In its first Foreign Corrupt Practices Act enforcement action of 2015, the SEC got creative by agreeing to a deferred prosecution agreement with a legal entity that has not existed since April 2011 and bringing a related administrative action against an individual who agreed to resolve the action without admitting or denying the SEC’s findings. Never before has FCPA enforcement seen such a combination.
While the DOJ frequently uses NPA and DPAs to resolve corporate FCPA enforcement actions, last week’s enforcement action is only the third time the SEC has used an NPA or DPA to resolve an FCPA enforcement action. The other two instances are Tenaris  (DPA in 2011) and Ralph Lauren  (NPA in 2013).
The enforcement action was against PBSJ Corporation (PBSJ), an entity acquired in October 1, 2010 by WS Atkins plc (“Atkins”) as well as Walid Hatoum, a former executive of PBS&J International, Inc. (“PBS&J Int’l, a wholly-owned subsidiary of PBSJ) concerning a relationship with an alleged Qatari official in connection with projects in Qatar and Morocco.
As highlighted in this  prior post, PBSJ voluntarily disclosed its FCPA scrutiny in December 2009.
Post-acquisition, PBSJ became an indirect wholly-owned subsidiary of Atkins and in April 2011, PBSJ changed its name to The Atkins North America Holdings Corporation.
In summary fashion, the two-year DPA  “alleges” that:
“The PBSJ Corporation … on or about 2009, violated [the FCPA’s anti-bribery provisions, books and records and internal controls provisions] by making offers and promises of payment and other benefits to certain Qatari government officials in order to secure two multi-million dollar development contracts in Qatar and Morocco and by failing to keep accurate books and records relating to those transactions, and by failing to maintain internal accounting controls to ensure the transactions were recorded accurately and that financial statements were prepared in conformity with generally accepted accounting principles.”
According to the DPA:
“PBS&J International, Inc. (“PBS&J Int’l”) was a wholly-owned subsidiary of PBSJ headquartered and incorporated in Florida. PBS&J Int’l was a provider of engineering, architectural and planning services in international markets, including the Middle East. PBS&J Int’l currently is a subsidiary of Atkins.
The former President of PBS&J lnt’l, Walid Hatoum (“Hatoum”), is a United States citizen who initially worked for PBSJ as an engineer from 1986 until 1990. In February 2009, Hatoum was rehired to join PBS&J Int’l as its Director of lnternational Marketing, even though his prior employment file at PBSJ had been marked “Ineligible for Rehire .” Although Hatoum did not formally join PBS&J Int’l until April 2009, he assisted PBS&J lnt’l with identifying projects as early as November 2008. Hatoum was promoted to President ofPBS&J Int’l in mid-June 2009, and became an officer of PBSJ at the same time.
During 2009, PBS&J Int’l won two multi-million dollar development contracts. One contract was for work in Qatar and the other was for work in Morocco. Both were competitively solicited and approved by the Qatari Diar Real Estate Investment Company (“Qatari Diar”). Qatari Diar was established by the Qatari government to coordinate the country’s real estate development.
PBSJ and PBS&J Int’l, through Hatoum, offered bribes to the then-Director of International Projects at Qatari Diar (“Foreign Official”), to secure Qatari government contracts by planning to funnel funds to a local company the Foreign Official owned and, controlled (“Local Partner”). Foreign Official, a former business colleague of Hatoum’s at another U.S. engineering firm, worked for Qatari Diar throughout 2009, until his resignation from Qatari Diar on December 21, 2009. Prior to joining PBSJ, Hatoum and Foreign Official discussed directing business in the Middle East to Local Partner.
In return, Foreign Official provided PBS&J Int’l with access to confidential sealed-bid information and pricing information on the two government contracts that helped PBS&J Int’l tender bids that had a greater likelihood of being awarded, including a government contract for which the Foreign Official was the project manager.”
Under the heading “Offers and Promises Made to Foreign Officials,” the DPA contains two subsections: “LRT Project in Qatar” and “Design Contract in Morocco.”
As to Qatar, the DPA states:
“In November and December 2008, Hatoum began discussing potential employment with PBSJ. Even before he received a formal employment contract, Hatoum met with PBS&J Int’l to discuss opportunities to grow PBS&J Int’l business in the Middle East. Hatoum discussed projects involving Qatari Diar, including a light rail transit project in Qatar (“the LRT Project”).
