MACOM Focal Point

(Record the name, grade, office symbol, and telephone number of the MACOM focal point.)

Section VIII (Coordination/Comments) (Record the name, grade, organization, office symbol, and telephone number of all officials with whom you have coordinated the Remedies Plan or who have provided comments on your plan; append any comments provided to the Remedies Plan.)

Figure H-3. Guide for Testing Defective Items Under Criminal or Civil Investigation Testing Defective Items Under Criminal or Civil Investigation

1. Under no circumstances is testing to proceed unless the command has committed sufficient funding to cover the entire cost of the projected testing.

2. No testing will be initiated unless there has been a written request for the testing to the appropriate Procurement Fraud Advisor from a criminal investigator or Assistant United States Attorney or Department of Justice Attorney (AUSA is used in these procedures to indicate either an AUSA or Department of Justice attorney). If they have not already done so, criminal investigators should be requested to coordinate their testing requests with the AUSA overseeing the investigation.

3. Barring extraordinary circumstances, only one test will be conducted to support the criminal and civil recovery efforts of a procurement fraud/irregularity matter. Early coordination with the Civil Division of Department of Justice or the local United States Attorneys Office is necessary to ensure that testing funds are not wasted.

4. The request for testing should include a clear, concise statement of the purpose of the testing to include a statement of the allegations made and the contact number(s) involved. Any test plan which requires destructive testing must be approved by the AUSA.

5. No testing will be initiated unless a test plan has been developed which states the following:

a. the contract number(s) involved

b. the National Stock Number (NSN) of the item to be tested

c. the purpose of the testing

d. the alleged defect or the contractual requirement violated

e. the CID report of investigation (ROI) number or the DCIS case number

f. cost of the test (a cost proposal should be an attachment to the test plan)

g. where the test will be conducted h. how the test will be conducted

i. the name and telephone number of the test team leader

j. the names of all test team members

k. the approximate dates of the testing

1. the date that completion of the test is required

m. a clear statement of the desired product (that is test report, raw data, analysis of results, evaluation of test results)

n. the PRON to fund the testing o. a retention plan.

6. The test plan shall be coordinated with the concurrence received in advance from the appropriate personnel in the Procurement Directorate, Product Assurance and Test Directorate, the Procurement Fraud Advisor, and the investigator/AUSA requesting the test. No testing will be initiated until the criminal investigator/AUSA who requested the testing has approved the test plan.

7. If the items tested are to be retained as evidence, the criminal investigator should arrange for retention of the evidence. While the Command will support evidence retention, this is primarily the responsibility of the criminal investigators. Agents should be advised that putting items in Code L or similar non-use status is insufficient to protect it from being released to the field. A decision not to retain the tested items as evidence must have the approval of the AUSA.

8. All items to be tested should be from a statistically valid random sample. The sample should conform with the inspection requirements of the contract or be in conformance with a random sample specifically developed for the instant test plan. It is recommended that a statistician be consulted to determine the feasibility of a random sample specifically created to support the test plan.

9. Results of testing should be available to Command and DA personnel for appropriate contractual and administrative remedies. Any request for testing results that indicates that dissemination of the testing results will be limited by Rule 6(e) of the Federal Rules of Criminal Procedure is to be forwarded through the MACOM or AMC Procurement Fraud Coordinator to DA Procurement Fraud Division prior to the initiation of any testing.

10. Resolution of problems associated with testing requests should be conducted at the local level. In AMC the authority to refuse a testing request resides with the Office of Command Counsel. Any disputes which cannot be resolved at the local level will be forwarded to the AMC or MACOM Procurement Fraud Coordinator for resolution. This includes disputes regarding funding or any time sensitive issues.

11. Second requests for testing of the same item due to a change in the investigative plan require coordination by the PFA with the investigator and AUSA overseeing the investigation to determine the deficiencies in the earlier test. Disputes which cannot be

resolved between the AUSA, PFA, and investigator regarding testing are to be forwarded simultaneously to the MACOM Procurement Fraud Coordinator and PFD for resolution. The procedures established in paragraphs 5 and 6 apply for second requests for testing with the additional requirement that the Assistant United States Attorney must be requested to approve the test plan.

