State Department updating contracting language to head off confusion, misunderstandings

The State Department will be improving transparency in its requirements for contractor cooperation with its Office of Inspector General. While the Foreign Affairs Manual authorizes the OIG to access a contractor’s documents and interview its employees during the scope of an investigation, that provision is not currently explicitly expressed in the contracts signed by vendors. The OIG and the department are moving to correct this issue, and hopefully head off any further confusion or misunderstandings.

Kevin Donohue, deputy special counsel for the State Department OIG, has spearheaded this effort to begin including a clause in these contracts to ensure that vendors are explicitly informed up front of this requirement.

“For the vast majority of contractors, this is going to represent absolutely no change,” he told Federal News Radio. “But what we are doing is safeguarding our ability to enforce failure to cooperate with those few contractors who for whatever reason decide they will do that.”

Donohue said most contractors are perfectly willing to comply with OIG requests. But every now and then, issues have been known to arise.

For example, in February 2018, the Office of Personnel Management’s OIG issued a report on a contractor that would not comply with requests for an IT audit of security controls. The contractor refused to allow OPM’s OIG access to any servers beyond the ones that contained the relevant data on them, despite that fact that those servers could potentially be compromised by others in the environment. The contractor also refused to provide the full scope of documents requested by OPM.

This kind of situation is not common; Donohue said it’s the exception, rather than the rule. And OIGs, whether at the State Department or other agencies, have tools to handle these situations, including direct contact with the contractor’s legal counsel, or even a subpoena, if the situation warrants.

“The vast majority of contractors that I have experience with, this is not an issue,” Donohue said. “This is part of doing business with the government. But there have been times when a contractor chose not to cooperate rapidly or fully. And normally I would just handle those by dealing with their legal department and making sure they understood the statutory authority that we had in case there was any doubt.”

But obviously, it’s preferable to proactively head off these kinds of situations, however rare, rather than have to resort to legal recourse.

And clauses like these are generally standard practice across the government; Donohue said most agencies’ acquisition departments insert clauses of this nature into their contract to inform vendors up front about the requirements, and he cited these when he sat down with State’s legal department and procurement and acquisition components almost a year ago to discuss making these changes.

“I should stress that there’s no daylight between the Office of the Inspector General and the Department of State with regard to what we’re asking The Department to do. Ever since my first meeting, they’ve been completely on board, completely agreeable to this. It just hadn’t been done,” Donohue said.

So for the past year, staff at the various stakeholder offices have been communicating back and forth, discussing the issue and hashing out the language. Now, the OIG has made its recommendations, and the Office of Procurement executive agreed. It’s unclear when the changes will officially be made, but the process is underway.

“When we get into rulemaking, it’s necessarily a very slow, deliberate, thorough process, and we all respect that. So I can’t project how soon we will see this,” Donohue said.

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