In January 2009, Hatoum arranged for Foreign Official’s brother, through Local Partner, to introduce PBS&J Int’l to Qatari Diar senior executives involved in the LRT Project. Soon after that meeting, PBS&J Int’l decided to bid on the LRT Project. PBS&J Int’l added Foreign Official’s company, Local Partner, on its proposal team as a subcontractor to handle local operations such as hiring local labor, as well as complying with bonding and insurance requirements. In return, Hatoum and PBS&J Int’l agreed to pay the Foreign Official, through Local Partner, 40% of the profits realized from any LRT Project contract as well as reimburse its direct costs. The remaining profits were to be split between PBS&J Int’l (40%) and another U.S.-based subcontractor (20%), which
would perform all of the planning and engineering services for the LRT project.
At that time, Hatoum was the only person at PBS&J Int’l who had any knowledge about Foreign Official’s ownership interest in Local Partner. Had PBSJ conducted meaningful due diligence at that time, it would have discovered Foreign Official’s dual role as both government official and third-party owner/operator of Local Partner.
During the bidding process, Foreign Official gave confidential sealed bid information to PBS&J Int’l to assist it in winning the LRT Project in return for promised payments. Foreign Official also made strategic and technical decisions on many aspects of the LRT Project that favored PBS&J Int’l with Hatoum’s knowledge.
Foreign Official used a Local Partner alias to communicate that information to Hatoum and other PBSJ and PBS&J Int’l employees while disguising his involvement on multiple conference calls and in dozens of emails to the United States. Hatoum was aware that Foreign Official was using the alias in communications with PBSJ employees, officers, and directors and with Qatari Diar. Hatoum flew to the Middle East to meet with Qatari Diar officials, including Foreign Official, to discuss PBS&J Int’l’ s qualifications for the LRT Project. At the meeting, neither Foreign Official nor Hatoum informed Qatari Diar that Foreign Official was working for Local Partner and providing confidential information and other assistance to help PBS&J Int’l win the contracts.
Following its initial submission, PBS&J Int’l revised its bid, based on information and guidance provided by the Foreign Official, to best position itself to win the LRT Project and to withstand possible challenges from competitors. On or about August 3, 2009, Qatari Diar awarded the LRT Project contract worth approximately $35.6 million to PBS&J Int’l.
After the award, PBS&J Int’l opened a joint account with Local Partner that was accessible to Foreign Official’s wife. PBS&J Int’l also authorized a four-year letter of credit relating to a bank guarantee in Qatar. The letter of credit was a precondition for receipt of the first contract payment by Qatari Diar to PBS&J Int’l, an up front, 10% (approximately $3.6 million) payment, which was deposited into the joint account.
Once the award was received, Hatoum offered Foreign Official an “agency fee” to Local Partner for 1.8% of the LRT Project contract amount (equivalent to approximately $640,000). Additionally, PBS&J Int’l agreed to pay half of the salary of Foreign Official’s wife, who worked for Local Partner.”
Under the sub-heading “Design Contract in Morocco” the DPA states:
“In addition to the LRT Project, Qatari Diar opened a Morocco hotel resort development (“Morocco Project”) for competitive bid. On August 7, 2009, PBS&J Int’l emailed its Statement of Qualifications for the design contract to Foreign Official, the Qatari Diar project manager for the Morocco Project.
In October 2009, Hatoum offered payment to Foreign Official in the form of an agency fee to Local Partner to secure the Morocco Project. The Morocco Project was worth approximately $25 million to PBS&J Int’l, of which the Foreign Official was offered an agency fee of 3% of the contract amount, which equates to approximately $750,000. Hatoum instructed a PBS&J Int’l employee to hide the agency fee within the company’s bid proposal by inflating other components of the offer for the Morocco Project.
Foreign Official attended meetings with PBS&J Int’l employees to discuss the project but neither Foreign Official nor Hatoum told the employees that he was working for Local Partner. At the same time, Foreign Official, using his Local Partner alias, reviewed and made changes to PBS&J Int’l’ s original bid offer via email and phone. He also made key technical and strategic proposal decisions throughout the bidding process and instructed PBS&J Int’ l to lower its offer to a specific dollar amount. By doing so, he ensured PBS&J Int’l’s final bid had a greater likelihood of being approved by Qatari Diar. On or around October 19, 2009, Qatari Diar informed PBS&J Int’l that it was awarded the Morocco Project.”
Under the heading “Red Flags,” the DPA states:
“PBSJ and PBS&J Int’l officers and employees ignored multiple red flags that should have led them to uncover the payment scheme. For example, PBS&J Int’l and PBSJ employees knew that Local Partner was providing them with confidential sealed bid information. Hatoum also informed the employees that he was obtaining information from someone that Hatoum described as a “good friend” and “top executive” at Qatari Diar. Before PBS&J Int’l submitted its bid for the Morocco Project, a PBS&J Int’l officer learned that the husband of one of the Local Partner employees was a government official working on the Morocco Project. The PBSJ Int’l officer learned of Foreign Official’s role while attending dinner with Hatoum, Foreign Official and the Foreign Official’s wife. In addition, a PBSJ employee knew that “agency fees” to Local Partner were disguised as legitimate costs within the Morocco Project bid.”
