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FCPA Compliance Report

Tom Fox has practiced law in Houston for 30 years and now brings you the FCPA Compliance and Ethics Report. Learn the latest in anti-corruption and anti-bribery compliance and international transaction issues, as well as business solutions to compliance problems.
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Jun 4, 2018

I continue a five-part series on Suspension and Debarment, with Rodney A. Grandon, Managing Director at Affiliated Monitors, Inc., (AMI) the sponsor of this series. During a 27-year career with the US military and government, Grandon served as the Air Force’s Suspending and Debarring Official as well as a wide variety of other functions which gives him subject matter expertise into issues surrounding this topic. During the series I will be exploring several topics with Grandon including:

Part 1-Introduction to Suspension and Debarment;

Part 2-What is the difference between Suspension and Debarment?

Part 3-What is the convergence between Suspension & Debarment and the FCPA?

Part 4-What is a present responsibility determination?

Part 5-Remedies and Compliance in Suspension and Debarment.

Today, we discuss some of the convergence between the Foreign Corrupt Practices Act (FCPA) and suspension and debarment. The bottom line is that conduct which violates the FCPA can become the basis for a suspension or debarment, even if the conduct is outside a contract with the Federal government.

Debarment may be based on actions so serious or compelling that it affects the present responsibility of the contractor or subcontractor. Grandon noted, “there is some fairly broad language as to what the basis for a suspension and debarment can be.” This means that in the context of anti-corruption laws, it can be the basis of a suspension or debarment, further meaning that under the FCPA, the conduct to incur a violation does not require actual bribery or corruption. It can be “bad record keeping associated with that and the context of engagements with foreign officials, the activity that would generally fall outside the realm of a public contract or subcontract. From the suspension and debarment perspective, it is critical to recognize here that the standard definition for contractor issues from the rule does not require that the entity actually has a contract in place.”

In the context of suspension and debarment, Grandon noted, “It’s just simply that they may have a contract or may compete at some point for a contract that they may become a contractor, so essentially any business activity that provides goods or services that the federal government may be interested in acquiring potentially could fall within the definition of contract. When one considers the FCPA, practically any business would fall within that definition of contractor. These sanctions are not limited to contractors that have existing contracts and they are not limited to misconduct that occurs in the context of a federal contract. In my experience, I have dealt with several matters involving violations of the FCPA activity that was clearly outside the scope of a federal contract or subcontract, but where the conduct was committed by a very large federal contractors.”

Another angle to the convergence of FCPA and suspension and debarment was raised by two authors, then South Texas College of Law student Nicholas J. Wagoner and Professor Drury D. Stevenson in a piece entitled “FCPA Sanctions: Too Big to Debar?”, where they posited the question: “Are certain private contractors too big to debar?” Their conclusion is “It appears so” and the authors stated, “The federal government is too dependent on a particular set of large, private-sector corporations for equipment and services. In addition to the virtual immunity from debarment enjoyed by these firms when they violate the FCPA, the fines imposed for engaging in foreign corrupt practices comprise a tiny fraction of the potential revenue generated by lucrative contracts with the U.S. and foreign states. When discounted by the low probability of detection, these sanctions are far too low to deter unlawful activity.” One solution raised by the authors for the issues regarding fines and penalties for companies which violate the FCPA, is debarment and suspension. They urge that debarment would be a significant deterrent for US government contractors and would “increase compliance with the FCPA.” The authors also suggest that the threat of debarment as a penalty would increase self-disclosure without any increased enforcement efforts if companies received the “meaningful reward” of a lesser penalty through self-disclosure.

Grandon reiterated that a wide variety of conduct can form the basis of a suspension or debarment. It can by “any fraud or criminal offense in the context of obtaining, attempting to attain, forming a public contract or subcontract that is within the scope of antitrust statutes, violations, whether federal or state embezzlement, theft forgery, ossification or destruction of records, false statements, tax evasion, violating basically any federal law.”

He concluded with the concept of “present responsibility, which is not defined anywhere on the regulatory structure. It is left to the discretion of the agency suspending or debarring and, in most cases, that official is going to look back at it.” The basic question asked will be “is there a reason to be concerned about the integrity of that contractor? And that gets us into a fairly deep dive of the ethics and compliance program.”

Tomorrow we take up the issue of present responsibility.

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