both
for defective pricing. The irony is that my office does not
have audit authority under GSA contracts to audit for these
very issues, these defective pricing issues, when we conduct a
post-award audit, and we ask the Subcommittee to consider
correcting this.
Thank you for your attention. I ask that my statement and
material records be made part of the record. I would be pleased
to respond to any questions that you may have. Thank you.
Senator McCaskill. Thank you very much. Mr. Skinner.
TESTIMONY OF RICHARD L. SKINNER,\1\ INSPECTOR GENERAL, U.S.
DEPARTMENT OF HOMELAND SECURITY
Mr. Skinner. Thank you, Madam Chairman, and good afternoon.
I appreciate the opportunity to be here today.
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\1\ The prepared statement of Mr. Skinner appears in the Appendix
on page 43.
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I want to begin by thanking you for your leadership,
ensuring that American taxpayers are receiving the biggest bang
for their dollar in government contracts and for the support
you have shown the Inspector General community. I also applaud
the creation of this Subcommittee. The American taxpayer is
demanding and deserves to know how its tax dollars are being
spent and that they are being spent wisely. The work of this
Subcommittee can go a long way to bringing accountability to
the management of Federal contracts. We in the Inspector
General community look forward to working with you in this
endeavor.
Finally, I wish to commend the Department of Justice and
the IG community for their hard work on the National
Procurement Task Force. As my colleague, Brian Miller, already
pointed out in his testimony, much was accomplished as a result
of their hard work. But our work is not done. We are in the
first mile of a marathon. There is still an array of
legislative proposals that were considered by the Task Force
but did not make it into legislation or regulation.
Two proposals in particular, I believe, could go a long way
in improving the ability of Inspector Generals to detect,
prevent, and prosecute contract fraud. The first proposal deals
with IG access to contractor and subcontractor records and
employees. One can argue that access rights are implicit in the
IG Act, yet in reality, this is not the case. We are
continually being challenged by contractors, causing undue and
prolonged delays in our ability to carry out our audits and
inspections.
This problem was recognized by Congress, I believe, when it
enacted the Recovery Act of 2009. The Act gave IGs explicit
access rights to contractor employees and records and access
rights to subcontractor records. Unfortunately, for some
unexplained reason, the legislation did not give IGs access
rights to subcontractor employees. In my opinion, this simply
does not make sense, especially when you consider that many
government contractors rely heavily on subcontractors to meet
their contractual obligations.
For example, after Hurricane Katrina, FEMA awarded four
major contracts valued at over $2 billion to help with response
efforts. These four contractors then subcontracted 63 percent
of their work to subcontractors. Under the Recovery Act, we
would not have legislative authority to interview subcontractor
employees during the course of our audits or inspections. To do
our jobs effectively, IGs should be authorized to interview
subcontractor employees regarding all transactions involving
taxpayer money.
The second proposal deals with the IG's ability to match
computer data being maintained by Federal, State, and local
government agencies. The Computer Matching and Privacy
Protection Act set forth procedural requirements that agencies
must follow when matching electronic databases for the purpose
of establishing Federal benefit eligibility, verifying
compliance with benefit program requirements, or recovering
improper payments under a benefit program. The procedural
requirements include formal matching arrangements between the
agencies, notice in the Federal Register of the agreements
before any matching could occur, and review of the agreements
by data integrity boards at both agencies. While the Computer
Matching Act provides certain exemptions for statistical
matches, matches for research purposes, and law enforcement if
a specific target of an investigation has been identified,
agency decisionmakers and data owners rarely consider OIG
oversight--its work to fall under any of the exemptions.
Interagency sharing of information about individuals can be
an important tool in improving the integrity and efficiency of
government programs. By sharing data, agencies can often reduce
errors, improve program efficiency, identify and prevent fraud,
evaluate program performance, and reduce the information
collection burden of the public by using information already
within government databases.
The work in the IG community in identifying management
control weaknesses, which is our primary objective here, within
agency program activities would be facilitated by permitting
IGs as part of their regular audits and inspections to match
computer databases being maintained by Federal, State, and
local government agencies. Because IGs rarely control the
databases to be matched, valuable time and resources are lost
persuading system managers that matching is appropriate and
necessary for us to do our job.
Finally, I would like to comment briefly on the issue of
Federal Acquisition Workforce shortcomings. Madam Chairman, as
you stated in your March 19 open letter to the acquisition
community, the contracting workforce is no longer adequate to
handle the volume and complexity of the workload.
In response to these concerns, acquisition shops throughout
the government have begun to implement two statutory hiring
flexibilities to assist in recruiting acquisition-related
positions: Direct hire authority and reemployed annuitant
authority. These authorities expedite the hiring process and
make it easier to hire qualified candidates. Overall, according
to a recent GAO report, these initiatives are beginning to show
some preliminary results. Just as agency procurement officers
across government face a shortage of experienced staff, so do
we in the IG community. To be effective, we need a mix of
auditors, inspectors, investigators with acquisition
experience. It would be extremely helpful as we continue to add
experienced acquisition professionals to our staffs if those
same statutory hiring authorities were expanded to the IG.
Madam Chairman, that concludes my statement, and again,
thank you for this opportunity to share my thoughts with you
today.
Senator McCaskill. Thank you. Mr. Beardall.
TESTIMONY OF CHARLES W. BEARDALL,\1\ DEPUTY INSPECTOR GENERAL
FOR INVESTIGATIONS, DEPARTMENT OF DEFENSE
Mr. Beardall. Good afternoon, Chairman McCaskill. Thank you
for inviting me to appear before you to discuss the important
issue of procurement fraud. I am here representing Acting
Inspector General Gordon Heddell and the women and men of the
Office of the Inspector General Department of Defense,
including the special agents of the Defense Criminal
Investigative Service, the law enforcement arm of the DOD
Inspector General.
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\1\ The prepared statement of Mr. Beardall appears in the Appendix
on page 53.
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DCIS was established in 1981 in response to the Defense
contracting scandals of the 1970s and 1980s. From its start as
an office of seven special agents, DCIS has grown to 366
agents. Initially, DCIS special agents focused almost
exclusively on combatting fraud and corruption. However, as the
organization matured, its priorities expanded. DCIS's current
top priorities include investigations of contract fraud,
corruption, terrorism, illegal diversion and theft of sensitive
technologies and weapons, and the protection of the Global
Information Grid.
Although its mission has expanded significantly, DCIS has
remained true to its roots. Today, 61 percent of over 1,800
DCIS active investigations involve DOD contracting. Cases in
which DCIS has led or participated in have recouped $14.67
billion for the U.S. Government. Clearly relevant to today's
discussion, $9.9 billion of those recoveries have occurred
within the last 10 years.
DCIS has an ever-increasing workload. Implementation of
critical initiatives related to the Global War on Terrorism and
technology protection has reduced our ability to devote
additional resources to fraud and corruption. Further, since
September 11, 2001, and the beginning of Operations Enduring
Freedom and Iraqi Freedom, DCIS's law enforcement partners in
combatting procurement fraud have had to divert significant
resources to competing priorities, such as terrorism, force
protection, and counterintelligence.
During the past 8 fiscal years, DOD contracting increased
more than 250 percent, while the numbers of DCIS special agents
has grown 13 percent. During the past 5 fiscal years,
investigations involving financial crimes increased 35 percent,
kickbacks increased 66 percent, and bribery increased an
astounding 209 percent.
Recent increases in contract fraud and corruption
investigations are largely the result of overseas contingency
operations. To date, DCIS has initiated 173 Global War on
Terrorism contract-related investigations. Of these, 41 percent
involve procurement fraud and 42 percent involve corruption.