Under the heading “Discovery of the Payment Scheme,” the DPA states:
“Shortly after PBSJ Int’l was awarded the Morocco Project contract, PBSJ’ s former Chief Operating Officer commented to PBSJ’s then-general counsel that PBS&J Int’l was successful in winning two contracts in the Middle East within a fairly short period of time. PBSJ’s then-general counsel asked Hatoum how he was able to win the LRT and Morocco Project contracts over companies with far more international experience. Hatoum told PBSJ’s then-general counsel PBSJ offered “agency fees” in order to win the projects and, when asked, admitted there “would be a problem” if the agency fees were not paid. PBSJ’ s then-general counsel immediately launched an investigation of this issue.
Three weeks later, in November 2009, a Qatari government official informed Hatoum and the then-President of PBSJ that Qatari Diar had discovered Foreign Official’s involvement in Local Partner and was rescinding PBS&J Int’l’s contract for the Morocco Project. Hatoum then secretly made an offer of employment to a second Qatari foreign official in return for influencing Qatari Diar to reinstate the contract. However, Qatari Diar refused to reinstate the contract and did not provide PBS&J Int’l any proceeds for the project. PBSJ suspended Hatoum in December 2009. Hatoum also began deleting emails and other records.
PBS&J Int’l and Qatari Diar negotiated a termination of the LRT Project contract effective December 31,2009. In January 2010, Qatari Diar entered into a bridge contract with PBS&J Int’l to continue work on the LRT Project (the “Bridge Contract”) until a replacement company could be found. Ultimately, the period of performance on the Bridge Contract was 16 months . PBS&J Int’l earned $2,892,504 in profits on the Bridge Contract.
PBSJ and Qatari Diar caught Hatoum’s scheme before any of the offered and authorized amounts were paid.”
Under the heading “Failure to Maintain Adequate Internal Controls,” the DPA states:
“PBSJ failed to devise and maintain an adequate system of internal accounting controls. The violations involved conduct orchestrated by a high level manager at PBS&J Int’l and numerous red flags were overlooked by PBSJ and PBS&J Int’l managers and employees. Employees were aware that they were receiving confidential information in a sealed-bid process from a foreign official and that their bids were inflated to conceal payments to Local Partner. Over a million dollars in payments were offered and authorized to Foreign Official through Local Partner without a system of internal accounting controls to identify and detect the improper transactions. PBS&J Int’l agreed to pay Local Partner 40% of the LRT Project profits without subjecting Local Partner or its employees to any meaningful due diligence. PBS&J Int’l did not request a due diligence questionnaire from Local Partner before it initiated its investigation into the matter, and asked no questions about Local Partner’s purported financial statements, work experience, ability to perform the work it was supposed to do under the contract, external auditors, or owners, despite knowing that a Local Partner employee was married to a government official at Qatari Diar. In fact, during the period, PBSJ considered but declined adopting due diligence controls over its contractors and joint venture partners.
As a result, PBS&J Int’l, through Hatoum, offered and authorized bribes to Foreign Official through Local Partner totaling approximately $1,390,000 to secure the LRT and Morocco Projects, plus a portion of any profits Local Partner realized from the LRT Project and partial salary to Foreign Official ‘s wife.
Although PBSJ offered FCPA training at PBSJ and PBS&J Int’l, the company did not ensure that its employees take the training prior to working on international matters. As a result, key PBS&J Int’l personnel on the LRT and Morocco Projects received little, if any, FCPA training during the relevant period. Hatoum received annual FCPA training from his previous employer. Hatoum was offered FCPA training by PBSJ on his first day of official employment in April 2009, but did not take it. Hatoum did not receive training from PBSJ until after Qatari Diar cancelled the Morocco Project in November 2009.”
Under the heading “Failure to Maintain Books and Records,” the DPA states:
“PBSJ, directly and through PBS&J Int’l, failed to make and keep books, records, and accounts which accurately and fairly reflected PBS&J Int’l’s transactions with Local Partner intended for Foreign Official. Some of the payments offered and authorized to Foreign Official were concealed within other, legitimate categories of costs within bids, while others were improperly described in the books and records as legitimate transaction costs. PBSJ failed to accurately disclose in its books and records that the joint account entered into with Local Partner would benefit Foreign Official.”
Under the heading “Self-Report, Remediation, and Cooperation,” the DPA states:
“PBSJ conducted an internal investigation. PBSJ self-reported its preliminary findings of the conduct to staff of the Division of Enforcement (“Division”) and the Department of Justice (“DOJ”).
