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Is Your Construction Project a Victim of Fraud?

Jeff Matthews, CPA, CFE Partner-in-Charge, Forensics and Litigation Services

1. I Changed Her Oil; She Changed my Life2. I Fell In A Pile Of You And Got Love All Over Me3. She Got the Ring and I Got the Finger4. My John Deere Was Breaking Your Field, While Your Dear John Was

Breaking My Heart5. I'm The Only Hell My Mama Ever Raised6. She's Actin' Single and I'm Drinkin' Doubles7. I'm So Miserable Without You, It's Like Having You Here8. Get Your Biscuits In The Oven And Your Buns In The Bed9. I Still Miss You, Baby, But My Aim's Gettin' Better10. Her Teeth Were Stained, But Her Heart Was Pure

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Enjoying Music City

1. Today’s Culture and Environment2. Case Study3. Initiatives to Combat Construction Fraud4. Considerations in Launching the Audit5. Targeting the Appropriate Areas of Risk6. Interpreting results

AgendaIs Your Construction Project a Victim of Fraud?

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► According to the Office of Management and Budget (OMB), the federal government awarded the state governments federal grants totaling more than $710 billion in 2017.

► In 2017, the Government Accountability Office announced it found $141 billion in improper payments, of which $233 million was estimated to be related to construction projects.

► Although the Federal Government generally provides funding, the States and local governments actually award contracts which makes the States and local authorities critically important, as they are the first line of defense.

Today’s Culture and Environment

When it comes to fraud in the public sector, the following issues have become common:

► Persons convicted of fraud were generally trusted employees

► Perpetrated fraud in the U.S. is virtually equal between men and women (54% men – 46% women) BUT median loss by men is almost 225% more

► Median duration – amount of time from when fraud commenced until it was detected was 18 months

► Often cash given “under the table”

The Truth About Fraud Today

Consequences of Construction Fraud

The consequences of the fraud can be staggering, with millions potentially siphoned from government agencies and it budget. Such frauds result in:

► Project delays► Increased cost and project shortfalls► Inferior developments and structures ► High turnover amongst vendors and employees► Opportunity cost► Lost in public trust

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CASE STUDY

City engaged contractor to complete three large P3 construction projects:

1. A park and recreation field - $1.5m; completed2. A parks and recreation center - $9.7m; completed3. A professional sports arena - $60m; in progress

After a new mayor and city council were elected, the City determined prior leadership had not adequately monitored the projects, and requested we exercised the right to audit clauses.

The first two projects were fixed-fee arrangements, and the contractor refused to provide access to books and records without specific allegations.

CASE STUDY

The $60 million arena was set to open in November 2016. A provision in the contract stated that it would be terminated if not opened by November 2017. Our analysis began in January 2018.

Our initial observations: • The original contract was for approximately $60m and required a $4m

contribution from the city. • Multiple change orders for “upgrades” increased project costs to $83m and

required an additional $8m in from the city.• The city received no additional rent or projected income, despite the

significant increase in funds.

By entering into a contract with the management company and not the subcontractor directly, the city essentially forfeited its right to audit the general contractor.

Potential overcharges totaling $3.2M were identified due to inaccurate labor rates, duplicate billings for materials, and improper payments.

The delay in the Arena project had a significant impact on the local tax payers. The City has made three Bond payments to cover its Debt Service Requirements for a total amount of $5,583,125, with no income to offset the expense.

CASE STUDYFindings and Results

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1. What is the vendor’s history with providing goods and services?2. Is there a history of litigation involved with the vendor, or of projects of this sort?3. What items/elements within the statement of work will be outsourced or sub-

contracted?4. What performance metrics are in place to ensure contract compliance?5. And the remedies for not?6. What are your responsibilities?

It starts with on-boarding

Initiatives to Combat Construction Fraud

Assess Internal Controls1. Bid process2. Project scope and change orders 3. Jobsite management 4. Hotline or anonymous reporting mechanism5. Right to audit

Initiatives to Combat Construction FraudLet’s talk about your end – what can you control?

► Understand conflicts of interest; affirm all bidders do too!

