ADMINISTRATIVE AGREEMENT BETWEEN INCHCAPE SHIPPING SERVICES HOLDINGS LTD. AND THE DEPARTMENT OF THE NAVY

Transcription

1 A. PREAMBLE: ADMINISTRATIVE AGREEMENT BETWEEN INCHCAPE SHIPPING SERVICES HOLDINGS LTD. AND THE DEPARTMENT OF THE NAVY 1. This Administrative Agreement (hereinafter "Agreement") is entered into between the Department of the Navy ("DON") and Inchcape Shipping Services Holdings Ltd., including its affiliated companies ("Contractor"). The sole purpose of this Agreement is to evince that Contractor is presently responsible to conduct business with the United States ("U.S.") Government by ensuring that Contractor will: (a) have an ethics program and training program that promotes an ethical working climate at Contractor; (b) conduct audits; (c) refund overpayments to the DON; and (d) make timely disclosures of fraud (or suspected fraud) and significant overpayments (or suspected overpayments) in connection with Government contracts. For purposes of this Agreement, Contractor shall mean Contractor as a body corporate, its successors, affiliates, subsidiaries, and/or divisions and all owners, directors, officers, employees and/or consultants (whether compensated or uncompensated) of any of the aforesaid entities. Contracts shall mean any prime contracts or subcontracts, regardless of subcontracting tier level. 2. This Agreement is specifically intended to address those causes for suspension that are stated in the DON Suspension and Debarring Official (SDO) Notice of Suspension dated November 26, 2013, (hereinafter "the Notice"), that was enjoined by a temporary restraining order issued by the Court of Federal Claims on January 2, 2014, in Civil Action No. 1: 13-cv JFM (hereinafter "the TRO"), as well as Contractor's recognition that the current procedures are insufficient to ensure prompt payment of monies belonging to the DON. Upon execution of this Agreement, Contractor agrees to immediately join in a joint motion to dismiss with prejudice its complaint filed with the Court of Federal Claims on December 3, 2013, Civil Action No. 1 :13-cv JFM. 3. Contractor's corrective actions and prospective cooperation and transparency reflected in the terms and conditions of this Agreement, if fully and timely implemented and performed by Contractor, provide adequate assurances that Contractor's future dealings with the U.S. Government, if any, will be conducted with the high degree ofhonesty and integrity required of a responsible Government contractor. Therefore, suspending or debarring Contractor is not necessary, at this time, to protect the U.S. Government's interests. 4. Contractor avers that it is not currently a signatory to any agreement substantially similar to this Agreement with any agency or entity of the U.S. Government and that it will not enter into any such agreement, while a party hereto, without the express prior written consent of the DON SDO. 5. By this Agreement, Contractor recognizes its corporate responsibility to ensure that it fully complies with all U.S. Government procurement laws and regulations when contracting, directly or indirectly, with the U.S. Government, and that it will conduct -1-

2 itself with the high degree of integrity and responsibility required of contractors that do business with the U.S. Government. 6. Contractor's senior management consists of the Chief Executive Officer (CEO), the Chief Financial Officer, the General Counsel and the Global Compliance Officer (collectively, "Senior Management"). NOW THEREFORE, in consideration of the promises set forth herein and for good and valuable consideration, the parties mutually agree as follows: B. GOVERNMENT CONTRACTS ETHICS AND COMPLIANCE PROGRAM: 1. Business Guidelines. (i) Adoption of Guidelines. Contractor represents that it has adopted and implemented Guidelines for Doing Business with the United States and Other Government Customers ("USG Business Guidelines"), attached hereto as Exhibit A. (ii) Employee Subject to Guidelines. Contractor shall ensure that each of Contractor's employees involved in U.S. Government contracting reviews these USG Business Guidelines annually and that every new employee involved in U.S. Government contracting reviews the USG Business Guidelines at the start of employment with Contractor. (iii)maintenance, Review and Update. The USG Business Guidelines shall be: (1) maintained throughout the term of this Agreement; (2) reviewed on an annual basis by Contractor's CEO, Global Compliance Officer, and duly appointed legal counsel; and (3) updated as required for compliance with statutory and/or regulatory changes. (iv)annual Certification. Senior Management and all of Contractor's directors, officers, employees, and consultants involved in U.S. Government contracting shall annually certify that they have reviewed the USG Business Guidelines and understand that they are required to comply with its provisions. (v) Management Oversight. Contractor management shall monitor employee compliance with the USG Business Guidelines and consider such compliance when making decisions concerning personnel decisions, including compensation. (vi)sdo and Monitor Review. Contractor will submit the USG Business Guidelines to the DON SDO and the Monitor (as defined in Section C of this Agreement) for review and, with respect to those portions of the policy and procedures updated or issued after this Agreement is signed, will submit updates in advance of promulgation unless immediate promulgation is required by law. The Monitor may suggest additional policies and procedures. The DON SDO may also suggest additional policies and procedures, as well as approve or disapprove of any subsequent revisions to the USG Business Guidelines. -2-

