The Foreign Corrupt Practices Act when enacted directed the DOJ Attorney General to establish a procedure to provide responses to specific inquiries by those subject to the FCPA concerning conformance of their conduct with the DOJ’s “present enforcement policy.”
Pursuant to the governing regulations of the so-called DOJ Opinion Procedure Release Program, only “specified, prospective—not hypothetical—conduct” is subject to a DOJ opinion. While the DOJ’s opinion has no precedential value, its opinion that contemplated conduct conforms with the FCPA is entitled to a rebuttable presumption should an FCPA enforcement action be brought as a result of the contemplated conduct.
Recently, the DOJ issued this opinion procedure release (dated October 25, 2023). It is only the fourth FCPA opinion procedure release since 2014.
The Requestor was a U.S. based company and a “provider of training events and logistical support.”
The release provides the following background.
“According to the Request, Requestor was awarded a task order issued pursuant to its contract with an agency of the United States government (the “Agency”). This task order requires the Requestor to establish training events utilized by multiple U.S. government entities in which the Requestor provides, inter alia, logistical support for foreign government personnel. This logistical support, in turn, includes providing stipend payments to foreign officials who attend these training events. The stipends are intended to pay for meals that are not required to be served during the event, along with driving mileage costs for certain event participants. In connection with the above-described task order, Requestor proposes to pay certain stipend amounts to a United States Government Officer (“U.S. Officer”), which the U.S. Officer will subsequently deliver to foreign officials. The Requestor has represented, among other things, that:
The Agency has advised Requestor that the stipends are authorized by a particular United States law: the Foreign Assistance Act of 1961. Specifically, as represented by Requestor, Sections 129 and 636 authorize the stipend payments here.
All stipend payment amounts have been approved, or have been determined and set, by the U.S. Government. The amounts to be paid are either (i) calculated in relation to the Department of State’s Meals and Incidental Expenses (“M&IE”) rates, or (ii) otherwise dictated by the U.S. Embassy in a particular country, based on that country’s internal per diem rate.
Requestor’s proposed (and U.S. Government-accepted) stipend payments are between $8 and $40 per day, depending on the location of the training event.
Requestor maintains accounting records to document the payments, its costs, and any associated cash transactions, and Requestor provides all documentation and invoices currency payment amounts to the Agency.
Requestor received its task order, which calls for the at-issue payments, via a competitive selection process operated by the U.S. Government. Further, Requestor was not made aware of the names or other information of any foreign officials when it determined the approach and pricing for its task order proposal.
Requestor will not pay any funds to foreign officials directly but will instead provide currency only to the relevant U.S. Officer, who will then remit the amounts to the foreign officials directly.”
The release then contains the following DOJ analysis:
“The FCPA prohibits, inter alia, any domestic concern from corruptly giving or offering anything of value to any “foreign official” to assist “in obtaining or retaining business for or with, or directing any business to, any person.” 15 U.S.C. § 78dd-2(a)(1). “Corruptly” means an intent or desire to wrongfully influence the recipient. The “business purpose” test of the FCPA is met where the purpose of the payment or offer is to assist in obtaining and retaining business.
Based on all the facts and circumstances as represented by the Requestor, the Department does not presently intend to take any enforcement action under the anti-bribery provisions of the FCPA. Among other things, based on the information provided by the Requestor, the proposed expenditures reflect no corrupt intent of Requestor—which is demonstrated, in part, by the Agency’s belief that the Foreign Assistance Act authorizes the at-issue payments to foreign officials. Moreover, the payments themselves do not appear to be for the purpose of assisting Requestor in obtaining and retaining business.
To the contrary, based on the specific facts presented here, any payments to foreign officials are both called-for and ultimately delivered by agencies and/or personnel of the United States Government.”
In terms of process, the release notes:
“The Department received the Requestor’s request (“Request”) on or about September 20, 2023, and the Requestor submitted supplemental information on or about September 25, 2023.”