DCIS is a key participant in various procurement fraud task
forces and working groups, which have proven to be effective
alliances to combat contract fraud. The multi-disciplinary,
multi-agency National Procurement Fraud Task Force has been
extremely effective in fostering communication and better
coordination to combat procurement fraud. Worthy of special
mention, its offshoot, the International Contract Corruption
Task Force, was formed to target contract fraud and corruption
in Southwest Asia. Consisting of nine agencies, the Task Force
is a model of law enforcement cooperation.
The recommendations in the Legislative and Regulatory
Reform Proposals, the White Paper, will significantly enhance
the government's ability to combat procurement fraud. The DOD
Inspector General strongly supports improving contractors'
internal oversight and ethics programs to enhance the
government's ability to prevent and detect fraud. Requiring
contractors to implement internal compliance programs before a
contract is awarded will help prevent fraud.
The DOD IG also supports recommendations to expand the
authority of Inspectors General to include enhanced subpoena
authority. We also support establishing a national database to
determine contractors' suspension or debarment history, and we
favor extending criminal conflict of interest provisions to
contractors.
In response to a recent amendment to the Federal
Acquisition Regulation imposing mandatory self-reporting, the
DOD IG has established the DOD Contractor Disclosure Program to
process the disclosures. We believe this requirement will
improve the Department's oversight capabilities.
While the White Paper identifies significant improvements,
we hope to work with the Legislation Committee on more
proposals. Two examples derived from the new FAR cases relate
to the American Recovery and Reinvestment Act of 2009. One
would expand whistleblower protections to subcontractors and
the other would enhance contractor reporting requirements. As
Congress considers the recommendations of the Legislation
Committee, it is critical that IG resource requirements be
considered. Adequate numbers of investigators and auditors are
indispensable, particularly in an era of massive growth in
contacting and diversification into other national priorities.
I hope my testimony today has been helpful and I look
forward to your questions.
Senator McCaskill. Thank you very much. Mr. Ogden.
TESTIMONY OF J. ANTHONY OGDEN,\1\ INSPECTOR GENERAL, U.S.
GOVERNMENT PRINTING OFFICE, AND CHAIRMAN OF THE LEGISLATION
COMMITTEE, COUNCIL TO THE INSPECTORS GENERAL ON INTEGRITY AND
EFFICIENCY
Mr. Ogden. Good afternoon, Madam Chairman. Thank you for
inviting me to testify on the role of the Inspectors General in
detecting, preventing, and helping prosecute contracting fraud.
While I am the Inspector General at the U.S. Government
Printing Office, I am here today representing the Council of
the Inspectors General on Integrity and Efficiency in my
capacity as the Chairman of the Legislation Committee.
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\1\ The prepared statement of Mr. Ogden appears in the Appendix on
page 65.
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On behalf of the Council, I would like to echo our
appreciation to you for your unwavering support of the IG
community and congratulate you on being the first Senator to
lead this new Subcommittee on Contracting Oversight. We look
forward to working with you.
Senator McCaskill. Thank you.
Mr. Ogden. My testimony today will focus on the general
views of the IG community regarding the major recommendation
proposed by the Legislative Committee of the National
Procurement Fraud Task Force in their White Paper.
We are happy to report that some significant
recommendations proposed by the Task Force have already been
enacted. For example, in November 2008, the Federal Acquisition
Regulation Council issued a final rule that imposes, among
other things, a mandatory requirement on Federal contractors to
disclose credible evidence of certain criminal violations and
civil False Claims Act violations, and to establish an ethics
and internal control program.
The IG Reform Act of 2008 also included several changes
recommended by the Task Force. For example, the IG subpoena
authority language was amended to clarify that its reach
includes information and data in any medium. In addition, the
Reform Act granted to IGs from designated Federal entities the
authority to use the Program Fraud Civil Remedies Act. However,
IGs from Legislative Branch entities are still excluded.
Although these changes are encouraging, many other Task
Force recommendations have not been acted upon. To gauge the
support of the IG community for some of the remaining
recommendations, the Council through the Legislation Committee
conducted an online survey of its members. Our survey covered
three general Task Force recommendation areas: One, the
Inspector General subpoenas for compelled interviews; two,
reform of the Program Fraud Civil Remedies Act; and three,
other general recommendations, including establishing a
National Procurement Fraud database and allowing the use of
Social Security numbers to identify individuals in the Excluded
Parties List System (EPLS).
The Task Force proposed that IG subpoena authority include
the authority to compel witnesses to appear at interviews in
connection with OIG investigations, audits, and other reviews.
You have heard some of that testimony already. This proposal is
similar to recent limited authority provided to some IGs under
the American Recovery and Reinvestment Act. The proposed
subpoena authority would not include the power to compel
witness testimony.
The survey results show overwhelming support for this
enhanced IG subpoena authority for all IGs. The issue is about
access. Supporters cite the need to have access to contractor
employees, former employees, third-party subcontractors, to
discuss aspects of civil or criminal investigations still in
development. In addition, this authority is necessary to be
able to ask questions regarding voluminous records that
companies serve in response to a subpoena.
In 1986, Congress enacted the Program Fraud Civil Remedies
Act to enable agencies to recovery losses resulting from false
claims and statements where the claims are $150,000 or less.
Our survey focused on the major Task Force recommendations
regarding the use of PFCRA authority, the increase of
jurisdictional and civil liability amounts, agency retention of
recoveries, and the revamping of procedural requirements. There
was overwhelming support for these recommendations, and in the
interest of time, I will defer discussion to questions.
The Task Force also recommended specific areas to generally
prevent and detect procurement fraud. The Task Force
recommended the creation of a National Procurement Fraud
Background Check System, the Procurement Inquiry Check System
(PICS), which would be used by Federal, State, and local
procurement officials prior to authorization of contract
actions involving Federal funds. The PICS database would
include information on debarred or suspended contractors from
all participating Federal, State, and local government entities
engaged in procurement and non-procurement activities where
Federal funds are at use.
Again, more than 90 percent of the responding IGs supported
the idea of a National Procurement Fraud database. However,
many respondents suggested that it would be more efficient and
cost effective for PICS to be an expanded version of the EPLS,
given that the EPLS is a mandatory database and could be
upgraded to include links to State and local government online
databases on suspended and debarred contractors.
The Task Force also recommended the use of Social Security
numbers to enable agencies to properly identify individuals who
have been debarred or suspended in the EPLS. While there was
support for this proposal, there was substantial opposition
generally focused on the privacy concerns with the use of
Social Security numbers, which is also bolstered by the
requirements of OMB Memo 716, which requires that agencies
reduce the use of Social Security numbers and explore
alternatives.
Finally, some survey respondents suggested other
recommendations to combat procurement fraud. Let me identify
briefly two of those. First, some recommended that a Federal
contractor be required to certify that he or she has no
knowledge of any convictions of civil or criminal fraud for
owners, officers, or managers involved in the contract, with no
time limit on the convictions or civil fraud judgments.
And second, survey respondents noted that the FAR does not
apply to Legislative Branch agencies. Because Legislative
Branch agencies operate under different acquisition
regulations, consideration should be given to require
Legislative Branch agencies to adopt in their acquisition
regulations the FAR provisions related to the prevention and
detection of procurement fraud.
This concludes my testimony and I have submitted written
comments for the record. I would be pleased to address any
questions you may have, and thank you again for the opportunity
to testify before the Subcommittee.
Senator McCaskill. Thank you, Mr. Ogden.
We have been joined by the Ranking Member of the Homeland
Security and Government Affairs Committee. Would you like an
opportunity to speak now? We just finished testimony.
OPENING STATEMENT OF SENATOR COLLINS
Senator Collins. Thank you, Madam Chairman. That sounds
good to you, doesn't it?
