This week I am going to present a series on my views of the life cycle of third party management under an anti-corruption (or anti-money laundering (AML) program for that matter) under the Foreign Corrupt Practices Act (FCPA) or UK Bribery Act. I have broken down the life cycle of third party management into five steps:
Today I will begin with the business justification.
It really seems to me that it should be common sense that you should have a business justification to hire or use a third party. If that third party is in the sales chain of your international business it is important to understand why you need to have a particular third party represent your company. This concept is enshrined in the FCPA Guidance, which says, “companies should have an understanding of the business rationale for including the third party in the transaction. Among other things, the company should understand the role of and need for the third party and ensure that the contract terms specifically describe the services to be performed.”
The Internal Revenue Service (IRS) also considers a business justification to be an important part of any best practices anti-corruption compliance regime. Clarissa Balmaseda, a special agent in charge of IRS criminal investigation, speaking at the 2013 ACI Bootcamp in Houston, said that the lack of business justification could be a Red Flag, which could signify a possible indicia of corruption. With the Department of Justice (DOJ); Securities and Exchange Commission (SEC) and IRS all noting the importance of a business justification, it is clear that this is something you should incorporate into your compliance program.
But the business justification also provides your company the opportunity to help drive compliance into the fabric of your everyday operations. This is done by requiring the employee who prepares the business justification to be the Business Sponsor of that third party. The Business Sponsor can provide the most direct means of communication to the third party and can be the point of contact for compliance issues.
Tyco International takes this approach in its Seven Step Process for Third Party Qualification. Tyco breaks the first step into two parts, which include:
Further, at the same conference as IRS Agent Balmaseda spoke, another Chief Compliance Officer (CCO) of a major energy service company detailed his thoughts on his company’s 12 point evaluation process for reviewing, assessing, then contracting with and managing foreign business partners. Under Step 2, which he entitled, “Competence of foreign business partner”;he detailed a two-part analysis for his company. “It includes a review of the qualifications of the candidate for subject matter expertise and the resources to perform the services for which they are being considered. However, it also in includes an identification of the representative’s expected activities for your company.” He also added, that under one of his company’s steps, which he monikered “Business justification for use of agent and reasonableness of compensation”, “you should begin the entire process by requiring the relevant business unit which desires to obtain the services of any foreign business partner to provide you with a business justification including current opportunities in territory, how the candidate was identified and why no currently existing foreign business relationships can provide the requested services. Your next inquiry should focus on the terms of the engagement, including the commission rate, the term of the agreement, what territory may be covered by the agreement and if such relationship will be exclusive.”
So what should go into your Business Justification? First and foremost is that you should craft a document, which works for both you as the compliance practitioner and the business folks in your company. There are some basic concepts that I think are important but you may want to modify my suggestions based on your own experiences.
You need the name and contact information for both the Business Sponsor and the proposed third party. You need to inquire into how the Business Sponsor came to know about the third party because it is a Red Flag if a customer or government representative points you towards a specific third party. You should inquire into what services the third party would perform for your company, the length of time and compensation rate for the third party. You will also need an explanation of why this particular third party should be used, as opposed to an existing or other third party, if such were considered. All of this information should be written down and then signed by the Business Sponsor.
Remember, the purpose of the Business Justification is to document the satisfactoriness of the business case to retain a third party. The Business Justification should be included in the compliance review file assembled on every third party at the time of initial certification and again if the third party relationship is renewed. In the Tom Fox Mantra, this means Document, Document, and Document.
Visit the FCPA Compliance and Ethics Blog, hosted by Thomas Fox, for more commentary on FCPA compliance, indemnities and other forms of risk management for a worldwide energy practice, tax issues faced by multi-national US companies, insurance coverage issues and protection of trade secrets.
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 firstname.lastname@example.org.
© Thomas R. Fox, 2014
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