Page 130 - U.S. FOREIGN CORRUPT PRACTICES ACT

A Resource Guide to the U.S. Foreign Corrupt Practices Act. Second Edition.

(6) Whether the contractor has taken appropriate disciplinary 394 Id.; see also The World Bank Group, Multilateral
action against the individuals responsible for the activity Development Banks Step Up Their Fight Against Corruption
which constitutes cause for debarment. with Joint Sanction Accord (Apr. 9, 2010) (“‘With today’s
(7) Whether the contractor has implemented or agreed to cross-debarment agreement among development banks,
implement remedial measures, including any identified by a clear message on anticorruption is being delivered: Steal
the Government. and cheat from one, get punished by all,’ said World Bank
Group President Robert B. Zoellick.”), available at https://
(8) Whether the contractor has instituted or agreed to www.worldbank.org/en/news/press-release/2010/04/09/
institute new or revised review and control procedures and multilateral-development-banks-step-up-fight-against-
ethics training programs. corruption-joint-sanction-accord.
(9) Whether the contractor has had adequate time to eliminate
the circumstances within the contractor’s organization that 395 22 C.F.R. §§ 126.7(a)(3)-(4), 120.27(a)(6).
led to the cause for debarment.
(10) Whether the contractor’s management recognizes and 396 Authority under the AECA is delegated to the DDTC.
See 22 C.F.R. § 120.1(a).
understands the seriousness of the misconduct giving rise to
the cause for debarment and has implemented programs to
prevent recurrence. 397 22 U.S.C. § 2778(g)(1)(A)(vi), (g)(3)(B).
398 22 C.F.R. § 127.7(c).
388 48 C.F.R. § 9.406-1(a).
399 See supra note 293.
389 Exec. Order No. 12,549, 51 Fed. Reg. 6,370
(Feb. 18, 1986); Exec. Order No. 12,689, 54 Fed. Reg. 34131 400 See Gary G. Grindler, Acting Dep. Att’y Gen.,
(Aug. 18, 1989).
U.S. Dept. of Justice, Mem. to the Heads of Department
Components and United States Attorneys on Additional
390 48 C.F.R. § 9.407-2(b).
Guidance on the Use of Monitors in Deferred Prosecution
Agreements and Non-Prosecution (May 25, 2010), available at
391 JM § 9-28.1500.B.
http://www.justice.gov/dag/dag-memo-guidance-monitors.
pdf; Lanny A. Breuer, Assist. Att’y Gen., Dep’t of Justice, Mem.
392 See, e.g., African Development Bank Group, Integrity to All Criminal Division Personnel on Selection of Monitors
and Anti-Corruption Progress Report 2009-2010 7, 14 (“As the in Criminal Division Matters (June 24, 2009), available at
premier financial development institution in Africa, the AfDB
is determined to root out misconduct, fraud and corruption http://www.justice.gov/criminal/fraud/fcpa/docs/response3-
supp-appx-3.pdf; see also Craig S. Morford, Acting Dep. Att’y
within its own ranks as well as in the implementation of the Gen., U.S. Dept. of Justice, Mem. to the Heads of Department
projects it finances. In order to do so, the Bank created an Components and United States Attorneys on Selection
anti-corruption and fraud investigation division in November and Use of Monitors in Deferred Prosecution Agreements
2005 as its sole investigative body. The unit became
operational in June 2006 and commenced investigations and Non-Prosecution Agreements with Corporations
(Mar. 7, 2008), available at https://www.justice.gov/
in January 2007. . . . Investigations conducted by the IACD sites/default/files/dag/legacy/2008/03/20/morford-
[Integrity and Anti-Corruption Department] are not criminal useofmonitorsmemo-03072008.pdf.
proceedings; they are administrative in nature. Sanctions
range from personnel disciplinary actions, such as separation,
to loan cancellation and debarment for contractors, which 401 See Brian A. Benczkowski, Assistant Att’y General,
U.S. Department of Justice, Memo to All Criminal Division
can be temporary or permanent.”), available at https:// Personnel on Selection of Monitors in Criminal Division
www.afdb.org/fileadmin/uploads/afdb/Documents/ Matters (Oct. 11, 2018), available at https://www.justice.gov/
Publications/Integrity%20and%20Anti-Corruption. opa/speech/file/1100531/download.
pdf; World Bank Report Concerning the Debarment
Process of the World Bank, available at https://www. 402 Id. at 2.
worldbank.org/content/dam/documents/sanctions/
o th er- d ocu men ts/o sd /Th orn b u rg h Rep ort .p d f . 403 Id.
The World Bank’s debarment process was first formulated
in July 1996, and the Sanctions Committee was established
in November 1998 to review allegations and recommend 404 Id.
sanctions to the President. Written procedures were issued 405 Historically, DOJ had, on occasion, agreed to DPAs
in August 2001 and are posted on the Bank’s website, with companies that were not filed with the court. That is no
along with the sanction actions, and are posted at https:// longer the practice of DOJ.
www.worldbank.org/en/about/unit/sanctions-system/
sanctions-board.
406 JM § 9-27.230.
393 See African Development Bank Group, Asian 407 Id.
Development Bank, European Bank for Reconstruction and
Development, Inter-American Development Bank Group
and World Bank Group, Agreement for Mutual Enforcement 408 DOJ has declined matters where some or all of the
following circumstances were present: (1) a corporation
of Debarment Decisions (Apr. 9, 2010), available at https:// voluntarily and fully disclosed the potential misconduct;
www.adb.org/documents/agreement-mutual-enforcement- (2) corporate principles voluntarily engaged in interviews
debarment-decisions.
with DOJ and provided truthful and complete information
about their conduct; (3) a parent company conducted
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