Senator McCaskill. It does.
Senator Collins. I would welcome the opportunity to make
just a few comments, and I will put my full statement into the
record.
First, let me commend you for taking over the charge of
this Subcommittee. There is no one in the Congress who has a
better understanding of Federal contracting of auditing issues
than you do. I am certain that we will be able to accomplish a
great deal. In fact, a group of our colleagues were talking
just the other night that your auditing background is so useful
to this Subcommittee, so I thank you for your leadership.
The Inspectors General are vital partners in our effort to
identify inefficient, ineffective, and improper government
programs. By leveraging the expertise and the independence of
the Inspectors General, Congress has been able to better
identify, and in some cases take action to stop wasteful
spending. It also helps us by giving us recommendations which
shape legislation and oversight activities. As General Skinner
knows, we have worked very closely together on some of the FEMA
reforms and the anti-waste, fraud, and abuse legislation for
the Department of Homeland Security.
In the last Congress, working with the Chairman as well as
with Senators Lieberman and Levin, our Committee was able to
pass important reforms to the Federal contracting process as
well as to strengthen our Nation's IGs.
I mention those two separate bills together because the
contracting reforms we successfully enacted were based in part
on the recommendations of the IGs.
The most recent report of the President's Council on
Integrity and Efficiency provides some insight into the
effectiveness of the IG community, and I will put the list of
statistics into the record. But suffice it to say that the IGs
have identified $11.4 billion in potential savings from their
audit recommendations.
[The information of Senator Collins follows:]
L$11.4 billion in potential savings from audit
recommendations;
L$5.1 billion in investigative recoveries;
L6,800 indictments;
L8,900 successful prosecutions;
L4,300 suspensions or debarments; and
Lthe processing of nearly 310,000 hotline
complaints.
We do need to make sure, however, that we are constantly
updating the laws to ensure that the IGs have the tools that
they need. It was more than 30 years ago when the IG Act was
first passed in 1978. I believe the legislation which we
authored last year and which Chairman McCaskill was the chief
proponent of improves the independence and the effectiveness of
the IGs. But I recognize that the White Paper produced by the
National Procurement Fraud Task Force provides additional
proposals for us to consider.
Finally, I want to note that two of our witnesses have
proposed an additional effort that I believe is desperately
needed to improve our government's acquisition programs, and
that is a well-trained, properly resourced acquisition
workforce. No matter how good the reforms, no matter how strong
the law, if you don't have well-qualified and a sufficient
number of acquisition personnel to administer the laws, we are
not going to make a difference.
So again, I thank the Chairman for convening this hearing
and I apologize for being late. I was giving a speech,
unfortunately.
[The prepared statement of Senator Collins follows:]
PREPARED STATEMENT OF SENATOR COLLINS
The Inspectors General are vital partners in Congress's effort to
identify inefficient, ineffective, and improper government programs. By
leveraging the expertise and independence of Inspectors General and
their staffs, Congress has been able to identify, and take action to
stop, wasteful spending.
The investigations and reports of IGs throughout the government
also help Congress shape legislation and oversight activities--
improving government performance, providing important transparency, and
giving Americans better value for their tax dollar.
Last Congress, working with Senators Lieberman, McCaskill, and
Levin, our Committee was able to pass important reforms to the Federal
contracting process and to strengthen our Nation's IGs.
I mention these two separate bills together because the contracting
reforms we successfully enacted were based, in part, on the
recommendations of our Nation's Inspectors General. Moreover, the
reforms themselves will be amplified by the indispensible efforts of
IGs.
The most recent report of the President's Council on Integrity and
Efficiency provides some insight into the effectiveness of the
Inspector General community. In fiscal year 2007, IG efforts resulted
in:
$11.4 billion in potential savings from audit
recommendations;
$5.1 billion in investigative recoveries;
6,800 indictments;
8,900 successful prosecutions;
4,300 suspensions or debarments; and
the processing of nearly 310,000 hotline complaints.
More than 30 years after the Inspector General Act was passed in
1978, the Inspector General Reform Act of 2008 improves the
independence and effectiveness of Inspectors General and contributes to
better relations among the IGs, the agencies they serve, and the
Congress. The Act helps to insulate and protect Inspectors General from
inappropriate efforts to hinder their investigations and preserves
their independence. Finally, the law explicitly mandates that IG
appointments be made on the basis of ability and integrity, not
political affiliation.
The white paper produced by the National Procurement Fraud Task
Force provides additional proposals for us to consider.
I also note that two of our witnesses have proposed an additional
effort desperately needed to improve our government's acquisition
programs--a well-trained, properly resourced acquisition workforce.
These personnel reforms are important for the proper execution of
government contracts. But a well-trained group of acquisition personnel
can also help our IGs identify and audit inefficient or ineffective
procurement programs.
I look forward to hearing from all our witnesses regarding their
proposals for reform.
Senator McCaskill. Thank you, Senator Collins. And speaking
of champions, no one has been a more aggressive champion on
acquisition workforce issues than Senator Collins. I have had
the pleasure of working with her on some of those issues, but
she has been at it for many years before I got here. And
clearly, not only IG personnel but acquisition workforce is a
one-two punch that is going to be needed to do the kind of job
that we all know we need to do in this area of fraud.
Let me start by asking each one of you to try to
prioritize. As a former auditor understanding performance
auditing, I would like to begin with a challenge to the
Subcommittee to try to keep track of our metrics, and that is
at each hearing try to walk away with a list of things that we
need to try to get done, either through the Homeland Security
and Governmental Affairs Committee or other places as it
relates to what we learn in these hearings. I am going to try
to keep track of this list so we can be publicly accountable
for it.
And the list I would like to come out with at this hearing
is each of you to name the one thing that you think could make
a meaningful difference in how many bad guys we could catch,
the one tool that you don't have now. If you could only pick
one, what would that one tool be that you would add to your
tool chest to do a better job in finding people who are ripping
off our government? Mr. Miller.
Mr. Miller. Thank you, Madam Chairman. That is a difficult
question because there are so many tools that could help us in
our jobs. I think, of all the proposals, and there are many
very good proposals here, I think the one tool that could help
us immediately is what I call the ``don't tip off the target''
proposal, that is, getting financial records without tipping
off the owner of the financial records. That puts IG subpoenas
on parity with Grand Jury subpoenas in that respect. It will
allow us to quickly investigate without having to go around--we
can plan our investigations better. We don't have to plan to go
around contacting the subject or going overt, so to speak. And
we can better plan and move quickly and have a rapid response
to investigating fraud. So that is the one proposal I would
choose. Thank you.
Senator McCaskill. I will come back and follow up on that.
Mr. Miller. OK.
Senator McCaskill. So you want to make sure that you don't
have to tell them ahead of time you are coming after them.
Mr. Miller. That is right.
Senator McCaskill. OK.
Mr. Miller. Thank you.
Senator McCaskill. That makes perfect sense to me. Mr.
Skinner.
Mr. Skinner. As I stated in my testimony, I think the one
thing that would really help us and other IGs is the ability to
do electronic computer matching.
Senator McCaskill. Computer matching for you?
Mr. Skinner. Yes.
Senator McCaskill. OK. Mr. Beardall.
Mr. Beardall. Well, as is probably evident from my written
and my oral testimony, more agents. I would also probably say
more auditors and more agents, but certainly with the
challenges we face in the Department of Defense, 366 agents
spreads very thin. I am heartened by certain recent
pronouncements by the Secretary of Defense, including the fact
that he is going to up DCAA by 600 auditors. Of course, the 600
auditors are probably going to bring us a whole lot more
business, I would hope. So I think mainly the challenge for us
is enough resourcing to do the job in view of today's massive
spending.
