Monitoring Practices And Fraud Detection & Prevention

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DBE ProgramMonitoring Practices and FraudDetection & PreventionAirport Business Diversity ConferenceSan Diego, CAJune 11, 2013Federal AviationAdministration

DBE Program – 49 CFR Part 26Who must have a DBEprogram “plan”?§26.21(a)(3) FAA recipientsreceiving grants for airport planningor development who will award primecontracts exceeding 250,000 inFAA funds in a Federal fiscal year.2

DBE Program Plan & OverallDBE Goal – Any Difference? DBE Program – Update as Necessary– Your overall plan– Identifies DBELO– Policy Statement– Includes several attachments Overall DBE Goal – Due every three years– A section of your DBE Program plan,typically included as an attachment3

DBE Program: Key ElementsDBECertificationGoal Setting(Overall vs.Project)DBEProgramAnnualReporting4

Monitoring and Oversight Contract ProvisionsGood Faith Effort ReviewPerformance of ParticipantsSite VisitsCommercially Useful Function5

Contracts ProvisionsMust contain these provisions: Non-discrimination (26.13) Prompt payment (26.29(a)) Retainage (26.29(b)) Enforcement Provisions (26.29(d)6

26.13(b) – ContractAssuranceThe contractor, sub recipient or subcontractor shall notdiscriminate on the basis of race, color, national origin,or sex in the performance of this contract. Thecontractor shall carry out applicable requirements of 49CFR part 26 in the award and administration of DOTassisted contracts. Failure by the contractor to carryout these requirements is a material breach of thiscontract, which may result in the termination of thiscontract or such other remedy as the recipient deemsappropriate.7

Prompt Payment No later than 30 days after completionand acceptance– “Satisfactory Completion” means portion ofthe work has been completed and accepted(26.29(c))8

Retainage – Three OptionsAirportPrimeDoes not withholdfrom PrimeDoes notwithhold fromSubDoes not withholdfrom PrimeDoes withholdfrom subsWithholds fromDoes withholdfrom SubsPrimePartial paymentsto prime uponcompletion of workDBEPrime must pay within 30 daysof completion of subcontractor’sworkPrime must pay all retainage tosub for completion of acceptedwork within 30 days of prime’sreceipt of payment from Airport9

Enforcement Provisions Appropriate means to enforce DBErequirements– Penalties for failure to comply– Delay or postponement of payment – Goodcause and prior approval Additional Mechanisms– Use of dispute resolution– Clause on payment withholding– Other – consistent with state and local law10

Federally Assisted Contracts RESTRICTIONS All contracts that include Federal fundsmust incorporate the DBE program andmay NOT impose local MBE/WBEsubcontracting goals Federally-funded contracts may NOTinclude local hiring goals or preferences 49CFR § 18.3611

Monitoring & Oversight 26.37(a) Monitoring performance ofProgram Participants 26.37(b) Ensure work committed toDBEs is performed by DBEs– Written certification – reviewed contractingrecords– Written certification – monitored work sites12

Monitoring - 26.37 (c) Running tally of attainments Compare attainments to commitments13

Site Visits 26.37(b) - Written Certification Commercially Useful Function Fraud Prevention14

COMMERCIALLY USEFUL FUNCTION (CUF) Prime Contractor and Airport only getcredit when DBE performs a CUF Do not confuse CUF with certification May only count the value of the actualwork or service it is “actually”performing on specific contract. DBEhas to be certified for that specific trade.15

Performance 26.53(a) Good Faith Effort Reviews26.53(b) Responsive v. Responsible26.53(f) Termination of DBEs26.55 Counting DBE participationtoward meeting DBE goals –Commercially Useful Function16

Good Faith Efforts Rigorous review of documented efforts Review performance of other bidders Lowest price not sufficient reason toreject Review all subcontractor quotes Follow up with DBEs to see if contacted Beware of meaningless, pro-formacontact/solicitation17

Termination & Substitution ofDBEs Notify DBE of intent to terminate Five days to respond Verification of “Good Cause”18

Enforcement Actions 26.107 Fraud Prevention19

Fraud in Work Performance Areas where fraud can occur:– Primes completing work committed toDBEs– Erosion of independence through resourcesharing– Payment20

FRAUDA Generic Term That Embraces All theWays One Person Can Falsely RepresentSomething to Another in Order to InduceThat Person to Surrender Something ofValue.21

Detecting Fraud Monitor work performed Examine/Question Certification Preventing– Have a plan/train staff– Use contract remedies Suspected Fraud– Who to call– Penalties to invoke22

The process: Referral-Investigation - ProsecutionInvestigations23

Red Flag Indicatorsof DBE Fraud Lack of expertiseEmployee shuttling between prime & subVehicle Magnetic SignsPayment for necessary suppliesPrime facilitates purchase of DBE-owned businessAbsentee ownerPrime always uses same DBEFinancial agreements between Prime and DBEJoint bank accounts (Prime/DBE firm)No written contracts24

Detection of Fraud Schemes Fraud is much morelikely to be detected bytips than by any othermethod. 2012 Association of CertifiedFraud Examiners, Inc.25

Detection of OccupationalFrauds 2012 Association of CertifiedFraud Examiners, Inc.26

Why Employees Do NotReport FraudAccording to a Business Ethics Study(Association of Certified Fraud Examiners),employees do not report fraud because they: Believe nothing will happen. Don’t know who to contact. Think the report will not be kept confidential,so supervisors or co-workers might retaliate. Believe the situation has no personal impacton them.27

Sample Cases False Eligibility Bribery to Falsify DBE CertificationBackground DBE firm does not complete any of thecontracted work DBE sells its status to another companywho completes the work28

REMEDIES Contract Specific RemediesCivil False Claims RemediesCriminal Prosecution RemediesDepartment of Transportation AgencyRemedies29

DOT/OIG Hotline Call:1-800-424-9071 E-Mail: Hotline@oig.dot.gov Write: U.S. DOT/OIGP.O. Box 23178Washington, DC 20026-017830

http://www.oig.dot.gov/fraud-awareness-posters31

32

Thank You!33

Detection of Fraud Schemes Fraud is much more likely to be detected by tips than by any other method. 2012 Association of Certified Fraud Examiners, Inc. 26 Detection of Occupational Frauds 2012 Association of Certified Fraud Examiners, Inc. 27 Why Employees Do Not Report Fraud According to a Business Ethics Study (Association of Certified Fraud Examiners), employees do not .

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