3 2. Code ofbusiness Conduct. (i) Adoption of Code of Business Conduct. Contractor represents that it has adopted and implemented a Code of Business Conduct and Ethics ("Code of Business Conduct"), attached hereto as Exhibit B. (ii) Employees Subject to Code of Business Conduct. Contractor shall ensure that each of Contractor's employees reviews the Code of Business Conduct annually, and that every new employee reviews the Code of Business Conduct at the start of employment with Contractor. (iii)maintenance, Review and Update. The Code of Business Conduct shall be: ( 1) maintained throughout the term of this Agreement; (2) reviewed on an annual basis by Contractor's CEO, Global Compliance Officer, and duly appointed legal counsel; and (3) updated as required for compliance with statutory and/or regulatory changes. (iv)annual Certification. Senior Management and all of Contractor's directors, officers, employees, and consultants shall annually certify that they have reviewed the Code of Business Conduct and understand that they are required to comply with its provisions. 3. Compliance Training Module. (i) Adoption of Compliance Training Module. Within thirty (30) calendar days of execution of this Agreement, Contractor shall adopt and implement a U.S. Government Contracts Ethics and Compliance Training Module ("Compliance Training Module"). (ii) Compliance Training Module Audience. During the term of this Agreement, Contractor shall ensure that the Compliance Training Module is presented to each of its members of Senior Management and all employees involved in U.S. Government contracting at least once per year. Such employees are required to certify that they received the training. (iii)compliance Training Module Topics. The Compliance Training Module should include topics covering the issues faced by Contractor when preparing for, entering into, and administering U.S. Government contracts. Without limitation, the Compliance Training Module should include training on complying with contractor disclosure requirements under the Federal Acquisition Regulation ("FAR"). Contractor's employees who are directly involved with the formation and the performance of U.S. Government contracts will receive specialized training in U.S. procurement laws, regulations, and policies. (iv)don Approval of Training Plans. Contractor shall provide the Monitor and the DON SDO a training plan with a detailed description of course materials it intends to use in ethics and compliance training classes: (1) within thirty (30) calendar days of the signing of this Agreement; (2) within thirty (30) calendar days of the end of the first year (12 months) ofthis Agreement; and (3) within thirty (30) calendar -3-

4 days ofthe end of the second year (24 months) ofthis Agreement. If the DON SDO rejects any of the training plans, the DON will specify the reasons for doing so and Contractor will promptly propose another plan. (v) Notice of Training. Upon request, Contractor will provide the Monitor and/or the DON Acquisition Integrity Office (AIO) a schedule of upcoming ethics and Government contracting training sessions so the Monitor and/or the DON AIO staff or SDO may attend the training. (vi)frequency and Certification of Training. Contractor shall review, and, as appropriate, update all ethics and compliance training annually. Contractor shall track completion of training by maintaining rosters of employee attendance and employee certifications. Within thirty (30) calendar days of their being hired, Contractor shall ensure that new hires that are Senior Management or that otherwise are involved in U.S. Government contracting receive ethics awareness training and compliance training, as required, and certify that they have read and will comply with the USG Business Guidelines and the Code of Business Conduct. Copies of attendance rosters and employee certifications must be made available to the DON SDO or Monitor as requested. 4. Reconciliation Process. Within thirty (30) calendar days of execution of this Agreement, Contractor will provide the DON a draft process for reconciliation of U.S. Government invoices ("Reconciliation Process"). The Reconciliation Process must comport with all applicable Government contracts to which Contractor is a party. To the extent not inconsistent with such contracts, the Reconciliation Process will include, without limitation, provisions for: (1) prompt payment to the DON, (2) quarterly internal audits of the reconciliation accounts, (3) annual audits, conducted by Contractor's independent outside auditor, of the reconciliation accounts, and (4) reporting results of such audits to the applicable DON Contracting Officers as well as the DON SDO. Within thirty (30) calendar days of the DON's approval of that policy, Contractor will adopt the Reconciliation Process and provide training to all employees worldwide responsible for reconciliation of invoices on DON contracts. 5. Management Involvement. (i) Compliance Training Module. A member of Contractor's Senior Management Team shall participate in the annual presentation of the Compliance Training Module to Contractor's employees. (ii) Management Assessment of Ethics and Compliance Program. Contractor's CEO and Board of Directors shall regularly review and assess the effectiveness of Contractor's ethics and compliance program. 6. Global Compliance Officer. (i) Appointment and Duties. Contractor has appointed a Global Compliance Officer and shall for the duration of this Agreement maintain this position. The Global Compliance Officer is responsible for ensuring, reviewing, assessing, and enforcing -4-