Senator McCaskill. I heard Secretary Gates say the magic
words of DCAA auditors and I heard him say acquisition
personnel. I don't remember him saying anything about DCIS.
Mr. Beardall. No. He didn't.
Senator McCaskill. OK.
Mr. Beardall. And that is one of the points. And again, the
point is accurate. Not only the auditors, but contracting
officials, as well. We faced that problem a lot in Southwest
Asia, seeing folks who were not prepared to undertake the
duties of contracting officers.
Senator McCaskill. OK. Mr. Ogden.
Mr. Ogden. I think that based on the survey results, and
again, my responses here today are limited to the survey
results, clearly, it was the expansion of the subpoena
authority to be able to compel access to contractors and
subcontractors. It is to compel--to summarize one of the
comments, it is perhaps the single most important change that
we seek. It is very important for those of us who do a
significant amount of oversight work that involves third
parties. But it really is about access.
There was some confusion in the National Procurement Fraud
Task Force White Paper about the issue about compelling
interviews or compelling testimony, but it is about compelling
attendance at an interview, and I think that Mr. Skinner
identified that issue very poignantly, as well.
Senator McCaskill. That brings me to one of the things that
I think we are struggling with here, is what are you? I think
that some people in government see you as someone who is
causing trouble for the head of the agency, and I am not sure
enough people in government see you as someone who should have
the same authority as any other law enforcement entity. You are
tasked with finding crime as part of your job. Can anyone help
me figure out where we are getting this push-back? Why is it
that they are asking you to tip off subjects of an
investigation with that much notice as it relates to their
financial documents? Where do we need to drill down to find
people in government that are pushing back in terms of giving
you all the subpoena authority and the basic law enforcement
protocols that are going to allow you to catch criminals?
Mr. Miller. Madam Chairman, if I could try and respond, I
think it is a historical quirk. I think that the Right to
Financial Privacy Act was enacted over 30 years ago at the same
time as the Inspector General Act, 1978, and I don't think
there was a whole lot of thought that went into the requirement
of requiring IGs to give notice but not--IGs when they issue IG
subpoenas but not prosecutors on the issue of Grand Jury
subpoenas.
I think at that time, what the Congress knew and was
familiar with was the Grand Jury subpoena, so they naturally
exempted Grand Jury subpoenas. I think it just didn't occur. I
think it was an historical quirk that they didn't also exempt
IG subpoenas. That is my speculation as to what the problem is.
Senator McCaskill. Does anyone else want to speculate on
why we have difficulty with this? How about compelling
interviews? Mr. Ogden, do you want to take a shot at that? Why
is it that people are so unnerved about the idea that an IG
ought to be able to compel an interview?
Mr. Ogden. Well, and again, I might defer to Mr. Skinner to
address this more specifically since he and Mr. Miller have had
more experience in the area of where this issue has arisen.
They can share some more specific examples with you. But I
think that under the circumstances, it is how far do we want to
let the IGs go? The ability some would perceive giving that
much authority to IGs would be overstepping the bounds of the
IGs, but I believe that the community would agree with you
wholeheartedly, Senator McCaskill, that under the
circumstances, we need to have the same tools. We need to have
the ability to be able to go and reach out to those
subcontractors.
One of the issues that I know that has occurred within my
agency and other agencies, as well, is when you have
contractors and subcontractors, if we don't have the same
access as we would with our own employees within our agency, it
does prevent us from being able to do our jobs effectively. The
contracting workforce has expanded significantly since many of
these laws and rules were put in place. So in order to kind of
catch up with the time, we have to look at the entire scope of
the issue and realize that the reach now for IGs has to be to
contractors and subcontractors.
Senator McCaskill. Thank you very much. Senator Collins.
Senator Collins. Thank you, Madam Chairman.
Mr. Skinner, I want to follow up on your answer to the
Chairman about the need to do more computer matching. As I
understand it, under the Computer Matching and Privacy
Protection Act of 1988, Federal agencies must follow a number
of procedures prior to matching electronic databases, and those
include entering into a formal matching agreement, noticing
that agreement in the Federal Register, obtaining a review of
the agreement by the Data Integrity Boards at both agencies.
Now, a lot of these steps are intended to be safeguards to
prevent misuse of electronic records. But according to the Task
Force Legislation Committee, those computer matching
requirements limit the IGs' ability to detect contracting fraud
in an expeditious manner because of all the steps that are
required.
Is there also an issue where the IGs have to persuade
multiple agency managers that the process should proceed? Are
there delays involved that impede your ability to detect fraud?
Mr. Skinner. Absolutely, and therein lies the problem. We
agree with the safeguards that are in the Computer Matching and
Privacy Protection Act. That is not the issue. There are
exemptions to that Act, for example, to do research, to garner
statistics, and for law enforcement if you have a target. With
the IG, it would enhance our ability if we were included in one
of those exemptions as part of our oversight role so that we
could do computer matching, so then in turn demonstrate to the
departments and the respective departments that you have weak
internal controls. And we can demonstrate to them that they can
improve their internal controls, be more efficient, and prevent
fraud up front before it occurs.
At the same time, when we do this computer matching, of
course, some of the collateral fallout is we will identify
cases of fraud. For example, when we did--GAO did computer
matching after Hurricane Katrina with VA and small businesses,
we identified people were self-certifying that they were
disabled vets when, in fact, they were not. As a result, they
got over $10 million in contracts and excluded qualified small
businesses in that process. There were other areas, as well,
with the HUD, for example. We demonstrated that you need to
have these types of computer matching agreements in place ahead
of--at all times if you are operating a benefit program, and
DHS operates many benefit programs, so that you can protect
yourself.
When we asked for this authority, yes, there were delays.
For example, to be able to match HUD housing data with FEMA
housing data, it took us almost a year. By then, millions and
millions of dollars were already out the door, and it is very
difficult to get that money back once it leaves. Had those
controls been in place beforehand, we could have stopped that.
Senator Collins. I think that is an excellent point.
Mr. Ogden, do you have anything to add to that?
Mr. Ogden. Senator Collins, not with respect to the
computer matching specifically. I think that Mr. Skinner has
really summed up the issue directly.
I can add on behalf of the IG community, we have submitted
comments and certainly support--I mean, I can represent on
behalf of the IG community that we support the proposal.
Senator Collins. At a hearing that our full Committee had
to look at the stimulus legislation and procedures to prevent
waste, fraud, and abuse, there was discussion about the hiring
needs of those entities that have gotten sufficient increases
in their budgets, such as the IGs and the GAO and the Special
Oversight Board, and the Acting Comptroller General told us
that GAO is currently permitted to compensate a returning
annuitant without offsetting the annuity. In other words, you
could hire a retired GAO auditor to come back and work for the
next year on stimulus oversight without there being a financial
penalty paid.
GAO has this authority. I believe DOD has this authority.
But most departments and agencies in the Federal Government do
not. I have introduced a bipartisan bill with Senator Herb Kohl
and Senator Voinovich that would seek to provide that authority
across government, particularly to help out with a situation
like this where we need trained people quickly, and you have
got this retired workforce that would be willing to come back
and help if there were not a financial penalty.
Starting with you, Mr. Miller, and going across, do you
support legislation to give that authority?
Mr. Miller. I strongly support that legislation. That would
help us respond rapidly and provide the oversight we need, so
thank you for introducing it.
Senator Collins. Thank you. Mr. Skinner.
Mr. Skinner. Yes, I would, and as I said in my opening
remarks, this is one of the things that we were asking for.
Some of the departments--right now in the field of acquisition
management, there are authorities out there. They just need to
be invoked. And I believe that OPM did, in fact, say
acquisition--those associated with acquisition management can
use these authorities, and they defined who those people are.
