Thomas Doright, the expatriate heading up Phone and Build’s operations in Growastan, a Central Asian country, has submitted a bid on behalf of Phone and Build for a US$5 million dollar contract to provide telecom services and products for Growastan’s Ministry of Communications.
Shortly after Thomas submitted the bid, Growastan’s deputy minister of communications asked Thomas to lunch. As they ate, the deputy minister made a proposal to Thomas: “If you can give me 100,000 US dollars in a bag within one week, the ministry will definitely be able to award the project to Phone and Build. Thomas paused when he heard this: He knew that his yearly bonus was tied to his success in Growastan.
The deputy minister noticed the pause: “If you’re uncomfortable paying me directly, you can give me a Maserati that I could use to pick up the winning contract. Or how about this? Why not donate $100,000 to my son’s political campaign?”
Thomas looked away from the deputy minister and said nothing. The deputy minister continued, “Did my administrative assistant explain to you how it works when the contracts are announced? You can pay the $1,000 expedited service fee if you want to hear the results of the bid one hour before they’re made public.”
After an awkward moment, the deputy minister continued, “Even if Phone and Build wins the bid, without being ‘more cooperative’ it might take a long time for the company’s equipment to clear customs.”
Thomas wasn’t sure what to do. When he returned from lunch, he discussed the conversation with his manager of operations, who is a local national.”You have to ‘pay to play’ in his country, that’s just how it is,” his manager explained.
INSTRUCTION
You open your email to see a message from Belinda. She asks you to review what she calls the Pay to Play case.
Thomas believes that Phone and Build is the most competitive bidder with a quality product, but he knows that there is little chance Phone and Build will win the government contract or get equipment into Growastan to carry out operations without approval from the deputy minister of communications. Thomas decides to call Belinda Lee to get some advice about how to proceed. Belinda has asked you to write a memo that addresses the issues Phone and Build needs to consider as it decides how to handle this situation.
Belinda has asked you to include the following information in your memo. As you think about your answers to each of the following questions, take notes and create an outline for your memo:
Analyze the issues under the Foreign Corrupt Practices Act of 1977, as amended, 15 U.S.C. §§ 78dd-1, et seq. (the FCPA). What is the legality of each of the following payments under the FCPA?
the US$100,000 payment to the deputy minister
the purchase of the sports car to pick up the contract
the donation to the political campaign
the expedited service fee
What are the possible criminal and/or civil penalties that Phone and Build and/or its directors and employees might be subjected to for violating the FCPA?
What defenses might Phone and Build have if prosecuted for FCPA violations? What are the specific defenses that could be used for each of the payments proposed by the deputy minister of communications?
Since Phone and Build also has operations in the United Kingdom, you need to analyze the scenarios under the the United Kingdom’s Bribery Act of 2010. What is the legality of each of the following payments?
the US$100,000 payment to the deputy minister
the purchase of the sports car to pick up the contract
the donation to the political campaign
the expedited service government fee
In the next step, you will write your memo.