FCPA Opinion Procedure Release 01-02 came from a joint venture between a U.S. company and a foregin company looking to engage in a business relationship with foreign company’s government.
The requestors, as well as the chairman of the foreign company himself, signed the FCPA opinion request and represented, among other things, that:
- The foreign company’s chairman’s government duties do not involve him acting in any official capacity concerning the award of the relevant business project. According to a legal opinion of counsel from the foreign country, submitted by the requestors, the tender for the business project was issued by ministries or agencies that are not under the charge of the foreign company’s chairman in his official government duties.
- The foreign company’s chairman will not initiate or attend any meetings with his country’s government officials on behalf of the Consortium. His country’s law prohibits it.
- The foreign company’s chairman will recuse himself and will not participate in his official capacity in any discussion or consideration of or decision about the award of the business project, which could be construed as promoting in any matter the activities and business of the Consortium, or any other interest or business of any company affiliated with a Consortium member. The Consortium’s bid submissions have informed the relevant foreign government ministries, agencies, and officials of the foreign company’s chairman’s relationship with the Consortium and of his recusal on any matters relating to the business project that are brought before those ministries, agencies, and officials. Future Consortium bid submissions will do the same.
- The foreign company’s chairman’s position as a senior official in public education cannot affect or influence his government’s process of reviewing the Consortium’s bid and grants him no influence over the business project.
- According to the requestors, the foreign company’s chairman, and the legal opinion of the requestors’ foreign counsel, the Consortium’s formation and contemplated activities do not violate the laws of the foreign country, despite the foreign company’s chairman’s position in the government and as a senior official in public education.
- The Consortium agreement will provide that each member acknowledges its awareness and understanding of the applicability of the FCPA to the Consortium’s bid on, and possible execution of, the business project, and each party will agree not to violate the FCPA. Any failure by a Consortium member to comply with this provision of the agreement automatically grants the non-breaching member the right to terminate the Consortium agreement.