What they excluded were the auditors and investigators. And
that is something I think that legislation would be very
helpful, to give us that authority, as well, especially now in
this time and age.
Senator Collins. Exactly. It doesn't make sense to carve
out investigators and auditors.
Mr. Beardall, am I correct that DOD has this authority?
Mr. Beardall. Yes, we do, and we have used it very
effectively, as you point out. When you have an agent with 25
years of experience and who retires and you can bring him back
in a lot of cases just as a special agent rather than hire
someone new and I have senior managers who go out and still
have years left before they hit the mandatory retirement age of
57. They can come back and help us. We have actually recently
had the head of our operations in Southwest Asia as a rehired
annuitant who was one of our Assistant Special Agents in
Charge. We did a fabulous job.
Senator Collins. Thank you for that example. Mr. Ogden.
Mr. Ogden. Senator Collins, your bill, S. 629, I believe is
what it is, today we actually, lo and behold, had a meeting of
all the Inspectors General and I raised the issue of S. 629 and
I can say here today I have been given authorization to say
there was wholesale support for S. 629 and there was absolutely
no objection in the room. There is tremendous support from the
community for----
Senator Collins. Excellent. I am really happy to hear that.
I, believe it or not, did not know that in advance of asking
the question today. If you would be willing to send a letter to
the Subcommittee to that effect to follow up, that would be
wonderful.
Mr. Ogden. We would be happy to do so.
Senator Collins. Thank you.
Senator McCaskill. Thank you, Senator Collins.
Let us talk a little bit about the Department of Justice.
It is my understanding that Justice has expressed concerns
about expanding the IG authority as it relates to compelling
interviews, and let me make clear that I understand that GAO
now has that authority, correct? GAO now has the authority to
interview both contractor and subcontractor employees in terms
of interviews?
Mr. Skinner. GAO has the authority to have access to
records and employees at the contractor and subcontractor
level. I am not clear--you may want to talk to GAO--I am not
clear whether they have subpoena authority.
Senator McCaskill. OK. But they have the ability to, in
fact, interview at the contractor and subcontractor level?
Mr. Skinner. That is correct.
Senator McCaskill. OK. And it is my understanding that in
the stimulus bill, we also gave limited power to compel
interviews for audits and investigations concerning the
stimulus funds, correct?
Mr. Skinner. Under the stimulus bill, the IGs have access
rights to contractor records and employees and subcontractor
records----
Senator McCaskill. But not subcontractor employees?
Mr. Skinner. For whatever reason, I don't know why, that
was left out. And the FAR then emphasized that the authority
does not go to sub-grantees, the recently-published FAR.
Mr. Ogden. Senator McCaskill, if I might just dovetail on
that response, as well, under Section 1515(a) of the American
Recovery and Reinvestment Act, it provides to interview any
officer and employee of the contractor grantee, sub-grantee, or
agency. It does not go, as Mr. Skinner has pointed out, to
subcontractors.
The other issue, it only applies to the IGs that are
affected by the stimulus package----
Senator McCaskill. Right.
Mr. Ogden [continuing]. So there are 28 IGs and there are
68 of us in the community. So there is a significant exclusion
of IGs that do not have that particular----
Senator McCaskill. And that is what I am trying to figure
out. It is almost like we are saying it is more important to
catch crooks in the stimulus money than it is to catch crooks
anywhere else?
Mr. Skinner. Exactly.
Senator McCaskill. I mean, to me, common sense is on a
vacation. We had the chance to fix it in that stimulus bill. We
should have made it government-wide. Obviously, if there is not
an objection to using these tools in the stimulus funds for
some IGs, I don't understand why there should be objection by
Justice or anyone else using it----
Mr. Skinner. I don't believe anyone is objecting to the
rights of access. I would like to believe it was just an
oversight in the stimulus bill. Also GAO obtained access right
authority through the defense authorization bill, which is
somewhat different than the issue of compelled testimony or
issuing subpoenas. IGs have the authority to issue subpoenas
for documents, but we cannot issue subpoenas for testimony of
employees--testimonial evidence. That is one of the things we
were asking for, as well. If we can issue subpoenas for
documents, we should have the authority to issue administrative
subpoenas----
Senator McCaskill. So you can't make anybody talk to you?
Mr. Skinner. With pressure. It takes time. [Laughter.]
Senator McCaskill. Like if somebody just says, ``I am not
going to talk to you''--if you have got a contractor and you
want to talk to them about a contract in FEMA and they just
say, ``I don't want to talk to you,'' you are done unless you
go to Justice and get them to issue a subpoena?
Mr. Skinner. That is correct. It is very difficult. Our
hands are tied.
Senator McCaskill. And how often do you get those refusals?
Mr. Skinner. It has happened to me, since I have been IG,
in our audit of the Coast Guard Deepwater program, for example.
Senator McCaskill. All right.
Mr. Skinner. We asked for records. It took us months to get
those records because our authority was challenged. The
contractor challenged our authority to ask for those records.
Then we asked to talk to employees to help explain what was in
those records and the contractor would not give us access. We
had to delay the audit for over a year while we negotiated
access to the employees. Then when they did give us access,
they said the supervisor must be present, the attorneys must be
present, and others, and obviously that sends a chilling effect
on our relationship with that employee, so therefore we did not
interview the employees.
Senator McCaskill. Yes, go ahead.
Mr. Beardall. To take it a step further, we also would like
to have subcontractors have whistleblower protection.
Senator McCaskill. Right.
Mr. Beardall. The Recovery Act provides for that, but
otherwise, it is not available to subcontractors in
investigations. And again, a recent example, we had a
subcontractor who was willing to talk to us, so we didn't have
to compel anything, but when she found out that as a
subcontractor rather than a prime contractor she was not
afforded whistleblower protections, she refused to talk to us.
Fortunately, we were able to convince her to do her duty and
got the information, but that is a no-brainer.
Senator McCaskill. It makes no sense.
Mr. Beardall. No, ma'am.
Senator McCaskill. Absolutely no sense whatsoever.
On the Deepwater contract that you struggled with, I am
familiar that the National Reconnaissance Office (NRO) has
included some contract language now, and I don't know how
familiar all of you are with this, but the contract clause they
are including in all of their contracts states the IG shall
have access to any individual charging directly or indirectly
to this contract whose testimony is needed for the performance
of the IG's duties. In addition, the IG shall have direct
access to all records, reports, auditors, reviews,
recommendations, documents, E-mails, papers, or other materials
relating to this contract. Failure on the part of any
contractor to cooperate with the IG shall be grounds for
administrative action by the Director, Office of Contract,
including contractual remedies. Would that have helped?
Mr. Skinner. I am familiar with that language. I took that
language and I brought it to the Coast Guard, who referred me
to the Chief Procurement Officer, who did not act on it. Yes,
that language would help. I have asked that it be included in
all contracts.
Senator McCaskill. And can I get any input from the rest of
the panel as to whether or not you are seeing this language in
any government contracts right now, because we can do this by
contract and not by legislation. If the individual agencies
decide they want cooperation from people they do business with,
they can demand it.
Mr. Miller. Madam Chairman, that would help. That would
give us access to the employees of contractors and
subcontractors, and we need that access to do audits as well as
investigations, because as you know, as an auditor, if you just
get documents----
Senator McCaskill. Right.
Mr. Miller [continuing]. You need to have people explain
the system and that sort of thing.
Senator McCaskill. Or you need a lot more people.
Mr. Miller. You need a lot more people.
I would point out there is a distinction between that and a
subpoena authority, for example----
Senator McCaskill. Right.
Mr. Miller [continuing]. In an investigation. The Recovery
and Accountability Transparency Board, I understand, has
subpoena authority to actually gain access in investigations.
