In derartigen Verträgen sollte die eine oder andere Klausel Verwendung finden und entsprechende Überlegung angestellt werden; dies wurde vom U.S. Department of Justice anhand eines konkreten Falles für gesetzeskonform befunden. Grundlage ist die DOJ Bechtel Opinion 81-01: DOJ Opinion Release 81-0.1 Die Vertragsparteien hatten ihren Vertrag dem DOJ zur Prüfung und Vereinbarkeit mit dem FCPA vorgelegt.
Lesenwert, da als Checkliste sehr hilfreich.
All payments to SGV will be solely by check or bank transfer; no payment will be in cash or
bearer instrument, and no payment will be made to any corporation or person other than an
SGV member firm or any officer or employee of such firm. Furthermore, all payments will be
made to SGV either in the Philippines or, upon written instruction to Bechtel, in any other
country in which an SGV member firm shall render services.
Both requesters are familiar with the FCPA and its purposes; and that, in particular, they are
familiar with that Act’s prohibition of the payment or giving of anything of value, either directly
or indirectly, by an American company to an official of a foreign government for the purpose of
influencing an act or decision in his official capacity, or inducing him to use his influence with
the foreign government, to assist a company in obtaining or retaining business for or with, or
directing business to, any person.
SGV represents that none of its partners, owners, principals, and staff members are officials,
officers, or representatives of any government or political party or candidates for political
office and represents further that no part of its compensation will be used by SGV for any
purpose, nor will it take any action, which would constitute a violation of any law of the
various jurisdictions in which it performs services or of the United States, including the FCPA.
For its part, Bechtel represents that it does not desire and will not request any service or
action by SGV which would or might constitute any such violation.
SGV has agreed to obtain an opinion of local counsel to the effect that: (a) the entering into
and performing the proposed agreement between Bechtel and SGV is permitted under the law
of the Philippines; (b) no authorization or approval or other action and no notice to, or filing
with, any governmental authority is required for the due execution and performance of that
agreement; and (c) payment of travel and entertainment expenses for, or gifts to,
government officials within the standards established by their agreement do not violate any
law of the Philippines. SGV also represents that it shall furnish to Bechtel a similar opinion of
local counsel in any other jurisdiction in which SGV may perform services, prior to the actual
performance of any such services.
SGV will have no right to assign any portion of its rights to any third party without the prior
written consent of Bechtel and, unless otherwise agreed by Bechtel in writing, the partners,
principals, and regular staff members of SGV or its member firms shall personally perform the
services required by Bechtel.
SGV will not obligate Bechtel to third parties with whom SGV may make agreements or to
whom SGV may direct payments, except as approved in writing by Bechtel. The requesters
have further agreed and represent that by this they do not intend to authorize payments to
any foreign official, government agency, political party, or political candidate, which payments
would be prohibited by the FCPA, and SGV has acknowledged that no employee of Bechtel
shall have authority to give any direction, either written or oral, relating to the making of any
commitment by SGV to any third party in violation of the terms of the proposed agreement
between SGV and Bechtel.
Both Bechtel and SGV will be entitled to terminate their agreement at any time, without
further liability or obligation, if either believes, in good faith, that there has been a breach of
its terms by the other party; any action which would or might constitute a violation of the
FCPA, or a request for such action from a representative of either party, will result in
immediate termination of the agreement. In addition, should SGV ever receive, directly or
indirectly, from any Bechtel representative a request which SGV believes will or might
constitute a violation of the Act, SGV represents that it will immediately notify Bechtel’s
general counsel of the request.
SGV has agreed that full disclosure of the existence and terms of its agreement with Bechtel,
including the compensation provisions, may be made at any time and for any reason to
whomever Bechtel’s general counsel determines has a legitimate need to know such terms
including, without limitation, the government of any country where services are being
performed, the United States government, and/or other clients of Bechtel.
With respect to Bechtel’s compensation of SGV for expenses incurred in connection with the
rendering of services on Bechtel’s behalf:
(a) Non-local travel expenses for representatives of Bechtel’s clients or prospective clients will
be reimbursed only when such expenses are permitted under the local laws and are incurred
with Bechtel’s prior written approval.
(b) Entertainment and meal expenses for representatives of Bechtel’s clients or prospective
clients will be reimbursed without prior approval of Bechtel only if the expenditure is permitted
under the local laws, the entertainment or meal occurs on the same day as a substantial
business meeting, and the expense is commensurate with the legitimate and generally
accepted local custom for such expenses by private business persons in the country.
(c) Travel expenses, including expenditures for hotels, meals, airline tickets, taxis, etc.,
incurred by SGV’s partners, principals, and regular staff members in the performance of
services for Bechtel will be reimbursed only when such travel is approved by Bechtel in
writing.
(d) Expenses for gifts or tangible objects of any kind incurred without Bechtel’s prior written
approval will be reimbursed only where such expenditures are permitted under the local laws,
the ceremonial value of the item exceeds its intrinsic value, the cost of the gift does not
exceed $500 per person, and the expense is commensurate with the legitimate and generally
accepted local custom for such expenses by private business persons in the country.
(e) Reimbursement of other expenses incurred only if Bechtel has given prior written approval.
(f) Prior to reimbursement, SGV shall submit to Bechtel for approval an invoice showing all
compensation earned, a detailed report of the services rendered by SGV under the agreement,
and a certification that SGV has complied with all applicable laws in connection with rendering
such services.
10. SGV and Bechtel have agreed that all compensation and expense reimbursements,
whether as a result of specific or general prior Bechtel approval, are subject to audit by
Bechtel. Bechtel intends to audit SGV’s expenses and invoices when, from all the
circumstances, it appears reasonable to do so, taking into consideration (1) the amount paid
in relation to the total payments under their agreement; (2) the nature of the expense; (3)
the SGV service rendered during the period; and (4) the Bechtel customers or potential
customers with whom SGV had contacts. SGV understands that all services and expenditures
will be described in detail and, upon notice of audit, SGV will make available to Bechtel all
invoices, supporting receipts and detailed substantiation and original entry records for all
hourly charges invoiced to Bechtel.
It has also been represented that Bechtel has considered several factors in selecting SGV as
its consultant. Among these Bechtel has represented that it has considered (1) the number of
years the firm has been in operation; (2) the size of the firm measured in terms of manpower
and geographical coverage; (3) the substantial probability of SGV’s continued growth; (4) the
number and reputation of its clientele; (5) the qualifications of its professional staff; (6) the
presence of technical experts and specialists; (7) the adequacy of its support staff; and (8) the
firm’s familiarity with and adherence to the principles embodied in the FCPA.
In addition to those factors, Bechtel represents that its decision to engage SGV was influenced
by the fact that it has known the principals of SGV for a number of years and is confident of
their professionalism and integrity. Since June 1977, SGV has been serving as a business
consultant to Bechtel in the Philippines and Bechtel represents that it has found this
relationship highly successful, both with respect to the quality of service rendered and the
standard of ethics maintained.
