Alert: Does Your State Contract Prohibit Offshore Outsourcing?
So your company has been diligently trying to comply with
state and federal government contracting regulations. You pay your service
employees in accordance with the Service Contract Act, you file your EEO-1s and
VETS 100s, you monitor state campaign contributions, and you follow all of the
additional requirements in your compliance plan. You think your company is “golden.”
Right? Maybe. Are you “offshoring” services under your contract, or the data
related to your state and/or Medicaid government contracts? This easily
overlooked issue has been percolating to the top of the list for government
agencies, state attorneys general, and perhaps, qui tam plaintiffs’ attorneys.
Offshoring, or “the import from abroad of goods or services
that were previously produced domestically,”
is a major part of today’s business landscape, and government contracting at
both federal and state levels is no exception. The issue of offshore
outsourcing of services first drew attention in the world of government
contracts in 2004, when the media reported that call centers in India were answering
customer service calls from Food Stamp recipients.
The controversy faded from the public spotlight, but in response to public
outcry some states passed legislation or issued executive orders prohibiting or
limiting the practice.
A recent (April 11, 2014) report
from the Department of Health and Human Services (DHHS) Office of the Inspector
General (OIG) resurfaced the issue of offshoring restrictions in the context of
Medicaid contracts. The report reminded contractors that offshoring prohibitions
and limitations remain in full force today, and government contractors need to
be aware of them. Government contractors must review each individual state
contract to ensure compliance with any offshore outsourcing prohibition or
restriction. Running afoul of an offshore outsourcing prohibition could have
serious consequences. Noncompliance could expose a contractor to suspension,
debarment, or even liability under the state’s version of the False Claims Act
under the theory that the contractor implicitly certified compliance with a
material term of the contract.
The varying levels of prohibitions on offshore outsourcing
that exist throughout the United States and U.S. territories underpin the
importance of carefully reviewing each state’s requirements and each individual
contract. Some states, such as Alaska, Arizona, Missouri, New Jersey, Ohio, and
Wisconsin, have broad prohibitions against offshore outsourcing of services. For
example, Ohio’s standard solicitation includes a Standard Affirmation and
Disclosure Form Governing the Expenditure of Public Funds on Offshore Services,
which states, “If awarded a contract, both the Service Provider and any of its
subcontractors shall perform no services requested under this Contract outside
of the United States.”
Similarly, Wisconsin’s standard solicitation warns offerors that their “inability
to perform all services in the United States shall be grounds for disqualifying
your Proposal for this contract.”
Even if a state does not have a statute, regulation, or
Executive Order directly impacting the offshoring of services, it is still
necessary to review all solicitations closely for language regarding
offshoring. For example, Delaware contains no statutory or regulatory
prohibition on offshore outsourcing, yet a recent Delaware solicitation states,
“The State will not permit project work to be done offshore.” The solicitation makes
clear that this prohibition extends to subcontractors. For the most part,
Pennsylvania frames the offshoring issue as a preference for “Domestic Workforce
Utilization” by awarding bonus points to nonoutsourcing offerors, but the
Commonwealth exercises strict border patrol when it comes to offshoring of
customer service. A recent Pennsylvania RFP involving customer service support
provided that the “Commonwealth requires that there be no offshoring of calls
for participants.”
Other states require the disclosure of services to be
performed offshore without prohibiting offshoring. South Carolina has no
offshoring prohibition on the books but does use the standard solicitation
clause “Offshore Contracting,” requiring offerors to identify any work to be
performed offshore, including work by subcontractors. Offerors in South
Carolina must disclose (1) the type of work being contracted offshore; (2) the
percentage of the total work being contracted offshore; (3) the percentage of
the total value of the contract being contracted offshore; and (4) a Service
Level Agreement between the contractor and offshore contractor. The “Vendor
Disclosure Statement” in Colorado solicitations not only asks offerors to
identify any planned offshoring but also to justify it: “If it is anticipated
that services under the contract, or any subcontracts, will be performed
outside of the United States or the State of Colorado, explain why it is
necessary or advantageous to go outside the United States or the State of
Colorado to perform the contract or any subcontracts.”