5 Contractor's ethics and compliance programs, including the programs identified in this Agreement. The Global Compliance Officer shall report to, and be responsible to, Contractor's CEO and Board of Directors. (ii) DON SDO Approval. The identification and qualifications ofthe Global Compliance Officer will be provided to the DON SDO within thirty (30) calendar days ofthe Effective Date ofthis Agreement. Continuing appointment of this individual will be subject to approval by the DON SDO. If the DON SDO advises Contractor that the individual identified is not satisfactory, Contractor shall promptly appoint another individual to this position, also subject to the DON SDO' s approval. (iii)replacement Appointments. In the event that the Global Compliance Officer leaves the position, Contractor shall notify the DON SDO in writing within (ten) 10 calendar days. A replacement shall be selected by Contractor and reported to the DON SDO not later than thirty (30) calendar days after the Global Compliance Officer's departure. The replacement Global Compliance Officer's appointment shall also be subject to approval by the DON SDO, in accordance with paragraph B.6.ii, above. (iv)investigations of Suspected Misconduct. The Global Compliance Officer shall investigate all instances of suspected misconduct related to, or in any way impacting, U.S. Government contracts and shall report in writing any substantiated findings of misconduct to Senior Management and the Board of Directors. Within thirty (30) calendar days of receipt of this report, Senior Management shall respond to the Global Compliance Officer, detailing how it intends to respond to the substantiated findings of misconduct. Both the Global Compliance Officer's report and Senior Management's written response shall be provided to the DON SDO and the Monitor within fifteen (15) calendar days of Senior Management's response. (v) Quarterly Reports to the SDO and the Monitor. The Global Compliance Officer shall, within thirty (30) calendar days after the end of each fiscal quarter (July, October, January, and April), prepare and deliver to the DON SDO and the Monitor a quarterly report, which shall include a synopsis of each instance of suspected and/or confirmed misconduct relating to, or in any way impacting, U.S. Government contracts that became known to the Global Compliance Officer, CEO, and/or the Board of Directors during the fiscal quarter. This synopsis shall be made without regard to the degree to which the Global Compliance Officer has been able, as of the due date of the report, to investigate the misconduct. The synopsis shall include disclosure of any remedial action taken to date. (vi)the Quarterly Report shall also include, as related to U.S. Government contracts: ( 1) all instances of disciplinary action for violations of the USG Business Guidelines and the Code of Business Conduct, (2) all known, ongoing criminal investigations, (3) all known suits brought under the provisions of the False Claims Act, (4) all known or suspected defective pricing cases, (5) all hotline reports received by the Global Compliance Officer including a description of the complaint and any remedial action taken or planned, ( 6) reports of new employee training as -5-

6 required by paragraph B.3.vi of this Agreement, and (7) any other matter which might affect Contractor's present responsibility status, including but not limited to actual or potential suspension and/or debarment actions by other governmental and quasi-governmental agencies (both within the United States and abroad). 7. Retention of Employee Compliance Records. During the term of this Agreement, Contractor shall retain records of its employees' attestation of their review of Contractor's USG Business Guidelines and Code of Business Conduct, as well of proof of attendance at the presentation of the Compliance Training Module that will be submitted to, and reviewed by, the Monitor. 8. Ethics Hotline. (i) Adoption and Maintenance. During the term ofthis Agreement, Contractor shall maintain a third-party-administered ethics and compliance hotline ("Ethics Hotline") that must be available to receive information at all times. (ii) Material Elements of Ethics Hotline. Contractor represents that the Ethics Hotline is available so that employees may report to the Global Compliance Officer any violations of the USG Business Guidelines or the Code of Business Conduct. In reporting any alleged violation, employees are given the option to do so anonymously, and in accordance with local laws and regulations. Information on how to use or access the hotline will be readily available to all employees in their work areas and in their working language. Information gathered and learned from the hotline will be provided to the Global Compliance Officer, Senior Management, and the Board of Directors for purposes of initiating investigations as appropriate. Within thirty (30) calendar days of being appointed, the Monitor shall review the Ethics Hotline for confirmation that it complies with Contractor's representations herein and shall report the results of this review to the DON SDO. (iii)record of Hotline Complaints. To the extent consistent with applicable law, the Global Compliance Officer shall ensure that a record is maintained of all hotline submissions or employee reports to the Global Compliance Officer or Monitor and will maintain the data for the Monitor as directed, to include: date and time of call; identity of caller, if disclosed; summary of allegation or inquiry; and general resolution or referral. (iv)lnvestigation of Complaints. Contractor shall ensure that each call to the Ethics Hotline is adequately investigated and resolved. Access to complaint information will be granted to the Monitor solely to facilitate the duties described in Section C of this Agreement. Access to this information that relates in any way to, or has the potential to impact or apply to U.S. Government contracting will also be provided to the DON SDO, at his/her request. Contractor shall not assert an attorney-client privilege with respect to the contents of the information provided. 9. Modifications to Ethics and Compliance Programs. Contractor shall notify the Monitor and the DON SDO of any proposed significant changes to the USG Business Guidelines, the Code of Business Conduct, the Compliance Training Module, the approved -6-

