Access to Records Issues
Purpose of Audit
- By the Contracting Officer or authorized representatives
- Pre-negotiation audit of proposed costs
- Incurred cost audit
- Defective pricing audit
- CAS audit
- Disclosure Statement
- Compliance
- Cost impact
- “Operations” audits
- Subcontract costs (any of the above)
- IG Audit
- GAO Audit
Audit and Records – Negotiation �(FAR 52.215-2)
Covers “books, documents, accounting procedures and practices, and other data, regardless of type and regardless of whether such items are in written form, in the form of computer data, or in any other form” Examination of proposed and incurred costs TINA and CAS Verification of data required in reports Available at all reasonable times. usually until 3 years after final payment GAO audit of “directly pertinent records involving transactions related to this contract”
Inspector General Act of 1978
“Each Inspector General, in carrying out the provisions of this Act, is authorized—” access to records, reports, audits, reviews, documents, papers, recommendations, or other material which relate to programs and operations with respect to which the Inspector General has responsibilities investigations and reports that are, in the judgment of the Inspector General, necessary or desirable Subpoenas for the production of information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence Testimony under oath
Effective Limits on Access
Only existing records need be produced – no requirement to create records that do not exist Case law imposes virtually no limits on the types of documents subject to review (internal audit reports not covered under one case, decided over 20 years ago) Operations audits untested Subpoena power for records No right to interview witnesses (except for IG)
Controversial Issues
Board of Directors Minutes Litigation and investigation records Internal audit reports and other internal control records Analyses of contractor records Employee interviews “Operational audits” Disclosure of judgments in price proposals
Board of Directors Minutes
Could be relevant to TINA and allowability May be highly confidential But, generally low risk Several years old when requested Usually well-vetted by counsel Board committee records – a relatively new issue
Litigation and investigation records
Communications with attorneys that may be privileged Risks of subject matter waiver and third party discovery Used as covert discovery by the Government as a party Reserve information Generally not privileged Disclosure is highly prejudicial How much back up information is required under the regulations?