Page 80 - U.S. FOREIGN CORRUPT PRACTICES ACT

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

Collateral Consequences effective internal control systems in place, self-
reported the misconduct in a timely manner, and
In addition to the criminal and civil penalties
described above, individuals and companies who has taken remedial measures. 387 If a cause for
debarment exists, the contractor has the burden
violate the FCPA may face significant collateral
consequences, including suspension or debarment of demonstrating to the satisfaction of the
debarring official that it is presently responsible
from contracting with the federal government,
cross-debarment by multilateral development and that debarment is not necessary. 388 Each
federal department and agency determines
banks, and the suspension or revocation of certain
export privileges. the eligibility of contractors with whom it deals.
However, if one department or agency debars
Debarment or suspends a contractor, the debarment or

Under federal guidelines governing suspension applies to the entire executive branch
procurement, an individual or company that of the federal government, unless a department
violates the FCPA or other criminal statutes may or agency shows compelling reasons not to debar
be barred from doing business with the federal or suspend the contractor. 389

government. The Federal Acquisition Regulations Although guilty pleas, DPAs, and NPAs do
(FAR) provide for the potential suspension or not result in automatic debarment from U.S.
debarment of companies that contract with the government contracting, committing a federal
government upon conviction of or civil judgment crime and the factual admissions underlying
for bribery, falsification or destruction of records, a resolution are factors that the independent
the making of false statements, or “[c]ommission debarment authorities may consider. Moreover,

of any other offense indicating a lack of business indictment alone can lead to suspension of the
integrity or business honesty that seriously and right to do business with the government. 390 The
directly affects the present responsibility of a Justice Manual also provides that when a company
Government contractor or subcontractor.” 385 engages in fraud against the government, a
These measures are not intended to be punitive prosecutor may not negotiate away an agency’s

and may be imposed only if “in the public’s interest right to debar or delist the company as part of the
for the Government’s protection.” 386 plea bargaining process. 391 In making debarment
Under the FAR, a decision to debar or determinations, contracting agencies, including
suspend is discretionary. The decision is not at the state and local level, may consult with DOJ
made by DOJ prosecutors or SEC staff, but in advance of awarding a contract. Depending on
instead by independent debarment authorities the circumstances, DOJ may provide information

within each agency, such as the Department of to contracting authorities in the context of
Defense or the General Services Administration, the corporate settlement about the facts and
which analyze a number of factors to determine circumstances underlying the criminal conduct
whether a company should be suspended, and remediation measures undertaken by the
debarred, or otherwise determined to be company, if any. This information sharing is not

ineligible for government contracting. Such advocacy, and the ultimate debarment decisions
factors include whether the contractor has are squarely within the purview of the independent

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