7 Reconciliation Process, or the Ethics Hotline. No such changes shall be implemented without the prior approval of the DON SDO. 10. Notification to Employees of this Agreement. Within thirty (30) calendar days after this Agreement is signed, Contractor's CEO shall issue a letter stating that Contractor has entered into this Agreement. The letter shall state: (i) The basis for this Agreement; (ii) Contractor's commitment to observe all applicable laws and regulations, and to maintain the highest standards in conducting business with the United States Government; (iii)a brief description of the features of the ethics and compliance program; (iv)the toll-free hotline and contact information for the Monitor; (v) The availability of the Global Compliance Officer or his/her designee and the Monitor to answer questions; (vi)as related to U.S. Government contracts, the employees' ability to report matters to the Monitor, who will conduct an investigation, including a recommendation of corrective action; and (vii) That employees may make reports of violations of the ethics and compliance program without revealing their identity, when such anonymity is possible without violation of applicable local law or regulation. This letter shall be provided to all employees (in hard copy) and on Contractor's intranet so as to be accessible to all employees. For the duration of this Agreement, a copy of this letter will be provided to all new employees. A copy of the CEO's letter will be forwarded to the DON SDO for approval prior to distribution. C. INDEPENDENT MONITOR 1. Selection oflndependent Monitor. Within thirty (30) calendar days after this Agreement is signed, Contractor shall select an independent monitor ("Monitor"), with no affiliation to Contractor, and Contractor shall submit the proposed Monitor's name, resume or curriculum vitae, and contact information to the DON SDO, for the DON SDO's approval. 2. Functions; Fees and Expenses. Upon approval of the Monitor by the DON SDO, Contractor shall retain the Monitor to perform the duties set forth in this Agreement. Contractor is solely responsible for payment of all fees and expenses of the Monitor and his/her staff and the Monitor's reasonably required consultants or outside experts in performing the duties set forth in this Agreement. -7-

8 3. Replacement Monitor. Any change of the Monitor appointed per this Agreement requires prior DON SDO approval, in accordance with subparagraph C.l. At any time, should the DON SDO become dissatisfied with the performance of the Monitor, the DON SDO may require Contractor to nominate a different candidate to serve in this role subject to the DON SDO's approval in accordance with subparagraph C.l. 4. Monitor's Staff and Resources. Contractor agrees that the Monitor shall have sufficient staff and resources, as reasonably determined by the Monitor, to effectively monitor Contractor's compliance with this Agreement. Contractor also agrees that the Monitor may consult with other counsel or outside experts in performing any of his/her duties under this Agreement. 5. Monitor's Annual Certification. Upon appointment, and each year thereafter, the Monitor shall furnish the DON SDO with an affidavit certifying that he/she has no financial interest in, or other relationship with, Contractor or its affiliates, other than that arising from his/her appointment as the Monitor. The affidavit must also certify that his/her representation of any other client will not create a conflict of interest or appearance thereof in fulfilling his/her responsibilities as Monitor. Any change in relationships that would affect these certifications must be reported to the DON SDO before they occur or as soon as the Monitor or Contractor learns of them. 6. Monitor's Responsibilities. The Monitor is responsible for monitoring and assessing Contractor's compliance with the terms of this Agreement and ensuring that Contractor performs its obligations under this Agreement in a timely and satisfactory manner. The DON intends for the Monitor to act as an independent check upon Contractor's compliance with this Agreement. The Monitor shall not be an agent of Contractor and his/her work shall not be subject to Contractor's assertion of the attorney-client privilege or the work product doctrine. The Monitor will, at his or her discretion, investigate complaints concerning Contractor's compliance with this Agreement and will report to the DON SDO concerning Contractor's compliance with this Agreement. 7. Reporting Requirements. The Monitor shall conduct the following reviews and make the following reports: (i) Baseline Review. Within thirty (30) calendar days of being retained, the Monitor shall commence an in-person "baseline review" of Contractor's Government Contracts Ethics and Compliance Program, as detailed in Section B of this Agreement (collectively, the "Ethics and Compliance Program"). This baseline review shall be a determination of whether Contractor has implemented all of the provisions of the Ethics and Compliance Program. After conducting this baseline review, the Monitor shall provide a written report to the DON SDO detailing Contractor's compliance with the provisions of the Ethics and Compliance Program. Such baseline review and report shall be completed within a period of ninety (90) calendar days. The Monitor shall telephonically advise the DON SDO on a monthly basis as to the status of the baseline review. In the event the baseline review and report are not completed within ninety (90) calendar days, the Monitor shall advise the DON SDO in writing, why the review and/or report are not completed and request additional time to complete the review and/or report. The -8-

9 DON SDO may grant an extension of time, but (unless otherwise agreed to by the DON SDO) the baseline review and report must be completed no later than one hundred twenty (120) calendar days from the date of the Monitor's appointment. (ii) Maintenance Review. If, as a result of the baseline review, the Monitor concludes that Contractor has fully implemented the Ethics and Compliance Program, the Monitor shall perform one subsequent in-person "maintenance review" assessing continuing compliance with provisions of the Ethics and Compliance Program. This maintenance review shall be conducted within eighteen (18) months after this Agreement is signed. The Monitor shall report his or her findings in writing to the DON SDO within fifteen (15) calendar days of completing the maintenance review. (iii)final Review. The Monitor shall conduct a "final review" with Contractor during the month prior to expiration of this Agreement to assess Contractor's compliance with provisions of the Ethics and Compliance Program during the term of this Agreement. The Monitor will also provide recommendations for Contractor's continuing adherence to the Ethics and Compliance Program after the Agreement's expiration. Unless the Monitor or the DON SDO determine otherwise, the final review need not be in-person. The Monitor shall report his or her findings to the DON SDO within fifteen (15) calendar days of completing the final review. (iv)follow-up Review. If, as a result of the baseline review, the Monitor concludes that Contractor has not fully implemented the Ethics and Compliance Program, then the Monitor shall conduct another in-person review of Contractor's implementation of the provisions of the Ethics and Compliance Program within six (6) months of the baseline review. The Monitor shall report his or her findings from the follow-up review to the DON SDO within fifteen (15) calendar days after completing the follow-up review. If the follow-up review indicates that Contractor has fully implemented the Ethics and Compliance Program, then the Monitor shall thereafter conduct the "maintenance review" and "final review" referenced above. If the follow-up review determines that Contractor is not in compliance with all of the Ethics and Compliance Program's provisions, Contractor shall be deemed to be in material breach of this Agreement that may be asserted by the DON SDO as a basis for commencing suspension and/or debarment proceedings. (v) Quarterly Telephonic Reviews. In addition to the monitoring and reporting requirements set forth in subparagraphs (i) through (iv) above, the Monitor shall contact a member of Contractor's Senior Management by telephone at least once per quarter during the term of this Agreement. During this telephone call Contractor shall provide a verbal status report on Contractor's Ethics and Compliance Program as well as report any misconduct or ethics and compliance issues that Contractor has become aware of since the last review by, or conference call with, the Monitor. Following these quarterly telephone calls with Contractor, the Monitor shall report by telephone to the DON SDO that the telephone conference with Contractor has taken place and, if applicable, report any concerns that the Monitor has regarding Contractor's compliance with the terms of this Agreement. -9-