That may also be helpful, too, because if you have an
investigation and you have an employee, for example, of GSA who
may be conspiring with an employee of a contractor, we can talk
to the GSA employee, but if we talk to the employee of a
contractor, as you pointed out before, they could just say,
``Go away,'' and we have no real authority to go back. We can
try and get a prosecutor interested enough to issue a Grand
Jury subpoena, but at that point, we have very little
information to attract the attention of the prosecutor. So that
may be a very difficult thing for us.
So I guess my point is there are two different things.
There is the contract clause that would allow us to gain
access, and then there is the subpoena authority that would
actually give us the power to have the attendance at the
interview.
Senator McCaskill. But the contract language could maybe
get you enough information that you could get the attention of
a prosecutor that could get you the subpoena short of us
getting Congress to do what I think we should do, which is give
you all the same identical powers that others have in terms of
rooting out this kind of fraud.
Mr. Miller. It certainly would help.
Senator McCaskill. OK. Speaking of Justice, according to a
Washington Post article, there are over 900 cases of alleged
fraud in Iraq, Afghanistan, and at home that are stalled at the
Department of Justice. Some whistleblowers have evidently been
waiting as long as 7\1/2\ years while they have waited for the
Justice Department to decide whether to take on their case.
Maybe Justice is worried about your subpoena power because they
don't want any more business. Is that accurate, Mr. Beardall?
Are there that many cases backed up at Justice?
Mr. Beardall. I am not aware of that number, and in fact,
as I stated earlier, the International Contract Corruption Task
Force (ICCTF) has been a boon to us because we have right in
country access not only to other Federal law enforcement
agencies, but also the Department of Justice. If there are
delays in cases, I can't say that it is because of our support
from attorneys. Not only that, cases that we get to a certain
point in Southwest Asia, we then transport back to the States
so we can have prosecution by AUSAs. I am not aware of that
type of back-up. There takes time, of course.
The trouble with a lot of the cases from Southwest Asia are
the fact that they end up being tendrils. It is a real spider
web of one main actor and then the others, and of course, as
you know, you wait to bring to prosecution until you have got
everybody that you want and use those who have come first to
help you with others. So, that at times delays it. Otherwise,
we have had great cooperation, and I am not aware of that kind
of a backlog.
Senator McCaskill. Well, if you would, follow up for the
Subcommittee and find out, what is the backlog at Justice as it
relates to these fraud cases. I am aware of the spider web you
have been dealing with in Iraq on several different levels and
have had the opportunity to be briefed on that. But clearly--I
am not saying it is not possible that the Washington Post is
not accurate, but clearly, if you don't think there is a
serious issue of back-up and the article says there are 900
cases, we have got to figure out what the problem is there, if
there is one.
Mr. Beardall. Well, as I said, my current inventory is
1,800 cases, so I don't have 900 of those backed up and we are
the main actors. There are very few things going on in
Southwest Asia right now that DCIS is not involved in.
[The information submitted by Mr. Beardall follows:]
ADDITIONAL INFORMATION
After reviewing the July 22, 2008, article in The Washington Post,
it was apparent that the reference to the 900 cases involved a backlog
of Qui Tam investigations/prosecutions. Qui Tams are lawsuits brought
by individuals on behalf of the government under the False Claims Act
(31 U.S.C. Sec. 3729 et seq.), in which they come forward with
information of wrongdoing and participate in an investigation and
potentially litigation against the wrongdoer. The Department of Justice
(DOJ), Civil Division, is responsible for reviewing Qui Tam
allegations, determining if an investigation is warranted, and deciding
whether to join the individual in the litigation. If DOJ determines
that an allegation may have merit, it refers the allegation to the
proper investigating agency. As such, the DOJ Civil Division is the
most appropriate agency to respond to the information contained in the
Post article. DCIS is not privy to the facts and circumstances
pertaining to the alleged backlog.
In regards to how many DOD IG investigations are currently referred
to the DOJ, and, of those referrals, how many prosecutions has DOJ
initiated, we provide the following statistics. As of May 11, 2009, 573
DCIS investigations include subjects that have been referred for either
criminal or civil prosecution. The number of subjects referred for
criminal prosecution is 1,445, and 87 percent of those subjects have
been accepted for prosecution. An additional 237 subjects have been
referred to DOJ for civil prosecution, of which 88 percent of those
have been accepted. These figures do not relate to the context of the
article in The Washington Post but reflect all DCIS cases, whether Qui
Tams or not. Of DCIS' current caseload of 1,821 open cases, 181 were
initiated on the basis of a Qui Tam complaint.
Senator McCaskill. OK.
Mr. Beardall. And I would certainly know that.
Senator McCaskill. OK. The next area that I would like to
ask questions about are whistleblower protections. The Project
on Government Oversight recently released a report on
whistleblower protections and they found that in some
instances, the Offices of Inspectors General had not done as
much as they should do in terms of whistleblower protection.
Are you all familiar with the POGO report that I am referring
to?
Mr. Skinner. Yes.
Mr. Miller. Yes.
Mr. Ogden. Yes.
Mr. Beardall. Yes.
Senator McCaskill. One of the places they cited particular
problems, Mr. Skinner, was, in fact, with the DHS IG in terms
of the hotline. They found really long waits, operators who
didn't know anything about the agency, an inadequate system for
dealing with anonymous calls. Could you tell the Subcommittee
what your office has done to deal with what the POGO report
laid out?
Mr. Skinner. Yes, and I would be happy to talk about that,
and I think the POGO report was somewhat incomplete. Before I
became IG, we didn't have a hotline. What you called, you
called between----
Senator McCaskill. We call those cold lines.
Mr. Skinner [continuing]. Between nine and five and you got
a recording.
Senator McCaskill. Right.
Mr. Skinner. And that is all you got.
Senator McCaskill. Not really hot.
Mr. Skinner. So what I have done is we tried to create a
24/7 hotline where someone would answer the phone 24/7, and we
analyzed the cost of that. It was cost prohibitive because of
our budget at that point in time. That was back in early 2005,
calendar year. The only thing--my only options were to take
agents off the ground, off the line, and put them on the
hotline, and our workload was so heavy and still is so heavy
that I could not afford to take those agents off the line to
operate a hotline.
I had funds but not staff. So what I chose to do was hire a
contractor that was doing this for other Federal agencies. I
believe HUD was one of them who actually made the referral to
me, and we looked at two or three and hired this company on an
interim measure until we could build up the resources to
operate our own hotline.
I now have a proposal in to--as a matter of fact, I have
submitted proposals to the full Committee and our
appropriators, as well as to the new Secretary, Secretary
Napolitano, proposing that we integrate the two hotlines within
the Department. The Department operates one and the OIG
operates one. I proposed that we merge those at a cost savings
of about $375,000 a year and that we use our people to manage
that.
But as it stands right now, I just do not have the FTE that
I could take off the line to answer those phones. So until I
can get those FTE, I will have to use a contractor.
What is transparent to POGO when they made those phone
calls is that our hotline also has a direct link to the Gulf
Coast disaster hotline. And depending on your queries, for
example, if you say, I have allegations of public corruption
along the border, that will go to a particular operator. If you
say, I have a question of corruption dealing with Hurricane
Katrina, there is fraud associated with that program, well,
that is automatically routed, and it is transparent to the
caller, down to Baton Rouge, where we have a hotline set up
there that is run in conjunction with the FBI and the
Department of Justice and it is operated by LSU students on
campus, on site at our site.
I agree, it can be improved. We want to improve it. It is a
resource issue.
