In response to the COVID-19 pandemic, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act on March 27, 2020. With over $2 trillion in funding, it is to date the largest stimulus legislative measure ever enacted. The fiscal relief law was the third of what are currently four federal stimulus laws meant to counteract the COVID-19 economic shock. A historically wide-ranging legislation, the CARES Act is intended to support workers, provide relief to small and large businesses, provide support to a healthcare strained system, and stabilize the overall economy through targeted financial assistance.

The CARES Act includes stipulations for government contractors seeking relief from adverse contracting impacts, notably Section 3610, Federal Contractor Authority, which permits reimbursement for contractors unable to access government work sites. There has also been follow-on agency guidance specific to contractors grappling with contract performance interruptions and cost-recovery issues.

Compliance with crisis recovery-related laws and regulations means government contractors will need to identify COVID-19–driven contract impacts diligently, document financial impacts carefully, and communicate early and often with contracting officers and memorialize those discussions in writing. Past experiences including emergencies like Hurricane Katrina and the conflicts in Iraq and Afghanistan allow for an eyes-wide-open approach today. The governmental entities with oversight and investigation responsibilities include the ever-present purchasing agencies, Offices of the Inspector General, Department of Justice, and state attorneys general, among others.

However, the CARES Act has added a significant oversight framework on top of the existing framework. The CARES Act creates four new distinct investigative entities with commensurate funding that will strengthen the government’s ability to account for CARES Act funds, investigate suspect contractor practices, and enforce procurement and COVID-19–related relief laws. These entities are:

Pandemic Response Accountability Committee (PRAC)

The CARES Act appropriates $80 million for this committee to “promote transparency and conduct and support oversight” of the federal government’s COVID-19 response. The PRAC resides organizationally within the Council of the Inspectors General on Integrity and Efficiency (CIGIE), the primary oversight body of statutory inspectors general.[1] This committee will operate across programs, agencies, and regulatory boundaries. It will coordinate and monitor federal COVID-19 response, conduct its own audits and reviews, and establish a public website for fostering “greater accountability and transparency” amid COVID-19 governmental response. The PRAC will serve in a strategic oversight role by communicating and coordinating across various CARES Act oversight bodies.

Special Inspector General for Pandemic Recovery (SIGPR)

The CARES Act establishes the SIGPR to “conduct, supervise, and coordinate audits and investigations” of the financial assistance programs (i.e., business loans) for businesses targeted for help in the CARES Act.[2] This new inspectors general office has been set up in the Treasury Department to focus on tracking business relief programs by aggregating and reporting the details of specific Treasury-directed funds. The SIGPR will record the types of Treasury CARES Act–related transactions, provide lists of businesses receiving aid, provide loan descriptions, monitor the status of loans, and oversee individuals retained to service loans and loan guarantees.

The SIGPR mirrors the scope and purpose of earlier special inspectors general established in the wake of the 2008–2009 financial crisis, the Special Inspector General for the Troubled Asset Relief Program (SIGTARP), and during the Afghanistan war, the Special Inspector General for Afghanistan Reconstruction (SIGAR).

The Congressional Oversight Commission (COC)[3]

The COC will lead Congress’ effort to oversee the Treasury Department and Federal Reserve Board’s rollout of CARES Act relief programs and stabilization measures. It is composed of five congressional members appointed by both parties and will have subpoena powers to inspect the administration’s relief efforts during the pandemic response. The COC will publish monthly reports to Congress on the pandemic response activities of the Treasury Department and Federal Reserve Board and on the impact of response programs; and will monitor required disclosures from relief programs for transparency.

Like the SIGPR, the COC has a precedent in the Troubled Asset Relief Program Congressional Oversight Panel (TARP-COP), which operated from December 2008 to March 2011.[4]

General Accountability Office (GAO)

The CARES Act appropriates an additional $20 million in funding to the GAO to oversee and report to Congress within ninety days of CARES Act enactment on a number of healthcare-related CARES Act initiatives.[5] Examples include the Healthy Start Program[6] and Nurse Loan Repayment Programs,[7] and the regulation of over-the-counter drugs.[8] The GAO report will contain a spending plan for the funds allocated to these initiatives and provide a timeline for audits and investigations.

Takeaways

Like governmental relief efforts in past crises, where widespread aid has been distributed quickly across multiple programs and industries, there is ample opportunity for fraud, waste, and abuse. History suggests these oversight bodies should aggressively investigate and report missteps and abuses of CARES Act relief programs.

Contractors applying for and receiving CARES Act funds would be wise to examine carefully any regulatory obligations, use relief funds only as permitted, document the authorization and use of relief funds meticulously, and submit accurate and timely reporting to oversight bodies as required. On top of CARES Act–specific compliance, contractors should ensure their internal controls functions, including an internal whistleblower program, are emphasized by management and practiced throughout the company. Diligent compliance efforts, strong internal controls, and safeguards complying specifically with CARES Act requirements will minimize the chances of CARES Act relief funds misuse and resulting oversight scrutiny.

Notes

[1] Pursuant to the Inspector General Act of 1978, CIGIE’s mission is to “address the integrity, economy, and effectiveness of issues that transcend individual Government agencies” and “increase the professionalism and effectiveness of [OIG] personnel.” See 5 USC Appendix 11, Establishment of the Council of the Inspectors General on Integrity and Efficiency.

[2] CARES Act, Section 4018, Special Inspector General for Pandemic Recovery. The SIGPR has authority as provided in Section 6 of the Inspector General Act.

[3] CARES Act, Section 4020, Congressional Oversight Commission.

[4] University of North Texas, “Congressional Oversight Panel,” University Libraries (archived April 1, 2011), available at: https://cybercemetery.unt.edu/archive/cop/20110401223312/http:/cop.senate.gov/index.cfm

[5] CARES Act, Title IX, Division B, under the heading “Government Accountability Office.”

[6] CARES Act, Section 3225.

[7] CARES Act, Section 3404.

[8] CARES Act, Section 3851.