10 8. Reporting of Allegations of Misconduct and Unethical Behavior. In addition to any reporting required by the FAR and the reporting requirements set forth in this Agreement, Contractor shall notify the Monitor of any allegations of misconduct or unethical behavior involving Contractor or its employees, along with any related remedial measures being taken by Contractor. Such notification shall occur within ten (1 0) business days after Contractor becomes aware of any such allegations. The Monitor shall then notify the DON SDO of these allegations that relate in any way to, or have the potential to impact on or apply to, U.S. Government contracts within five (5) business days of receiving such notification from Contractor. 9. DON Inquiries Regarding Compliance. The DON SDO has the right to contact the Monitor and Contractor at any time during the term of the Agreement to discuss the status of Contractor's compliance with the Agreement. Contractor agrees that the DON SDO's access to its employees, records, and the factual portions and non-legal analysis of internal investigations, shall not be limited by assertions of attorney-client privilege or the work-product doctrine, and that the DON shall have full access, as permissible under applicable law, to Contractor's employees, records, and internal investigations regarding ethics and compliance issues that relate in any way to, or have the potential to impact on or apply to, U.S. Government contracts. 10. Access to Management and Employees. As part of the reviews conducted by the Monitor, the Monitor may request to meet with Contractor's Senior Management and/or Board of Directors to discuss the implementation of this Agreement, the status of ongoing investigations and any other matters related to the Monitor's duties under this Agreement. In addition, when necessary to perform the duties specified in Section C of this Agreement, the Monitor shall meet with the management of any of Contractor's divisions, operating units, groups, and other subsidiaries performing U.S. Government contracts to discuss the Ethics and Compliance Program. Notice of such meetings shall be provided to the DON SDO by the Monitor to allow for attendance by the DON SDO or his/her representative( s). 11. Issuance of Monitor Reports; DON Address for Reports. The Monitor shall issue all reports to the DON SDO without first discussing its proposed conclusions with Contractor or its representatives. All reports shall be submitted by the Monitor to the DON SDO via attention of the individual below, or to such other person as the DON SDO may designate from time to time: Ernesto R. Beckford Associate Counsel Acquisition Integrity Office Office of the General Counsel 720 Kennon Street SE, Bldg. 36, Rm. 214 Washington Navy Yard, DC Phone: (202) ernesto. beckford@navy.mil The Monitor will provide a copy of all reports to Contractor's Senior Management after the report has been provided to the SDO. Contractor will have an opportunity to provide -10-

11 comment on the Monitor's report to the DON SDO within ten (10) calendar days after Contractor receives the report. 12. No Waiver. Neither delivery to, nor review by, the DON of any report by the Monitor shall waive, limit, or in any way diminish the DON's right to obtain, review, analyze, or evaluate any underlying evidence of Contractor's compliance or non-compliance with this Agreement or applicable law, including any information or evidence shared with the Monitor. D. INDEPENDENT AUDIT 1. False Claims Act Audit. Contractor acknowledges that it is under investigation by the Department of Justice (DOJ) for potential violations of the False Claims Act (FCA), 31 U.S.C , for its performance under its ship husbanding contracts with the DON, for allegedly overcharging the DON for ship husbanding services in various ways, and for, as described in the Notice of Suspension, failure to return monies belonging to the DON under its DON ship husbanding contracts. In connection with this investigation, Contractor represents that it intends to enter into discussions with the DOJ concerning potential resolution of all of the allegations, and that to facilitate these discussions, it will enter into an agreement with the DOJ to retain, at the Contractor's sole expense, a third party auditor acceptable to the DOJ to conduct an audit of Contractor's billings under its DON ship husbanding contracts for the period August 1, 2005 through December 31, 2013, to audit Contractor's invoicing and billing for compliance with applicable contract requirements, to determine the amount of any overbillings and whether all monies have been refunded to the U.S. Government (hereinafter, "FCA Audit"). (i) (ii) (iii) Contractor will provide FCA Audit to DON SDO. Contractor agrees to provide the DON SDO with a copy of the final and any interim drafts of the FCA Audit, audit work papers and all supporting documents within three (3) calendar days of receiving such documents from the retained auditor. Independent Audit oflssues Not Resolved With DOJ. If for any reason Contractor's discussions with the DOJ fail to result in a settlement resolving Contractor's liability for any or all of the allegations under investigation by the DOJ, Contractor shall promptly arrange with the DON SDO to conduct, under the DON SDO's supervision and approval, an audit by an independent Auditor ("Auditor") designed to confirm whether, for all contracts issued by the DON to Contractor, Contractor's invoicing and billing is compliant with the applicable contract requirements and whether all credits have been refunded to the U.S. Government (the "DON Audit"). Failure to Proceed with FCA Audit. If, by April 30, 2014, Contractor has not entered into an agreement with the DOJ which includes the retention of a third party auditor to perform the above-described FCA Audit, then -11-