Senator McCaskill. Well, now we have a reason for you to
come to another hearing because one of our issues that we have
got to deal with in contracting is what government agencies
have done. While some folks have been trying to boast that we
haven't grown government, what government agencies have done
when they don't have FTEs is they have hired contractors, and I
will tell you it is not reassuring to me at a hearing on
contracting oversight that I find out that maybe the reason
that we weren't doing as well as we need to do with the hotline
is because we were hiring contractors to do it. And so
obviously there is an irony there that I am sure doesn't escape
anybody in the room that we need to look at.
And a lot of it is prioritization in deciding whether or
not the hotline and the information that comes from a hotline
is--and I don't doubt, Mr. Skinner, I know that you work hard
as an IG and you have got a great record--I don't doubt that
you don't realize the value of whistleblowers. But I know how
long you all have been doing this kind of work. I know you
understand that the life blood of many investigations that you
do is, in fact, the whistleblower, and their ability to get
information to you in a timely way with protection is just
about as important as it gets.
So I hope that as we move forward in looking at these
issues, usually, it is someone who is--especially in the area
of contracting because there are a lot of good Americans, and I
know at DOD it happens all the time, people in theater that
were calling and saying, this is unbelievable what is happening
over here. And frankly, I don't think the Department of Defense
believed it at first because the calls were so almost--it
sounded like some kind of bad movie plot.
Mr. Beardall. Yes, ma'am. Let me compliment our current IG.
He has made this a top priority, both his hotline and reprisal
investigations. Part of my hat as the Deputy Inspector General
for Investigations is I handle reprisal investigations and he
has plussed-up my staff significantly in the last couple of
weeks, and he is also working hard to make the hotline as
effective as it is. It is a focus of his and he is doing a
great job.
Senator McCaskill. Generally speaking, do most IG shops
have a formalized reprisal investigation protocol? Mr. Ogden,
could you speak to that, or if not, can you get back to us and
let us know?
Mr. Ogden. I can certainly get back to you on that. I think
the other panelists can probably directly address the question.
Senator McCaskill, I do want to come back on the hotline
issue, though, too.
Senator McCaskill. OK.
Mr. Miller. Madam Chairman, I can speak for our office. We
do conduct retaliation investigations from time to time in
conjunction with the Office of Special Counsel and we will
conduct those investigations. Ultimately, we can make findings,
but ultimately, we cannot make the agency do anything. We can
find that there is a whistleblower, that the whistleblower was
subject to retaliation, but we don't have the authority to have
the agency correct it. And then even with our findings, the
Office of Special Counsel would have to go through and either
adopt our findings or adopt separate findings. So that is one
of the weak points. But we do from time to time conduct these
investigations. As you said, they are very important. We need
to protect our whistleblowers and we do the investigations.
Senator McCaskill. OK. Anything else? Mr. Ogden, on the
hotline?
Mr. Ogden. Yes. Thank you, Senator McCaskill. Just as part
of the charge of the Council of Inspectors General on integrity
efficiency, the Executive Council has adopted some goals and
objectives as part of the strategic plan and one of the goals
that has been identified, we do these cross-cutting issues and
one of the first two goals that was identified is a hotline
operations and whistleblower protection project, which was
actually announced today.
The objective there is to develop best practices for OIGs
in hotline operations and whistleblower protection for
effective management and handling of whistleblower allegations,
and so the purpose there is to really take a look at what the
IG community is doing, help develop best practices, and then
communicate that information broadly throughout the community
so that we can fine-tune the operations in all agencies. So
that will be one of the cross-cutting goals that we have
identified and is launched currently.
Senator McCaskill. That is great, because I think that is
one of the things that should be embraced, if we could get
consistency and uniformity as much as possible on whistleblower
protection and protocols for retaliation investigations,
because that is what is scary to a whistleblower, and a lot of
these contractors are working in many different agencies, as
you all know. In fact, which is another hearing, the shopping
around of contracts among agencies and buying off other
people's contracts and all of that that is going on. I think
the more that we have uniformity and the more that it is
embraced systemwide in the IG community that whistleblowers are
sacrosanct and need to be protected at all costs, I think it is
really important.
I want to talk about the post-award audits, and I am trying
to figure out, most people don't understand what that means, a
post-award audit. It is a little bit like some of the other
jargon. I have got to be careful in this Subcommittee, because
I speak it and you all speak it and many of the people who will
testify in this Subcommittee speak it, but it is like a lot of
things in the auditing world. Most people out in America don't
know the language, and so when we talk about a post-award
audit, I want to clarify what we are talking about is checking
to make sure that we got the deal that we thought we got when
we signed the contract.
Mr. Miller. That is right, Madam Chairman. Thank you for
bringing this up, too.
Senator McCaskill. I am trying to figure out, what is the
rational for you not being allowed--because didn't you used to
be able to check the price after we signed the contract to make
sure we aren't getting ripped off?
Mr. Miller. We did, up until 1997. The Veterans Affairs
Office of Inspector General also conducts these audits. But for
some reason, in 1997, I guess OMB decided that we would focus
more on pre-award audits and catch the pricing problems up
front and we would eliminate the post-award audit, so that
after the contract is formed, we can look at a number of
issues, but we can't look at price issues. Theoretically, we
were supposed to look at those up front. But, of course, NAS
contracting has grown exponentially and we only get to look at
a few pre-award contracts, and over the last couple of years,
there were attempts to cut those. So in 1997, it was GSA that
actually cut the clause out of the contract that allowed us to
look at prices, by the way. But in 1997, that was the
rationale.
There was a hearing in 2005, just as I was appointed. I was
confirmed, but I didn't have my commission, so I was having a
Marbury moment, and there was a hearing on this very issue
before a Subcommittee of this Committee, and the issue came up
again. I think Senator Coburn was the Chairman at the time.
They, again, looked at those issues and we testified and OMB
testified again to the same rational, that we will increase
pre-award audits so there is no need to bring back the
authority to look at prices post-award. So that is the only
rational that I have heard.
Senator McCaskill. And have the pre-award audits, in fact
flourished?
Mr. Miller. No, they have not.
Senator McCaskill. I had a feeling.
Mr. Miller. In fact, there is an attempt to reduce those,
as well, over the last couple of years.
Senator McCaskill. But this is a unilateral decision just
made by GSA?
Mr. Miller. GSA was the one making the decision. I am sure
that OMB supported it. I think the other rationale that they
would probably give would be somehow it was a burden on small
companies, which I believe is a total red herring because we
look at large companies that have a lot of Federal contracts.
Typically, we don't even get to look at companies that have
fewer than 50 million in government contracts.
Senator McCaskill. Well, first of all, that notion is
insulting to risk assessment done by you as professionals. I
mean, clearly, you are going to look where you think it is most
likely that you are going to find problems. That doesn't mean
you start with little-bitty contracts. You start with the big
ones----
Mr. Miller. Indeed.
Senator McCaskill [continuing]. Where you have the most
likely chance of making a real difference, a real dent.
Well, I think this is something that--now is the moment----
Mr. Miller. Yes.
Senator McCaskill [continuing]. To work on this issue
because we have a new Administration and I believe we have a
head of GSA who has not yet been confirmed?
Mr. Miller. That is correct.
Senator McCaskill. Timing is everything.
Mr. Miller. Indeed.
Senator McCaskill. So I think this is a very good issue for
us to look at as we talk to the new GSA Administrator. Now, let
us talk a little bit about the Safavian fix. Am I saying that
guy's name right?
Mr. Miller. Yes, you are, Madam Chairman.
Senator McCaskill. What is the fix for this? Is this a law
that we have to do?
Mr. Miller. Unfortunately, it is. I propose----
Senator McCaskill. We have to go in and say that when
somebody from the government comes and asks you questions, a
material omission or twisting is somehow OK?
Mr. Miller. Well, no----
Senator McCaskill. That it is not OK?
