Haste [perhaps] maketh waste

— John Heywood (ca. 1546 — adapted for these COVID-19 times)

Do you want to strike terror into your compliance officer’s heart? In their presence, utter phrases like “we have to push this through,” or “we haven’t got time to vet this sub,” or (if you want a full-on cardiac) “I need you to bless this.” The national effort to address the coronavirus pandemic has inundated the federal marketplace with a flood of new federal funds a fair portion of which are being spent on emergency procurements with severe time constraints.

A quick google search of COVID-19 and compliance will yield a treasure trove of articles, blog posts and client alerts urging federal contractors to review their policies and procedures to avoid the risk of all manner of legal and/or ethical lapses. Indeed, this author was quoted in a recent Law360 article on this very subject in which I warn that contractors may be “raked over the coals unfairly” by auditors, IGs, watchdog groups, or [eek] Congressional oversight committees. I say unfairly because these “what were you thinking” inquiries all will be conducted with the benefit of hindsight. See Law360, “COVID-19 Contractors Must Stay Wary of Enforcement Risks,” https://www.law360.com/governmentcontracts/articles/1269580/covid-19-contractors-must-stay-wary-of-enforcement-risks (paywall relaxed for coronavirus coverage).

A quick look over one’s shoulder provides all the evidence you need to prove that such post hoc criticism is just over the horizon. There have been investigations over how construction contracts were administered in Iraq. Questions were raised about how prime contractors vetted in-country subcontractors in Afghanistan. The use of sole-source contracting in the response to Hurricane Katrina was roundly criticized as an exercise of inside influence. I could go on.

Contractors and the Government both are under great pressure to take a variety of actions—quickly. There are emergency sole-source contract actions. Orders under existing multiple award and/or ID/IQ contracts are being issued after the fact leaving contractors to wonder whether they have proper authority to proceed. New subcontracts with heretofore unfamiliar partners may have become necessary. Facility closures are forcing some contractors to furlough or place employees on leave (note—track these costs as you theoretically wil be able to recover them). Those that continue to operate in their capacity as critical infrastructure or defense industrial base contractors may have employees who are ill or who are caring for ill family members. Some or all of these circumstances are covered under the myriad COVID-19 legislation, executive orders, interim rules, and guidance documents; however, it is a true challenge to harmonize all of these potentially overlapping authorities.

So what to do? Of course, I reflexively join the chorus of those who urge you to review and update your compliance policies and practices to cope with the current environment. No doubt that would be a best practice. But, this best practice may not be practical under the circumstances. So, as an interim measure, take quick stock of your procedures and discern those that many in your organization view as barriers to quick actions. Here’s one clue on the capture side: it’s the things that your business development team gripes about the loudest. Consider how you might engage them to devise quick-action approval procedures. Such engagement builds mutual confidence by simultaneously increasing the comfort level of the compliance team and reduce the myth that compliance just gets in the way.

You could also consider how you might un-silo your chains of command, particularly on high risk contract actions or personnel decisions. By this I mean, to involve, in real time, some person or group outside the chain of command whose task it is to be a second set of (hopefully dispassionate) eyes whose mission is to point out potential risks. This is not to add a path-blocking hurdle to an expedited action; rather, the goal is to reduce the risk that the critical need will obscure the sensible.

In addition, I urge contractors to assume that everything they do on a high-visibility project could become the subject of an investigation or hearing and that any email could be read out loud for all to hear. This is not an admonition to hide icky things; rather, it’s a suggestion that you use one of my favored barometers—whether I would be proud to tell my spouse, mom or dad what I did at work today.

Finally, I have used the phrases “high risk” and “high visibility.” Do not equate these phrases with the dollar value of the procurement. As but one example, virtually any company that is in the supply chain for N95 masks for the Government should consider itself to be in a high compliance risk situation. But, don’t be discouraged to be a part of our shared national mission to cope with this pandemic—just hurry up and wait long enough to consider how you’re responding under the circumstances. By doing so, whatever imperfect actions are taken hopefully won’t result in the question “what were they thinking?”