12 the DON SDO, at her or his sole discretion, may order that the DON Audit be conducted. (iv) If the DON SDO determines that the DON Audit is necessary under subparagraphs (ii) or (iii), then the DON Audit will be conducted in accordance with subparagraphs D below. In designing the audit plan in accordance with subparagraph D.7.(i) below, the independent Auditor shall take into account the information already available in any FCA Audit. Contractor agrees that in the event an additional audit is deemed necessary by the DON SDO, then this Agreement will be extended by the length of time necessary for completion of the independent audit outlined in subparagraphs D below. ( v) If for any reason Contractor's discussions with the DOJ fail to resolve Contractor's potential liability for any or all of the allegations under investigation by the DOJ, and the U.S. becomes a party to a False Claims Act suit against Contractor ("Lawsuit"), the DON SDO, in his or her sole discretion, reserves the right to order that the DON Audit be conducted in accordance with subparagraphs D below upon termination ofthat Lawsuit by a settlement or final judgment. Contractor agrees that in the event the DON SDO determines that the DON Audit should await the termination of the Lawsuit, then this Agreement will be extended by the length of time necessary for completion of the DON Audit outlined in subparagraphs D below. 2. Selection oflndependent Auditor. Within thirty (30) calendar days after the DON SDO has determined that an independent audit is necessary, Contractor shall select an independent Auditor ("Auditor"), with no affiliation to Contractor and Contractor shall submit the name, resume or curriculum vitae, and contact information of the proposed Auditor to the DON SDO for the DON SDO's approval. 3. Functions; Fees and Expenses. Upon approval of the Auditor by the DON SDO, Contractor shall retain the Auditor to perform the functions set forth in subparagraphs D.2-12 of the Agreement. Contractor is solely responsible for payment of all fees and expenses of the Auditor and his/her staff and the Auditor's reasonably required consultants or outside experts in performing the auditing and reporting functions set forth in this Agreement. 4. Replacement Auditor. Any change of the Auditor appointed per this Agreement requires the DON SDO's approval in accordance with paragraph D.2. Should the DON SDO become dissatisfied with the performance of the Auditor, the DON SDO may require Contractor to nominate a different candidate to serve in this role subject to the DON SDO's approval in accordance with paragraph D Auditor's Staff and Resources. Contractor agrees that the Auditor shall have sufficient staff and resources, as reasonably determined by the Auditor, to effectively audit Contractor's compliance with this Agreement. Contractor also agrees that the Auditor -12-

13 may consult with other counsel or outside experts in performing any of his/her responsibilities under this Agreement. 6. Auditor's Annual Certification. Upon appointment, and each year thereafter, the Auditor shall furnish the DON SDO with an affidavit certifying that he/she has no financial interest in, or other relationship with, Contractor or its affiliates, other than that arising from his/her appointment as the Auditor. The affidavit must also certify that his/her representation of any other client will not create a conflict of interest or appearance thereof in fulfilling his/her responsibilities as Auditor. Any change in relationships that would affect these certifications must be reported to the DON SDO before they occur or as soon as the Auditor or Contractor learns of them. 7. Auditor's Responsibilities. The Auditor shall conduct the following reviews and make the following reports: (i) Within thirty (30) calendar days of being retained, the Auditor shall provide an audit plan to the DON SDO for approval. The audit plan shall be designed to confirm whether, for all U.S. Government contracts issued by the DON to Contractor, Contractor's invoicing and billing is compliant with the applicable contract requirements and whether, if applicable, all monies have been refunded to the U.S. Government. The audit period shall be August 1, 2005 through December 31, The DON SDO may share the audit plan and any reports referenced therein with any Department of Defense officials the DON SDO deems appropriate. (ii) The Auditor shall provide to the DON SDO an audit status report every three months following the DON SDO's approval of the audit plan until the conclusion of the audit. This report shall set forth the status of the DON Audit Report as well as any significant preliminary findings. (iii)the Auditor shall report its DON Audit Report to the DON SDO within fifteen (15) calendar days of completion. The DON Audit Report shall, at a minimum, confirm whether, for all U.S. Government contracts issued by the DON to Contractor, Contractor's invoicing and billing is compliant with the applicable contract requirements and whether, if applicable, all credits have been refunded to the U.S. Government during the audit period. 8. Cooperation with the Auditor. Contractor understands and specifically agrees that the Auditor shall determine what employees, records, and/or internal reports he/she requires access to in order to conduct the Audit. Contractor shall make available all employees and/or provide all documents deemed necessary for the conduct of the Audit to the Auditor and/or his/her staff, consultants or experts. 9. Time for Completion of DON Audit Report. The DON Audit Report shall be completed within a period of six (6) months from the date the DON SDO approves the audit plan. The Auditor shall telephonically advise the DON SDO on a monthly basis as to the status of the DON Audit Report. In the event the DON Audit Report is not completed within six (6) months, the Auditor shall advise the DON SDO in writing, describing why the DON Audit Report is not completed and requesting additional time to complete the DON -13-