Mr. Miller. That it is not OK.
Senator McCaskill. Courts have said that we have to
statutorily inform people of this?
Mr. Miller. The D.C. Circuit held in the Safavian case that
under the false statements statute, 18 U.S.C. 1001, that there
was no duty on the part of the Federal employee, David
Safavian, to tell the special agent the whole truth.
Senator McCaskill. So if you go to someone and ask them if
they used a government contract to, instead of do
reconnaissance work somewhere, they were doing a charter
service of the boat for deep sea fishing and they said no, they
would not be in trouble even if they used it for a party cruise
where there were no fishing poles?
Mr. Miller. Well, if they say an actual lie, then the D.C.
Circuit would say that would count. The problem was that Mr.
Safavian failed to state a very important fact. When he talked
to our special agent, he failed to mention that he was actively
giving assistance to Jack Abramoff in obtaining GSA business at
the time, and so when he told our special agent that he----
Senator McCaskill. And your special agent was investigating
Jack Abramoff?
Mr. Miller. My special agent was investigating claims about
David Safavian. The issue that came in, the allegation was that
Mr. Safavian went on a golfing trip to St. Andrews golf course
in Scotland at the expense of Jack Abramoff along with a number
of other individuals and that Mr. Safavian did not pay for the
trip entirely and that Mr. Abramoff was doing business with
GSA.
What Mr. Safavian told our special agent was that he had
paid for the trip himself, and he produced a check. And he did
not--specifically what he concealed and what the Department of
Justice charged him with concealing was the fact that he was
actively giving assistance to Jack Abramoff in GSA-related
business.
Senator McCaskill. I see.
Mr. Miller. The other part that he didn't tell the full
truth about was he only partially paid. He paid about $3,100
for a week in Scotland and a weekend in London with Mr.
Abramoff. So it was only a partial payment that he had paid. He
didn't state that Mr. Abramoff did pay for the rest.
So what we propose are two potential fixes, one to the
definitional section for 18 U.S.C. 1001, where we specify that
for a Federal employee, they have a duty to tell all material
facts when asked. The other potential fix is to a Sarbanes-
Oxley statute, 18 U.S.C. 1519, and we would put a Subsection B
that would clarify this particular point. So those would be the
two legislative ideas to clarify that Federal employees have to
tell the whole truth. They can't hide the truth with a
deliberate intention of misleading the agent.
Senator McCaskill. I think that is why the phrase says, the
truth, the whole truth, and nothing but the truth.
Mr. Miller. I think it does.
Senator McCaskill. Finally, an area that I would like to
talk about is the Excluded Parties List System (EPLS). This
issue of Social Security numbers or taxpayer identification and
also the idea that we could maybe expand it to include State
and local--I know that you all surveyed on this, Mr. Ogden, and
while you said there was significant opposition, I think 76
percent of your Inspectors General still agreed that we needed
to do some kind of identifying information on the Excluded
Parties List System----
Mr. Ogden. Correct.
Senator McCaskill. I mean, believe me, for somebody in my
line of work, 76 percent is a huge majority. [Laughter.]
Mr. Ogden. Exactly. Let me clarify the opposition point,
Senator McCaskill. The opposition was the use of the Social
Security numbers, not the EPLS, OK.
Senator McCaskill. Right.
Mr. Ogden. To the extent that there are problems with the
EPLS and its administration, that was another issue. But the
opposition that I referred to is specific to the use of the
Social Security number because of identity theft issues.
Senator McCaskill. But don't we have an issue of not being
able to identify people as to all the companies that have the
same or similar names? Isn't that a real problem?
Mr. Ogden. That is a problem. I know we encounter it at my
agency. I know that it is a universal problem throughout the
government. Again, the concern, I think, arises in the context
of specifically the Social Security numbers. Whether or not
there is another unique identifying number, whether or not
there is an Employee Identification Number or another
methodology or a means by which you can protect the data,
specifically the SSN, if you have to use the SSN, is there a
way to protect that data and ensure that it is not going to be
publicly available?
Senator McCaskill. Right.
Mr. Ogden. And that is in keeping with--Senator Feinstein
has introduced, I believe, two bills at this point that are
dealing with breaches regarding SSNs and the OMB memorandum
that I referred to earlier addresses this point. I know it is
an issue within my agency right now, the whole protection of
PII, sensitive personally identifiable information. So that is
the only opposition that we really--otherwise, there was
support for the proposition.
Senator McCaskill. Well, one of you earlier mentioned the
self-certification issue as they could certify that none of the
officers of the company had been convicted of any fraud. Could
we expand that to include debarment, that no one had ever been
subject to an act of debarment?
Mr. Ogden. Yes. Clearly, that could be done, and I am not
certain that it doesn't call for that right now. I know there
is a time limitation of only 3 years currently for that
certification, and the proposal, at least, I believe--and I
will let Mr. Skinner address this and Mr. Miller address this
more specifically since they worked on the Task Force on this
issue, but it would be to expand the--to take away the time
frame, to take away the time limit to ensure that the
certification was without limitation.
Senator McCaskill. Mr. Skinner.
Mr. Skinner. What I was referring to earlier was not
necessarily people that had a criminal record per se, but when
we were doing computer matching, or GAO was actually doing the
computer matching for us to validate small businesses and
disabled vet owned businesses to qualify for small business
contracts after Hurricane Katrina. Without that information,
without some type of an identifier, and in this case, we did
have a VA identifier which they put on the form, but oftentimes
there are no other identifiers.
Senator McCaskill. Right.
Mr. Skinner. And until we can come up with some type of
consistent identifier across government that we can use--and
right now, the only thing we have available to us is the Social
Security number. A lot of the procurement fraud that we are
encountering or benefit fraud that we are encountering can be
detected by just doing simple computer matches with the Social
Security Administration.
Senator McCaskill. Right.
Mr. Skinner. And if that is taken away from us, it is going
to make our job even a lot harder.
Senator McCaskill. We did it all the time in the State
Auditor's Office. I mean, matches were like the sun coming up
in the morning. We couldn't have done our work without the
computer matches.
Mr. Skinner. I think we have an obligation to ensure that
the information is protected.
Senator McCaskill. Right.
Mr. Skinner. And as long as we can demonstrate that we are
good stewards of that information and that we can protect and
safeguard that information, I think we should be allowed to use
it. These are resources, tools that are available to us that
are just not being used right now.
Senator McCaskill. Well, let me say to all of you, there
are other questions I have that we will direct to you. And any
information, further information you want to add to the record,
please feel free to do so. I have got our four performance
measures now that I know. We have got to work on, don't tip off
the bad guy before we have to. We have got to do a better job
on the computer matching. We have got to get more agents for
DCIS. And we have got to deal with the subpoena authority.
Mr. Skinner. That is for everyone, Madam Chairman.
Senator McCaskill. No, I know. I apply all four of these to
all of you and to the entire IG community. But those are four
things that could make a meaningful difference for taxpayers in
terms of how easy it is for you to catch people who are ripping
us off.
I thank you. Please tell all the people who work with you
how much their work is appreciated. They are the kind of people
that, frankly, never get much attention. There is no brass band
for them. If their cases go to court, they generally plead.
They are not even ever on the stand, like ``Law and Order:
Criminal Intent'' or anything like that. There is no stardom in
their work. But it is incredibly important. I know you all feel
that, as leading the agencies you lead. But please convey to
them on behalf of this Subcommittee how much we appreciate
their work.
And if there is anything else that this Subcommittee can do
in helping you catch people who are stealing from our
government, let us know and we will get to work on our list of
four that we have come out of this hearing with. Thank you very
much.
The hearing is adjourned.
[Whereupon, at 3:54 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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