14.1 DOING BUSINESS WITH THE GOVERNMENT
A large portion of the Company’s business involves contracts, either directly or as subcontractors, with public agencies, including federal, state, and local governments. From bid, to contract, to management of a project, through final completion, contracting with any governmental agency is a complex and highly regulated process. We must conduct our business to avoid even the appearance of impropriety. Failure to do so may result in fines, penalties, criminal and/or civil action, and debarment from doing business with the government.
It is also important to remember that the federal government, states, and some municipalities and agencies have their own procedures, rules, and ethical standards for contractors, so all employees should be familiar with the specific requirements applicable to the projects on which they are working. For example, contracts with the United States government may be governed by the Federal Acquisition Regulations (FAR), and subcontracts may incorporate FAR requirements.
14.2 PROCUREMENT INTEGRITY
The federal government and many state/local governments specifically prohibit government contractors from gaining an unfair competitive advantage by obtaining bid or proposal information of a competitor before a contract is awarded by the government. Bid or proposal information includes a competitor’s prices, rates, estimates, or technical data. Confidential information includes the government’s technical or price evaluations, rankings, or competitive range determinations and any information marked as confidential, proprietary, or source selection material. These prohibitions apply whether or not the information is obtained inadvertently. Under no circumstance should such information be used in preparing a bid or proposal. The prohibition on receiving this information extends to materials received from any unauthorized source including government personnel, disgruntled employees, or consultants.
ETHICS LEADERSHIP MOMENT: You are good friends with the public works manager for a local municipality. We have an upcoming bid with them for a major road construction project. The standard process for such requests for information is through the municipality’s web portal so that all of the other bidders can see such questions. The estimator working on the bid asks you if you can call your friend and get some additional information on the project because he would prefer not to let our competition know what we are looking at. Do you make that call?
14.3 FALSE CLAIMS
We will never claim for something that we are not entitled to. It is a violation of federal and many state laws to knowingly submit a false or fraudulent claim to any government client. This includes not only intentional claims but also those that are submitted with deliberate ignorance or reckless disregard for the falsity of the claim. Such laws provide for serious penalties for anyone (companies or individuals) who causes such claims to be submitted, including criminal fines, imprisonment, and/or suspension/debarment from public contracting. To ensure compliance with these laws, we must never:
falsify records concerning the quality or quantity of work completed
exaggerate or create non-existent claims against the government
submit false statements concerning our company or
submit a false or duplicate invoice for payment
submit false records of inspections, meetings, or investigations
ETHICS LEADERSHIP MOMENT: You are reviewing payroll records from one of our subcontractors on a large, ongoing project. You notice that the records indicate that there were far more employees on the project last month than you recall seeing. We’ve worked with this subcontractor for many years and you have never had an issue with them. Should you sign the payroll certification?
14.4 SOCIOECONOMIC PROGRAMS
Colas is committed to full compliance with government-sponsored opportunity programs, such as the HUBZone, Woman-Owned, Veteran- owned, and the disadvantaged business enterprise (DBE) program, including maximizing the opportunities of DBEs. We strive to identify and maximize mutually beneficial relationships with DBE subcontractors and suppliersfrom the bidding process through the completion of a project. As such, the Company will not discriminate on the basis of race, color, national origin, or sex in the hiring of suppliers or subcontractors and will foster an environment in which everyone is treated with respect, trust, honesty, fairness, and dignity. For each government-funded contract, the Company will make good faith efforts to maximize the participation of DBEs in subcontracts and ensure that each DBE is performing a commercially useful function. A DBE is deemed to be performing a commercially useful function if the DBE is responsible for executing the work and carrying out their responsibilities by actually performing, managing, and supervising the work. Additional details related to the Company’s DBE compliance program can be found in your Company’s DBE Compliance Policy and Procedures Manual.
For more information or assistance, contact your local Ethics Manager, the Legal Department, or report concerns or suspected violations of this policy to the Colas Ethics Hotline.
14.5 TRUTH IN NEGOTIATIONS ACT
Federal and many state governments require contractors to submit cost or pricing data and certify that such data are current, accurate, and complete on the date of the final agreement on price, commonly referred to as the “handshake.” Cost or pricing data consist of all facts that exist on the date of the agreement on the price of a contract or contract modification that a reasonably prudent buyer or seller would consider relevant or material to the pricing decisions, even if the data is not used in preparing the proposal. All employees must be aware of and comply with these requirements. Further guidance and policies are available from the Colas USA Chief Ethics & Compliance Officer or Legal Department.
14.6 COMPLIANCE WITH CONTRACT REQUIREMENTS
It is the Company’s policy to adhere strictly to the requirements of all of our contracts. To achieve this objective, responsible employees must understand the requirements of the contracts on which they are working and that the requirements be communicated to the employees responsible for performance. This could include technical requirements, quality standards, adherence to delivery schedules, and billing requirements.
14.7 ACCURATE REPRESENTATIONS & CERTIFICATIONS
Providing inaccurate or misleading information to a government client is illegal. A false report, certification, or representation may result in disqualification, ineligibility, or suspension from procurement and/or debarment from all further government contracting, as well as criminal charges. All reports, representations, and certifications should be executed by an authorized representative of the Company who can attest to the factual nature of the representations and certifications being made.