14 Audit Report. The DON SDO may grant an extension of time, but (unless otherwise agreed to by the DON SDO) the Auditor must complete the DON Audit Report no later than nine (9) months from the DON SDO's approval of the audit plan. 10. Restitution. The parties anticipate that discussions with the DOJ concerning potential resolution of the allegations under investigation may result in a settlement agreement resolving Contractor's obligations to refund all monies belonging to the DON and other issues. If such a settlement occurs or litigation with the DOJ ensues, Contractor shall pay the U.S. in accordance with the terms and conditions of any such settlement agreement or any final judgment in any such litigation. Should the DON SDO invoke the right to conduct a DON Audit, the Contractor shall make further restitution as follows: (i) Restitution shall be based on the DON Audit Report. For all matters that are not resolved through the DOJ, Contractor shall make restitution within thirty (30) calendar days after Contractor receives the DON Audit Report in the amounts identified in the DON Audit Report. To the extent that any disagreement exists over the DON Audit Report, the DON SDO, Contractor, and Auditor shall meet to discuss the disagreement and agree to a method for resolving the disagreement. Contractor shall settle all outstanding amounts owed, including the payment of interest as contemplated by any relevant FAR provisions, regulations, or statutes. Failure by Contractor to make restitution for any outstanding amounts owed to the DON or that have been determined are due to the DON based on the DON Audit Report, as agreed to by the DON SDO and Contractor, shall be deemed a material breach of this Agreement and may be relied upon by the DON SDO as a basis for suspension or debarment. 11. DON Address for Reports. All referenced reports shall be submitted by the Auditor to the DON SDO in care of the individual below, or to such other person as the DON SDO may designate from time to time: Emesto R. Beckford Associate Counsel Acquisition Integrity Office Office of the General Counsel 720 Kennon Street SE, Bldg. 36, Rm. 214 Washington Navy Yard, DC Phone: (202) emesto. beckford@navy.mil 12. No Waiver. Neither delivery to, nor review by, the DON of any report by the Auditor shall waive, limit, or in any way diminish the DON's right to obtain, review, analyze or evaluate any underlying evidence of Contractor's compliance or non-compliance with this Agreement or applicable law, including any information or evidence shared with the Auditor. -14-

15 E. CONTRACTOR FURTHER AGREES TO: 1. Cooperation in Government Investigations. Cooperate in any administrative, civil, and/or criminal investigation(s) conducted by the U.S. or any U.S. Government agency of Contractor's activities, employees, or parties with which Contractor has or has had a business relationship. 2. List of Government Contracts and Subcontracts. Provide the DON SDO with a list of all of its Government contracts and subcontracts in effect during the term ofthis Agreement, as well as the names and contact information for individuals who may be contacted as Government points of contact for each contract or subcontract. 3. DON Site Inspections. Permit DON personnel to conduct site inspections of any of Contractor's offices or places of business responsible for or performing, or having an impact on, U.S. Government contracts as is reasonably required to monitor compliance with this Agreement. These site inspections shall include meetings and discussions with Contractor's employees regarding compliance with this Agreement and review of Contractor's records related to compliance with this Agreement. Contractor further agrees to make available during such site inspections employees not located at sites performing, or having an impact on, U.S. Government contracts, who have been, or are, involved in the performance of such contracts. 4. Right of DON Personnel to Accompany Monitor and/or Auditor. The DON SDO shall, at his/her sole discretion, have the right to have DON personnel accompany the Monitor and/or the Auditor during the performance of their reviews and/or audits. DON personnel accompanying the Monitor and/or Auditor shall have the same rights of access to Contractor's employees, records, and internal reports as is provided to the Monitor and/or the Auditor. 5. Fees and Expenses. Reimburse the DON for the reasonable fees and expenses associated with all DON site inspections, or DON personnel accompaniments of the Monitor or Auditor as described in paragraph E.4, above. 6. Notification of Government Investigations. Provide, within thirty (30) calendar days after this Agreement is signed, a listing and status of all known ongoing criminal, civil, and administrative investigations and proceedings conducted by any government entity with regard to any allegation relating to Contractor's violation of any U.S. Government contracts or regulations. 7. Notice of Business Transfers. In the event that Contractor sells or in any way transfers ownership of any part of its business that does business with the U.S. Government (by either contract or subcontract), Contractor shall notify the DON SDO in advance and shall require the acquiring entity as a condition of its sale to remain bound by the terms of this Agreement for the duration of this Agreement, including, but not limited to, all reporting requirements. 8. Notice of New Business Units. In the event that Contractor purchases or establishes new business units or entities that hold U.S. Government contracts after this Agreement is -15-

