Over the past decade, the anti-corruption, ethics, and compliance landscape has changed dramatically. This is a direct consequence of a global anti- corruption enforcement effort led by the United States through its enforcement of the Foreign Corrupt Practices Act.1 The increase in enforcement has also been spurred by the adoption of several multilateral anti-corruption agreements, such as the Organization for Economic Co-operation and Development (OECD) Anti-Bribery Convention and the United Nations Convention Against Corruption (UNCAC).2 These agreements have spurred several countries to enact anti-corruption laws, such as the U.K. Bribery Act, Brazil’s Clean Company Act, and France’s Loi Sapin II.3 The laws prohibit, among other things, the bribery of foreign government officials.4 They also encourage companies to dedicate resources to developing anti-corruption compliance programs and maintaining robust internal controls.5
The increase in anti-corruption enforcement has profoundly impacted large, multinational corporations. Many of these companies have responded to the enforcement increase by investing heavily in sophisticated compliance programs designed to prevent or mitigate liability for anti-corruption violations.6 The development of rigorous internal compliance programs has been particularly pronounced in the defense industry, especially among large, U.S. defense contractors.7
Unlike their large counterparts, many small government contractors are largely unable to keep up with the rapidly evolving trends and best practices in ethics and compliance. Their inattention to this critical area leaves them at risk for compliance failures, fraud, and corruption.8 As a result, small contractors are more likely than their large counterparts to be debarred from the U.S. procurement system.9 Despite the harsh consequences of compliance deficiencies, few small contractors are likely to dedicate resources to the development of vital compliance policies and internal controls because of the reality of limited resources.10 This has created a critical gap in the defense industry supply chain, as many large contractors may partner with small companies that lack the sophistication and resources necessary to ensure compliance with the many government contracts compliance requirements.11
One solution to this growing problem is to incentivize large government contractors to help their small subcontractors develop compliance programs. The incentives, of course, must be substantial enough to convince large contractors to share their confidential and proprietary compliance programs and best practices.
Fortunately, a model for this type of arrangement exists in the U.S. procurement system. The “mentor-protégé” program is designed to help small businesses navigate the immense government contracts regulatory system.12 Under this program, generally a larger, more experienced contractor serves as a “mentor” to a smaller contractor (the “protégé”).13 The mentor, among other things, guides the protégé through the complex procurement regime by sharing expertise and resources.14 In return, the mentor is provided with contractual opportunities and incentives by the U.S. Government.15 This model could benefit companies in the compliance space by providing a mechanism for contracting parties to exchange information and ensure transparency throughout all levels of the procurement process.
This article recommends incentivizing large businesses to utilize their vast resources to assist their small business partners with the development of internal ethics and compliance programs in order to improve the overall integrity of the government procurement system. Part II of this article analyzes the development of global anti-corruption compliance standards through an overview of noteworthy changes in laws, regulations and enforcement. Part III analyzes the current compliance risks that large companies face when contracting with smaller companies who lack robust compliance systems and internal controls. Part IV recommends the adoption of a corporate mentor-protégé program that incentivizes larger companies to dedicate resources to helping smaller contractors develop anti-corruption compliance programs. Part V offers some concluding thoughts.