Figure 1-1. Guide for Seeking Legal Advice and Representation Before Office of Special Counsel Guide for Seeking Legal Advice and Representation Before Office of Special Coun

sel

1. Overview

a. DA employees or military members asked to provide information (testimonial or documentary) to OSC may obtain legal advice through the Labor Counselor from DA attorneys concerning their rights and obligations. This includes assistance at any interviews with OSC investigators. However, an attorney-client relationship will not be established unless the employee or military member

(1) Is suspected or accused by the OSC of committing a prohibited personnel practice or other illegal or improper act; and

(2) Has been assigned counsel by the DA General Counsel.

b. Any military member or employee who reasonably believes that he or she is suspected or has been accused by OSC of committing a prohibited personnel practice or other illegal or improper act may obtain legal representation from DA. The counsel assigned will be from another DOD component whenever a DA attorney is likely to face a conflict between the attorney's ethical obligation to the client and DA, or when the suspected or accused individual has requested representation from another DOD component. Outside legal counsel may be retained by DA on behalf of the member or employee under unusual circumstances and only with the personal approval of the DOD General Counsel.

c. The DA General Counsel will determine whether a conflict is likely to occur if a DA attorney is assigned to represent a military member or civilian. If the DA General Counsel determines a conflict may occur, or if the suspected or accused employee has requested representation from another DOD component, the DA General Counsel will seek the assistance of another General Counsel in obtaining representation outside DA.

2. Requests for Representation

a. To obtain legal representation, military members or civilian employees must

(1) Submit a written request for legal representation through the Labor and Employment Law Office, Office of the Judge Advocate General, Department of the Army, to

DA General Counsel, explaining the circumstances that justify legal representation. Copies of all process and pleadings served should accompany the request.

(2) Indicate whether private counsel, at personal expense, has been retained.

(3) Obtain written certification from their supervisor that

(a) They were acting within the scope of official duties; and

(b) DA has not initiated any adverse or disciplinary action against them for the conduct being investigated by the OSC.

b. Requests for DA legal representation must be approved by the DA General Counsel.

c. The conditions of legal representation must be explained and accepted in writing by the member or employee.

3. Limitations on Representation

a. DA will not provide legal representation with respect to a DA initiated disciplinary action against a civilian employee for committing or participating in a prohibited personnel practice or for engaging in illegal or improper conduct. This prohibition applies regardless of whether the participation or conduct is also the basis for the disciplinary action proposed by the OSC.

b. In certain situations, counsel provided by DA may be limited to representing the individual only with respect to some of the pending matters, if other specific matters of concern to the OSC or MSPB do not satisfy the requirements contained in this regulation.

4. Attorney-Client Relationship

a. An attorney-client relationship will be established and continued between the suspected or accused individual and assigned DA counsel.

b. In representing a DA employee or military member, the DA attorney designated as counsel will act as a vigorous advocate of the individual's legal interests before the OSC or MSPB. The attorney's professional responsibility to DA will be satisfied by fulfilling this responsibility to the employee or military member. Legal representation may be terminated only with the approval of the DA General Counsel and normally only on the basis of information not available at the time the attorney was assigned.

c. The attorney-client relationship may be terminated if the assigned DA counsel determines, with the approval of the DA General Counsel, that

(1) The military member or civilian employee was acting outside the scope of his or her official duties when engaging in the conduct that is the basis for the OSC investigation or charge; and

518.24

Creating a record.

b. Requests for clarification of both questions and answers are appropriate to avoid misinterpretation.

c. Means to ensure verifications of an interview by OSC investigators are appropriate, whether or not the military member or civilian employee is accompanied by counsel. Tape recorders may only be used for this purpose when—

(1) The recorder is used in full view. (2) All attendees are informed.

