After all the due diligence on the sales agents and representatives has been completed and they are ready to help you land that large international contract, what is the role of compliance? I would argue that compliance has as central a role to play in any international contract tender process as any other support group in your company; be they legal, tax, HR or another department. If you put compliance at the mix when preparing your response to RFP your company will be much better served than calling them after an issue arises during the contract execution. What are some of the areas that compliance can be of use during contract negotiations?
Subcontractors
It certainly should not surprise anyone to be made aware that your company is legally responsible for its subcontractors in the execution of a contract. This is also true in the anti-corruption context, whether under the Foreign Corrupt Practices Act (FCPA) or UK Bribery Act. This means that any direct tier subcontractor, which your company might use to complete an international contract, needs to be thoroughly vetted under your compliance regime as a foreign business partner. The reason for this is the same as an agent, subcontractors are acting on your company’s behalf, and hence your company is responsible for them. If you can perform due diligence on all parties which your company will need to execute the contract in the pre-contract phase, it will make things run more smoothly and efficiently after your company is awarded the contract and moves into the execution phase.
Travel to Company Facilities
As a part of the tender process, your company may be required to bring a foreign governmental official or group of officials to view your US operations. This can occur for a number of legitimate reasons, yet care must be followed under both the FCPA and Bribery Act. Your company can pay bona fide and reasonable expenses that are directly related to either (1) the promotion, demonstration or explanation of products or services; or (2) the execution or performance of a contract. Bona fide promotional expenses may also include trips to manufacturing facilities to observe your company’s production and quality control processes or to conduct inspection and testing called for in a contract of sale. There can also be to facilities where the training offers a legitimate opportunity to demonstrate products and services. There are some guidelines that need to be followed and they are as follows:
• Any reimbursement for air fare will be for economy class.
• Do not select the particular officials who will travel. That decision will be made solely by the foreign government.
• Only host the designated officials and not their spouses or family members.
• Pay all costs directly to the service providers; in the event that an expense requires reimbursement, you may do so, up to a modest daily minimum (e.g., $35), upon presentation of a written receipt.
• Any souvenirs you provide the visiting officials should reflect the business and/or logo and would be of nominal value, e.g., shirts or tote bags.
• Apart from the expenses identified above, do not compensate the foreign government or the officials for their visit, do not fund, organize, or host any other entertainment, side trips, or leisure activities for the officials, or provide the officials with any stipend or spending money.
• The training costs and expenses will be only those necessary and reasonable to educate the visiting officials about the operation of your company.
One of the keys is having any such travel approved by your Compliance Department prior to the travel actually occurring. In addition to the above guidelines there should be a written agenda, reviewed and approved by the compliance representative before the travel occurs. Lastly, all costs associated with the travel and entertainment must be recorded in the Company’s books and records as cost of sales and not an operating expense. The written agenda approved by the compliance representative needs to be maintained and verified by after-action reports so that the entire process is documented.
Testing and Evaluation
If your company manufactures a product, your international customer may well ask to test and evaluate products as a part of the contract tender process. These products may only be provided to support such opportunities. The testing and evaluation of samples should only occur if required by a public tender. Exceptions may be made if the samples are formally requested in writing by the potential government customer in connection with a legitimate contract opportunity. Care should be made so that any product samples are delivered to the foreign governmental agency issuing the tender, not to an individual employee or official, or to a third party. There should be a formal written request identifying the specific number of samples to be tested and evaluated from the potential government customer. The number of samples requested should be reasonable in light of the overall potential contract. All costs associated with the provisioning of sample products for testing and evaluation must be recorded in the Company’s books and records as cost of sales and not an operating expense.
Evaluation of Compliance Risk
Just as other types of risk should be evaluated in any internal contract review process, the compliance risks should also be evaluated. What is the Transparency International – Corruption Perceptions Index ranking of the country or government where the contract will be executed? Are there other sources which can be accessed, such as World Check’s Country Check rating, the Mintz Group’s heat map “Where the Bribes Are”, or the FCPA Database, which aggregates several different types of information but specifically the national anti-corruption and anti-bribery laws applicable to local jurisdictions across the globe. Using these sources and perhaps others, you can put together not only a risk evaluation plan but also a risk mitigation plan for management which they can take into account when the decision of Bid/No Bid or pricing is finalized.
The Compliance Department is more than simply the group which performs the due diligence, trains on compliance and responds to inquiries. It can, and should, play an active role in landing contracts. A mature compliance program can be a great benefit for a company, not only in evaluating risk from the compliance perspective but also preparing the necessary steps so that if a contact is awarded, it can be executed in a time efficient manner. But it must have a seat at the table.
This publication contains general information only and is based on the experiences and research of the author. The author is not, by means of this publication, rendering business, legal advice, or other professional advice or services. This publication is not a substitute for such legal advice or services, nor should it be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified legal advisor. The author, his affiliates, and related entities shall not be responsible for any loss sustained by any person or entity that relies on this publication. The Author gives his permission to link, post, distribute, or reference this article for any lawful purpose, provided attribution is made to the author. The author can be reached at tfox@tfoxlaw.com.
© Thomas R. Fox, 2012
FCPA Compliance and Ethics Blog 