► Multiple business operating out of the same office

► Difficulty in finding background information on company or its operators• Lack of references• Online anonymity

Initiatives to Combat Construction Fraud1. Bid Process – vetting!

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► Does the last bidder always win?• cheapest?• same?

► Do other bidders frequently appear as subcontractors on projects?

► What change orders are anticipated? Guaranteed?

1. Bid Process – vetting!

Initiatives to Combat Construction Fraud

► Changes for scope of work with no defined necessity

► Excessive charges with no support► Assignment of work to new

subcontractors► Material changes in specifications► Lack of responsible party

• Who ordered?• Caused?• Required?

2. Project scope and change orders

Initiatives to Combat Construction Fraud

Do you have the capacity to engage in:► Field visits► Process and procedure reviews► Vendor surveillance► Interviews with vendor employees and

subcontractors

Initiatives to Combat Construction Fraud3. Job Site Management 

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4. Hotline and Reporting Mechanisms

Initiatives to Combat Construction Fraud

► Awareness• Employees• Vendors (current and former)• Customers• Competitors

► Confidence• Resolutions• Surveys

► Training• Annually• Tracked certification

Initiatives to Combat Construction Fraud4. Hotline and Reporting Mechanisms

►Rights to access and analyze books and accounts and confirm performance and accuracy of the licensees records. Provides: • Access by a third party or group of investors• Remedies, such as payment of the legal and audit expenses of the

offended party.• Process to resolve disputes to avoid unnecessary litigation that may

harm the future of the agreement between the parties.

5. Right to Audit Clauses

Initiatives to Combat Construction Fraud

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► The following issues should be considered for inclusion:• Is notice of an audit required? If so, how much time is

appropriate?• Who bears the costs of the audit? Will there be a cost-shifting

scheme based on findings?• What is the scope of the audit?• How will the data (and other) privacy concerns be addressed?• How frequently can audit occur?• Will employees be made available for interviews?• What accounting files will be made available electronically or in

hard – copy master payee files, general ledger, internal audit materials, cash controls, travel expenses?

5. Right to Audit Clauses (cont’d)

Initiatives to Combat Construction Fraud

• Will electronically stored information be made available for review during audit?

• Can the auditor make site visits?• Who chooses the auditors?• Is there a time limit on the amount of time an audit can take?• How long must the relevant records be retained?• What can trigger an audit?• How and when should materials provided pursuant to the audit be

returned once the audit is complete?• Will the audited company be notified of communications with DOJ

and SEC by the auditor? If so, can the audited company review the materials that will be shared with the Government?

Initiatives to Combat Construction Fraud5. Right to Audit Clauses (cont’d)

► you anticipate litigation► you have sufficient and qualified resources to

undertake the audit.► there have been previous audits and/or

unresolved issues ► you have requested, or they can provide sufficient

documentation to compile a work plan► Local/International concerns exist, such as:

• Holidays• Employee rights• Legal rights• Language/Cultural• Health concerns

Considerations in Launching the AuditBefore launching a third‐party audit, determine whether:

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► Audited financial statements► Significant issues, complaints, lawsuits► Qualifications and experience of those significant to

the vendor’s operations and yours► Their use of third parties, contractors or others► Evidence of regulatory compliance► With careful consideration to those areas of specific

concern

Document requests should be extensive:

Considerations in Launching the Audit

► Labor• Lack of detail – omission of worker level and/or

department • Pre-printed time sheets that omits non-work time• False invoices or inflated rates that do not tie to

contracts or work orders• Erroneous totals or line items, and roll forward errors• Use of undocumented workers

► Employee Travel• Hourly wages paid for travel time• Mileage• Excessive meals, entertainment, training or benefits• Overhead/administrative duplication

Most common risks:

Targeting The Appropriate Areas of Risk

► Materials• No supporting documentation or photocopies of

certifications or deliveries• Irregularities in signatures, dates or quantities on

documentation• Sequential or inconsistent numbering

► Equipment• Delivered early or while under repair• Held after use, but continued to incur charges• Rentals in addition to actuals• Small tools