The recent DHHS OIG Report canvassed state Medicaid agencies
and reported their policies on offshore outsourcing. According to the report,
Medicaid contract provisions in Montana and New Mexico prohibit direct offshore
outsourcing, highlighting the importance of consulting the solicitation
closely, especially if the scope of work involves handling patient health
information (PHI). The OIG cautions Medicaid agencies that if they “engage in
offshore outsourcing of administrative functions that involve PHI, it could
present potential vulnerabilities.”
The Health Insurance Portability and Accountability Act (HIPAA) requires
Medicaid agencies to enter into Business Associate Agreements (BAAs) with
contractors who offshore administrative functions to safeguard PHI.
However, the OIG believes that sending PHI offshore limits the effective
enforcement of BAA provisions and therefore the BAAs themselves provide
insufficient protection of PHI.
One should not conclude from these restrictions that
individual states are inward-focused and unengaged in the global market place;
in fact the opposite trend is taking place. The offshore outsourcing
prohibitions that exist are only directed at the location of the services
performed, not the contractor’s country of origin. States want their contractors
to employ Americans, but they welcome the business of favored international trading
partners. Indeed, 37 U.S. states have signed the World Trade Organization (WTO)
Government Procurement Agreement (GPA). The states’ positions on offshore
outsourcing did not appear to have any bearing on their willingness to join the
WTO GPA: Arizona and Wisconsin are among them. The WTO GPA requires its 43 member
countries to afford one another equal treatment on acquisitions above a certain
threshold. The current threshold for goods and services for the 37 states is
$558,000.
Nonetheless, the April 2014 DHHS Report coincides with a
significant increase in states adopting and expanding False Claims Acts. Thirty-six
states and the District of Columbia now have FCAs, which empower state attorneys general to file false claims actions, as well as review qui tam suits filed by relators to
determine whether the state should intervene and assume primary responsibility
for prosecuting the action. Further, states, mirroring action at the federal
level, are expanding False Claims Acts to incorporate new theories of
liability. Particularly relevant to the issue of offshoring is the implied certification
theory, whereby a defendant submitting claims for payment is found to have
implicitly certified that it has complied with all statutory, regulatory, and
contractual provisions that are a precondition for payment—including state
prohibitions on offshore outsourcing. The prospect of state action on such
theories becomes only more likely as state attorneys general face pressure to
recover funds for their states, and they—as well as qui tam relators, with whom state attorneys general increasingly work—are
given ever more expansive tools with which to do so.
As with any procurement, but perhaps more so with the
variety and flux across state acquisitions, a close reading of the solicitation
is paramount. If your services involve sensitive client data (particularly PHI)
or call centers, meticulously examine the RFP for any offshore outsourcing
prohibitions.
- Review the solicitation closely. A state solicitation
can contain offshoring prohibitions even where the state has no statutory or
regulatory prohibition on offshoring.
- If your solicitation contains an offshoring
provision, is it a total prohibition, a partial limitation, or just a
disclosure requirement? Understand what is required for compliance.
- Do the services to be performed involve
sensitive client data, like PHI? If offshoring such data, establish controls to
appropriately safeguard the information.
For Additional Information
To learn more about how we can work with you to address the issues presented above, please contact Merle M. DeLancey at delanceym@dicksteinshapiro.com or (202) 420-2282, Bernard Nash at nashb@dicksteinshapiro.com or (202) 420-2209, Adele H. Lack at lacka@dicksteinshapiro.com or (202) 420-3563, Christopher J. Allen at allenc@dicksteinshapiro.com or (202) 420-3324, or another member of our Government Contracts or State Attorneys General practices on our website.
|