14.8 PROPER INVOICING & COST CHARGING
It is critical that each and every statement and amount contained on a Company invoice be 100-percent accurate. When dealing with the government, there can be no room for error. Where there is any question, bring the issue to the attention of your supervisor. Similarly, should the Company be awarded a contract where invoicing is done on a cost-incurred basis, any allocation of costs to a government contract contrary to the contract provisions or related laws and regulations is improper. Such improper allocation includes, but is not limited to, charging unallowable costs, the improper execution of employee time cards, charging for hours not worked, charging unsupported overhead costs, incorrectly or inaccurately classifying costs, shifting costs between contracts, or inaccurately representing costs on payment vouchers or progress billing invoices.
14.9 BRIBES, GIFTS KICKBACKS & GRATUITIES
Bribery of government officials, kickbacks, and illegal gratuities are a violation of this Code and are prohibited by federal, state, and local laws. It is imperative that you avoid even the appearance of improper gift giving or attempting to influence any government official. Moreover, it is illegal to solicit, accept, or attempt to solicit any kickbacks in connection with government contracts. A “kickback” is defined as money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to any contractor, subcontractor, or employee of either, for the purpose of improperly obtaining or rewarding favorable treatment. A kickback may appear as an outright payment, an offer to give building materials or supplies to a purchasing agent for his or her personal use, or discounts that may be offered for the purpose of getting favorable business considerations.
Any questions about any proposed arrangement that could be considered a kickback must immediately be discussed with the Legal Department.
14.10 FORMER GOVERNMENT PERSONNEL
Federal laws and regulations govern employment and obtaining services from former military and civilian government personnel and prohibit conflicts of interests (“working both sides of the street”). Talk with our General Counsel before initiating any employment discussions with a government employee. Refer questions in this area to the Legal Department.
14.11 FOREIGN CORRUPT PRACTICES ACT (FCPA)
The FCPA is a federal law that prohibits the bribing (directly or indirectly) of any foreign officials for the purpose of influencing their actions or decisions. This could mean bribes to work or to bypass laws, regulations, or processes. Any violation of this law could lead to significant penalties and criminal exposure (including fines and imprisonment of individuals). Before you engage in any business outside the U.S. or with foreign nationals, you must contact the Legal Department for advice and training on these issues.
ETHICS LEADERSHIP MOMENT: The Company is trying to import a piece of specialized equipment from China. You are told that we can expedite the shipment if we pay the local customs agent a small fee to move the equipment to the front of the pier. Sounds legitimate, right?
14.12 BUY AMERICAN ACT & TRADE AGREEMENTS ACT COMPLIANCE
The Buy American Act (BAA) establishes a domestic preference for the use of articles, materials, and supplies manufactured in the United States when the federal government purchases supplies or services for use within the United States. In order to sell supplies to the federal government, the supplies must be manufactured in the United States as a general rule. There are exceptions to the BAA rule, which allow the federal government to purchase foreign products. Additionally, the Trade Agreements Act (TAA), where applicable, waives the BAA requirement for supplies from certain designated countries under certain circumstances. As a general rule, the TAA is only a relevant consideration where the supply contract exceeds a certain dollar threshold and the threshold depends upon the origin country. Any questions concerning the application of the BAA or TAA to a particular contract shall be brought to the attention of the Legal Department.
14.13 MANDATORY DISCLOSURES
The Company, through its counsel, will make timely disclosures, in writing, to the appropriate U.S. government officials, including where applicable to the appropriate Office of Inspector General and/or Contracting Officer(s), whenever, in connection with the award, performance, or closeout of any government contract performed by the Company, the Company has “credible evidence” that a principal, employee, agent, or subcontractor of the Company has committed a violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity violations found in Title 18 U.S.C. or a violation of the civil False Claims Act (31 U.S.C. §§ 3729-3733). The Company similarly will disclose to the agency Contracting Officer credible evidence of a “significant overpayment.” Failure to comply with this rule could subject the Company and individuals involved to potential suspension or debarment from government contracting, among other consequences. For more information or assistance on any of the issues described in the above section entitled “Government Contracting,” contact the Colas Chief Ethics & Compliance Officer, your local Ethics Manager, the Legal Department, or report concerns or suspected violations of this policy to the Colas Ethics Hotline.
Answer: No. You should always follow the process set forth by the customer. Making such a call outside of the normal process could subject the company to allegations of bid collusion or at the very least a bid protest. Before making any contact, you should speak with the legal department to determine if it would be acceptable.
Answer: No. It is a violation of federal and same state laws to knowingly overcharge or submit a false claim to the government. This includes not only the intentional submission of a false claim but also claims that are submitted with deliberate ignorance or reckless disregard for the falsity of the submission.
Answer: No, not really. Depending on the circumstances such a payment could be a violation of the FCPA as an improper payment to a foreign official. Such a matter would need to be disclosed to the Legal Department immediately.