Targeting The Appropriate Areas of Risk

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► Compliance• Contractors misrepresent its standing as DBE (minority

owned) to win contract awards• Prime contractor always uses the same minority-

owned entity• Noncompliance with federal regulations and

misrepresentation of business status• False Claims Act violations

Targeting The Appropriate Areas of Risk

► Unreasonable support on behalf of project owners► Constant quality and quantity issues► Unusual delays in providing documentation► Incomplete responses to due diligence questionnaires► Refusal to provide certifications or agree to policies► Close relationship between third party and

government official or entity► Attorneys taking a “management” role

Always be on alert to potential conflicts of interests and bribes/kickbacks

Interpreting Results

► Asset Management Fees• Fees to manage the investment portfolio

► Management Fees• Fees to manage the facility

► Service Contracts• Maintenance, accounting, legal, etc• Often conflicts with management fees

Opportunities for abuse can continue upon completion

Post-Construction Disputes

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FOCUS on the agreements, which often times give the general partner the ability to:► Have unlimited power and authority to take any action in connection with the

management of the conduct of the business and the affairs of the partnership.

► Enter into agreements with other entities, affiliated or otherwise, for loans, purchases, or sales of partnership property.

► Finance activities from partnership capital or by borrowing money from third parties, all on any terms and conditions the general partner deems appropriate.

Post-Construction Disputes

All services shall be provided on a competitive contract basis at the usual rates prevailing in the area. If it so desires, Operator may employ its own tools and equipment, but its charges shall not exceed the prevailing rates in the area. All work performed or materials supplied by affiliates or related parties of Operator shall be performed or supplied at competitive rates and in accordance with customs and standards prevailing in the industry.

Post-Construction Disputes

• All services provided on a competitive contract basis at the usual rates prevailing in the area. – Competitive with whom?– Rates for what?

• If it so desires– No oversite or approval needed for using its own tools, equipment, etc.– Overhead

Post-Construction Disputes

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6.7 Transactions with Affiliates. No Partner, Affiliate of a Partner or any owner of a Founder Limited Partner, may enter into (or materially amend the terms of) any transaction with, or provide services to, the Partnership, directly or directly [sic], unless the rate of compensation to be paid for any such transaction or services are not greater than the amount paid for similar services in arm’s length transactions between unrelated parties (and the other terms thereof are equivalent to arm’s length terms), and a Majority in Interest of the Partners have consented to such transaction or services.

Post-Construction Disputes

Notwithstanding the prior sentence, the following services and transactions will not require consent of the Partners:• Development and management services provided by or through the Project

Manager;• Payment of the Expense Advance to the Project Manager; • Engineering and related services provided by or through COMPANY, a Texas

limited liability company; and• Any business established by the General Partner or an Affiliate of the General

Partner or its owners, which is established for the primary purpose of purchasing equipment, supplies, furniture or inventory for the Project at rates lower than those generally available to the Partnership in the marketplace.

Post-Construction Disputes

1. Conflicting terms – “no partner shall enter”, yet the very next paragraph provides an out:• “no Partner approval is required for the following:”

2. Ambiguities - Rates for related are commensurate with similar arms-length transactions. “Usual rates” “Standard terms”– As determined by whom?– How is this verified?

3. Generic terms – Development and “management services”– Engineering and “related services”– “Any business” purchasing…….

4. If all is fails “I can use my own”.– Who approves beforehand?

Avoiding “Land Mines”Joint Ventures/Partnerships

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Parting Shots - TipsBe Careful

• Identify “reporting” risks, both internal and external• Acknowledge the dependency on the vendor• Establish a “plan b”

Be Responsive • Monitor internal complaints and react swiftly as they come in• Get the right people involved

Be Disciplined • Develop an audit plan that is repeatable and defendable• Adhere to your investigative protocols• Do not lose sight of issues related to business implications, privilege and

potential self-reporting obligations

Be Committed • It is not enough to implement the framework of a system• Companies must devote appropriate resources to compliance

programs and obtain buy-in of key stakeholders

Jeff Matthews, CPA, CFEPartner-in-Charge, Forensics and Litigation ServicesJeff.Matthews@weaver.com | 972.448.9280

Discussion and Additional Q&A

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