16 signed, Contractor shall implement all provisions ofthis Agreement, including all training or education requirements, within sixty (60) calendar days following such purchase or establishment. 9. Notice of Criminal Convictions. Upon a conviction of Contractor or any owner, officer, employee or consultant of Contractor, or the entering of a guilty plea or plea of nolo contendere for violation of any U.S. State or Federal criminal statute, Contractor shall take appropriate disciplinary action against all responsible individuals. In addition to any reporting required by the FAR, Contractor shall notify the Monitor of any such conviction within five (5) calendar days of discovery. 10. Notice of Indictments or Guilty Pleas. Upon an indictment of, or the entering of a guilty plea or plea of nolo contendere, by any officer, employee or consultant of Contractor for violation of any U.S. State or Federal criminal statute, when such violation occurred in connection with the individual's performance of duties for or on behalf of Contractor, immediately remove the officer, employee or consultant from active employment status relating to any dealings with the U.S. Government. In addition to any reporting required by the FAR, Contractor shall notify the Monitor of any such indictment or plea within five (5) calendar days of discovery. 11. Termination of Employment for Criminal Convictions. Upon an unappealed conviction of, or after an unsuccessful final appeal of a conviction, by any director, officer, employee, or consultant of Contractor for violation of any U.S. criminal statute, when such violation occurred in connection with the individual's performance of duties for, or on behalf of, Contractor, take prompt action to terminate the employment of such officer, employee or consultant or, as appropriate, remove such director from Contractor's Board of Directors in recognition of 10 U.S.C. Section In addition to any reporting required by the FAR, Contractor shall report any such action to the Monitor within five ( 5) calendar days of discovery. 12. No Employment of Excluded Parties Listed Persons. (i) Contractor shall not knowingly employ, with or without pay, an individual listed as debarred, suspended, or otherwise ineligible for contracting by the U.S. Government (hereinafter "listed individual"). Furthermore, Contractor shall not knowingly enter into any subcontract, purchase agreement, or other business relationship relating to U.S. Government contracts with any individual or business entity listed as debarred, suspended, or otherwise ineligible for contracting by the U.S. Government (hereinafter "listed contractor"). (ii) Contractor shall make reasonable inquiry into the listed contractor status of each prospective business associate, to include, at a minimum, review of the U.S. General Services Administration's (GSA's) System for Award Management (SAM), including the version of this list maintained by GSA on the internet. (iii)if Contractor concludes that there is a compelling reason for a U.S. Government contracts related business relationship with a listed individual or a listed contractor, Contractor shall provide notice to the DON SDO, and, if a U.S. Government -16-

17 contract, the cognizant Contracting Officer in accordance with FAR (b ), prior to entering such a business relationship. F. GENERAL CONDITIONS: 1. Unallowable Costs. Contractor agrees that all costs, as defined in FAR , incurred by, for, or on behalf of Contractor or any current or former employee, affiliate, or agent in connection with: (a) the Noticeand this Agreement; (b) any investigation conducted as a result ofthe Notice and/or the Agreement; and/or (c) the costs of Contractor's submissions, presentations, reviews by outside consultants and law firms and appearances before the DON SDO in the past and throughout the term of this Agreement shall be expressly unallowable costs for Government contracting purposes. However, Contractor's present and future costs of maintaining, operating, and improving the Contractor's compliance program are allowable costs. 2. No Waiver. Except as provided in paragraph 3 below, the execution of this Agreement by the DON in no way waives any criminal, civil, contractual, or administrative remedy or right that the U.S. Government may have for the acts described in the Notice, or for any other conduct that would give rise to such remedies. 3. Termination of Suspension. In recognition of the actions by and covenants of Contractor set forth in this Agreement the DON SDO will terminate Contractor's suspension set forth in the Notice, that has been temporarily enjoined by the TRO issued by the Court of Federal Claims. 4. No Determination of Present Responsibility. By entering into this Agreement, the DON is not determining that Contractor is presently responsible for any specific Government contract. 5. Scope of This Agreement. This Agreement in no way restricts the authority, responsibility, or legal duty of the DON, or any other federal agency, to consider and institute suspension or debarment proceedings against Contractor based upon newly discovered or independent information, or information known to the U.S. Government and/or the DON but not relied on for cause in the Notice, including, but not restricted to, any substantive allegations of wrongdoing under any past, present, or future Ethics Hotline complaint or security program investigations, or any indictment, conviction, guilty plea, or plea of nolo contendere resulting from any violation of U.S. statutes or regulation, or for the failure to comply with the terms of this Agreement. The DON or any other federal agency may, in its sole discretion, initiate such proceedings in accordance with the FAR Subpart 9.4. (i) The DON reserves the right to require additional protective measures or modifications of this Agreement if an independent cause for suspension or debarment should arise. Failure to institute such proposed measures may constitute an independent cause for suspension or debarment of Contractor in accordance with FAR Subpart