Guidance for Researchers Regarding the Foreign Corrupt Practices Act

The FCPA prohibits offering to pay, paying, promising to pay, or authorizing payments of money or “anything of value” to a “foreign official” in order to influence the foreign official’s actions or decisions or to secure an improper advantage in order to obtain or retain business. The FCPA carries civil and criminal penalties and is enforced by the Department of Justice.

The FCPA applies to all “domestic concerns,” which includes the University and its employees. The FCPA also holds the University responsible for those working on the University’s behalf, which could include agents, independent contractors, consultants, or vendors.

The University operates globally through its research collaborations, fieldwork, study abroad programs and general business activities. For researchers working with foreign collaborators or in foreign countries, the FCPA may directly apply to those activities. If research collaborators in a foreign country are associated with government universities or hospitals, if the University researcher has contacts with governmental officials, or if the work requires local governmental approval, the FCPA is especially relevant. It is important to note that the FCPA applies to an individual’s activities while the individual is located in a foreign country, as well as when the individual is located in the United States.

Researchers should understand the term “foreign official” is defined very broadly under the FCPA. A foreign official is an officer or employee of a foreign government (including its departments, agencies or instrumentalities), or of a public international organization. It also includes individuals acting on behalf of a foreign government (including its departments, agencies or instrumentalities), or on behalf of a public international organization.

Importantly, foreign officials include any employees of applicable governments or organizations, regardless of their rank.

For example, a foreign official could include:

• Faculty and administrators of a university funded, administered, or overseen by a foreign state or government.
• Faculty, administrators, and healthcare professionals at a government-controlled hospital.
• Employees at organizations, agencies, or public bodies controlled by a foreign government. This would include research funding agencies such as UK Research and Innovation (UKRI), as well as non-research organizations controlled by a foreign government, including national museums.
• Employees of a research institute controlled by a foreign government.
• Advisors or agents of foreign governments, officials, or departments, such as attorneys, accountants, financial advisors, brokers, or independent contractors.
• Employees of public international organizations such as the UN, the World Bank, or OECD.

Researchers should understand that the concept of “anything of value” is broadly interpreted under the FCPA. Anything of value could include cash, non-cash gifts, loans, entertainment expenses, travel, meals, employment opportunities, scholarships or educational programs, uncompensated uses of the University’s facilities, and charitable donations. There is no monetary threshold under the FCPA.

It may be common to provide small gifts of appreciation to international research collaborators. As stated above, the FCPA applies to gifts or other items of value if they are provided for an improper purpose. Gifts provided to research collaborators or foreign officials should not be extraordinary and should be motivated solely to express appreciation, respect or gratitude. Gifts should not be provided in the form of cash.

Payments for bona fide goods and services provided to the University are permissible. For example, researchers may need to compensate consultants in foreign countries for legitimate services performed, issue subawards to institutions, or compensate research subjects for their participation in a study. Researchers show follow processes outlined by ORPA, University of Rochester Procurement and University Accounts Payable in order to appropriately document their payments.

In limited circumstances, some payments may fall outside of the FCPA. The FCPA provides exception for payments made to a foreign official for the purpose of expediting or securing the performance of a routine government action by the foreign official. These types of payments are narrowly construed, and researchers should avoid making facilitation payments to the greatest extent possible. Facilitation payments may violate the anti-bribery laws of the foreign jurisdiction where the researcher is working. It is not permissible to make a payment in order to seek approval or favorable decision by a foreign official.

When compensating individuals or entities in foreign countries for goods or services, researchers should follow processes outlined by University of Rochester Procurement and University Accounts Payable. Researchers should also familiarize themselves with the University’s Business Expense and Travel Reimbursement Policy, which governs allowable business expense reimbursements. Contracts and payments to foreign entities and officials should go through appropriate University offices, and should accurately reflect the terms of the transaction.

If presenting a gift to a foreign official, researchers should understand that such a gift may not be given with the intent to influence the foreign official in a manner prohibited by the FCPA. If researchers plan to make bona fide, legitimate payments to a foreign official, the researcher and department should keep complete and accurate records of the payment.

When engaging with third parties to act on the University’s behalf in foreign countries, researchers should conduct due diligence to determine whether the third party’s business practices comply with the FCPA. Researchers may also contact the Office of Global Engagement to conduct restricted party screening on parties that they are considering doing business with.

If researchers are planning to conduct a project in a certain country, they can review information about potential corruption risk in that country provided by Transparency International.