PBSJ also took immediate steps to end the misconduct. PBSJ suspended Hatoum in December 2009 and later reprimanded four other employees that missed red flags that should have alerted them to the illegal activity. PBSJ also withdrew all proposals in the Middle East initiated during Hatoum’s tenure with PBS&J Int’l. PBSJ reviewed its preexisting compliance program and revised and enhanced its compliance program, including, in part, adoption of: (1) a detailed due diligence questionnaire for contractors, sponsors, and agents; (2) an enhanced FCP A compliance program with mandatory annual training for employees and third-party agents; (3) an international compliance oversight committee at the corporate level; and (4) an annual FCPA compliance audit.
PBSJ ultimately provided substantial cooperation to the staff of the Division, including: voluntarily producing documents and disclosing information to the staff; voluntarily making witnesses available for interviews; and allowing its then-general counsel to interview with staff; and providing factual chronologies, timelines, internal interview summaries, and full forensic images of data.”
The DPA contains a so-called muzzle clause in which PBSJ and Atkins is prohibited from “denying, directly or indirectly, any aspect of [DPA] or creating the impression that the statements [in the DPA] are without factual basis.
In this  release, Kara Brockmeyer (Chief of the SEC’s FCPA Unit) stated:
“Hatoum offered and authorized nearly $1.4 million in bribes disguised as ‘agency fees’ intended for a foreign official who used an alias to communicate confidential information that assisted PBSJ. PBSJ ignored multiple red flags that should have enabled other officers and employees to uncover the bribery scheme at an earlier stage. But once discovered, the company self-reported the potential FCPA violations and cooperated substantially.”
As noted in the release:
“Under the DPA, PBSJ agreed to pay disgorgement and interest of $3,032,875 and a penalty of $375,000. PBSJ took quick steps to end the misconduct after self-reporting to the SEC, and the company voluntarily made witnesses available for interviews and provided factual chronologies, timelines, internal summaries, and full forensic images to cooperate with the SEC’s investigation.”
Based on the same core conduct “alleged” in the DPA, the SEC also brought an administrative action against Hatoum.
In summary, the Administrative Order  states under the heading “Hatoum Caused PBSJ’s Inaccurate Books and Records” as follows.
“Hatoum authorized illicit payments to Foreign Official that were not accurately and fairly reflected on PBSJ’s books and records. Hatoum directed subordinates to conceal some of the payments he offered and authorized to Foreign Official within bids. Other offers and promises to pay authorized by Hatoum to Foreign Official were improperly described in the books and records as legitimate transaction costs with his knowledge.”
Under the heading “Hatoum Caused PBSJ’s Internal Accounting Control Failure,” the order states:
“On April 22, 2009, Hatoum signed a “Business Conduct Standards” agreement for PBSJ employees in which he agreed that “I will neither accept nor give bribes or kickbacks of any value for services or favorable treatment for contracts.” As a high level manager at PBS&J Int’l and later as an officer of PBSJ, Hatoum was responsible for maintaining and ensuring compliance with PBSJ’s internal accounting controls at PBS&J Int’l. Hatoum, however, repeatedly exploited the company’s internal accounting control deficiencies to offer and authorize payments to Foreign Official through Local Partner totaling approximately $1,390,000 to secure the LRT and Morocco Projects, plus 40% of any profits realized from the LRT Project and partial salary to Foreign Official’s wife. Hatoum instructed subordinates to inflate PBS&J Int’l bids by concealing payments to Local Partner intended for Foreign Official. Hatoum took advantage of PBSJ’s accounting controls system by introducing Local Partner as a “legitimate” potential partner for the LRT Project and authorized a subordinate to execute an agreement to pay Local Partner 40% of the LRT Project profits without subjecting Local Partner or its employees to any meaningful due diligence. Hatoum also knowingly executed – and caused a PBS&J Int’l employee to send a questionnaire requesting advocacy assistance from the United States Department of Commerce that included false representations about Local Partner and PBS&J Int’l. Although Hatoum did not participate in PBSJ’s FCPA training until after the scheme was uncovered, Hatoum was aware of the prohibitions of the FCPA from annual FCPA training that he received from his former employer.”
As noted in the SEC’s release:
“The SEC’s order against Hatoum finds that he violated the anti-bribery, internal accounting controls, books and records, and false records provisions of the Securities Exchange Act of 1934. Without admitting or denying the findings, Hatoum agreed to pay a penalty of $50,000.”
PBSJ and Atkins were represented by Mark Schnapp (Greenberg Traurig). Hatoum was represented by Michael Lamont of Wiand Guerra King.