Foreign Corrupt Practices Act (FCPA)
Overview
The Foreign Corrupt Practices Act (FCPA) is a U.S. federal law that prohibits certain corrupt payments, offers, promises, or transfers of anything of value to foreign government officials for the purpose of obtaining or retaining business or securing an improper advantage.
Although the FCPA is not an export control law, it may be relevant to certain international University activities involving foreign government officials, government-owned or government-controlled organizations, payments, gifts, travel, procurement, consulting, or other transactions.
Foreign government officials may include individuals associated with foreign government agencies and, depending on the circumstances, employees or representatives of government-owned or government-controlled organizations.
Because universities, research institutions, hospitals, laboratories, and other organizations outside the United States may be government-owned or government-controlled, researchers should be aware that routine international activities may sometimes involve foreign officials for purposes of the FCPA.
The Office of Research Security (ORS) can assist researchers in identifying activities that may require additional institutional review and coordinate with University Counsel and other University offices, as appropriate.
FCPA at a Glance
| Topic | Information |
|---|---|
| Federal Law | Foreign Corrupt Practices Act |
| Primary Focus | Prohibits corrupt payments or offers of anything of value to foreign officials to obtain or retain business or secure an improper advantage |
| May Involve | Foreign government agencies, state-owned or state-controlled organizations, public universities, hospitals, and other government-connected entities |
| Common University Considerations | International collaborations, procurement, travel, consulting, payments, gifts, and agreements |
Common Considerations
The FCPA defines foreign officials broadly and may apply to individuals acting for or on behalf of foreign governments, departments, agencies, or instrumentalities.
Depending on the circumstances, this may include individuals affiliated with:
- Foreign government agencies.
- Ministries or departments.
- Government-owned or government-controlled companies.
- State-owned or state-controlled universities.
- Public research institutions.
- Government hospitals or health care organizations.
- Other entities that may be considered instrumentalities of a foreign government.
Whether a particular individual or organization falls within the FCPA depends on the specific facts and circumstances.
FCPA considerations may arise in connection with:
- International research collaborations.
- Research or other University agreements.
- International travel.
- Overseas procurement.
- Consulting or professional services.
- Payments to foreign organizations or individuals.
- Gifts, meals, travel, or other benefits provided in connection with University activities.
- Interactions with foreign government agencies or government-controlled organizations.
- Use of consultants, agents, or other third parties in international activities.
The FCPA does not prohibit legitimate scientific collaboration, academic exchange, or ordinary interactions with foreign institutions and government officials.
The concern arises when money or something else of value is offered, promised, authorized, or provided corruptly for an improper purpose.
The FCPA is not limited to cash payments.
Depending on the circumstances, “anything of value” may include:
- Money or payments.
- Gifts.
- Travel or lodging.
- Meals or entertainment.
- Honoraria or consulting payments.
- Employment or other opportunities.
- Services or benefits.
- Other items or advantages provided to or for the benefit of a foreign official.
Whether an activity presents an FCPA concern depends on its purpose, recipient, value, circumstances, and other factors.
FCPA concerns may also arise when payments or benefits are provided through consultants, agents, intermediaries, collaborators, vendors, or other third parties.
Using a third party does not eliminate potential FCPA concerns when circumstances indicate that something of value may ultimately be provided improperly to a foreign official.
Researchers should not make unusual payments or provide benefits through third parties to facilitate University activities without appropriate institutional review.
How ORS Can Help
ORS can assist by:
- Reviewing international research activities that may involve foreign government or government-controlled organizations.
- Identifying circumstances that may warrant additional institutional review.
- Coordinating with University Counsel, Procurement, Sponsored Programs, and other University offices, as appropriate.
- Assisting with review of international organizations or participating entities.
- Providing guidance before researchers or departments respond to unusual requests involving payments, gifts, benefits, or other international transactions.
When Should I Contact ORS?
Contact ORS if an international research or University activity involves:
- A foreign government agency or government-controlled organization and unusual payments, gifts, benefits, or requests.
- A public university, government research institute, or state-owned organization when you are uncertain whether additional review is appropriate.
- Payments, consulting fees, honoraria, travel support, gifts, or other benefits involving foreign government officials.
- A consultant, agent, or intermediary involved in dealings with foreign government organizations.
- Requests for payments or benefits that appear unusual or unrelated to legitimate University activities.
- Other circumstances that raise questions about international compliance requirements.
Federal Resources
For current federal information regarding the FCPA, enforcement, and official guidance, visit the U.S. Department of Justice – Foreign Corrupt Practices Act website.
The Department of Justice and Securities and Exchange Commission also maintain the Resource Guide to the U.S. Foreign Corrupt Practices Act, which provides detailed federal guidance regarding the statute and its application.
Need Assistance?
If an international research or University activity involves foreign government officials, government-owned or government-controlled organizations, unusual payments, gifts, benefits, or other circumstances that may raise FCPA concerns, contact ORS before proceeding.
ORS can coordinate with University Counsel and other University offices to determine whether additional review is appropriate.