(3) The OSC investigator agrees to record the proceeding.

d. Any errors that appear in a written summary of an interview prepared by the investigator should be corrected before the member or employee signs the statement. The military member or civilian employee is not required to sign any written summary that is not completely accurate. A military member or civilian employee may receive a copy of the summary as a condition of signing.

Authentication.

7154; 10 U.S.C. 130, 1102, 2320-2321, 2328, 18 U.S.C. 798, 3500; 31 U.S.C. 3710; 35 U.S.C. 181188; 42 U.S.C. 2162; 44 U.S.C. 33; and Executive Order 12600.

SOURCE: 56 FR 48932, Sept. 26, 1991, unless otherwise noted.

Subpart A-General Provisions

REFERENCES

§ 518.1 References.

(a) Title 5, United States Code, section 552.

(b) DoD Directive 5400.7, "DoD Freedom of Information Act Program," May 13, 1988.

(c) Public Law 86-36, "National Security Information Exemption.”

(d) DoD Directive 5400.11, "Department of Defense Privacy Program, June 9, 1982.

(e) DoD 5400.11-R, “Department of Defense Privacy Program," August 1983, authorized by DoD Directive 5400.11, June 9, 1982.

(f) DoD Directive 5100.3, "Support of the Headquarters of Unified, Specified and Subordinate Commands," November 1, 1988.

(g) Title 5, United States Code, section 551, "Administrative Procedures Act."

(h) DoD 5200.1-R, "DoD Information Security Program Regulation," January 1987, authorized by DoD Directive 5200.1, June 7, 1982.

(i) Title 35, United States Code, section 181-188, "Patent Secrecy."

(j) Title 42, United States Code, section 2162, "Restricted Data and Formerly Restricted Data."

(k) Title 18, United States Code, section 98, "Communication Intelligence. (1) Title 18, United States Code, section 3500, "The Jencks Act."

(m) DoD Directive 5230.24, "Distribution Statements on Technical Documents," March 18, 1987.

(n) DoD Directive 5400.4, "Provision of Information to Congress," January 30, 1978.

(0) DoD Directive 7650.1, "General Accounting Office Access to Records,” August 26, 1982.

(p) ACP-121 (United States Supplement 1).

(q) Title 44, United States Code, chapter 33, "Disposal of Records."

(r) DoD Instruction 7230.7, "User Charges," January 29, 1985.

(s) DoD Directive 5000.11, "Data Elements and Data Codes Standardization Program," December 7, 1964.

(t) DoD Directive 7750.5, "Management and Control of Information Requirements," August 7, 1986.

(u) DoD 7220.9-M, "Department of Defense Accounting Manual," 1983, authorized by DOD Instruction 7220.9, October 22, 1981.

(v) DoD Directive 5230.25, "Withholding of Unclassified Technical Data From Public Disclosure," November 6, 1984.

(w) DoD Directive 5230.9, "Clearance of DoD Information for Public Release," April 2, 1982.

(x) DoD Directive 7650.2, "General Accounting Office Office Audits and Reports," July 19, 1985.

(y) Title 10, United States Code, section 2328, "Release of Technical Data under Freedom of Information Act: Recovery of Costs".

(z) Title 10, United States Code, section 130, "Authority to Withhold from Public Disclosure Certain Technical Data."

(aa) Title 10, United States Code, section 2320-2321, "Rights in Technical Data."

(bb) Title 10, United States Code, section 1102, "Confidentiality of Medical Quality Records: Qualified Immunity Participants."

(cc) DoD Federal Acquisition Regulation Supplement (DFARS), subpart 227.4, "Technical Data, Other Data, Computer Software and Copyrights," October 28, 1988.

(dd) Executive Order 12600, "Predisclosure Procedures for Confidential Commercial Information,” June 23, 1987.

(ee) Title 31, United States Code, section 3717, “Interest and Penalty on Claims."

(ff) Title 5, United States Code, section 552a, as amended, "The Privacy Act of 1974."

(gg) DoD 5000.12-M, "DoD Manual for Standard Data Elements," October 1986, authorized by DoD Instruction 5000.12, July 1989.