The Act also prohibits any payment to a third party where the payor "knows" that the third party will use any part of that payment for bribes. This "knowledge" standard imposes a strict duty upon U.S. companies and individuals to ensure that they select agents and middlemen who do not have a reputation for making illegal payments or may, for other reasons, be anticipated to make illegal payments. Specifically, U.S. companies and individuals are prohibited from taking a "head-in-the-sand" attitude and from ignoring warning signs that should reasonably alert them of the high probability of an FCPA violation. Evidence of a "conscious disregard" or "willful blindness" of known circumstances that should reasonably alert one to the high probability of violations of the FCPA will constitute "knowledge". In an effort to comply with the "knowledge" standard, the Company requires that all of its agents, representatives and middlemen be subjected to a rigorous due diligence review, discussed in further detail below.
In very limited circumstances, the FCPA permits payments to foreign officials. For instance, the FCPA permits "facilitating" or "expediting" payments made to a foreign official for the limited purpose of securing or expediting routine governmental actions. The list of routine governmental actions is small, but includes such things as: the issuance of visas, work permits and licenses; the clearance of goods through customs; and the provision of public services such as police protection, mail delivery and public utilities. However, in most countries, facilitation payments are viewed as bribes, violate local law and could result in criminal penalties. From a public relations perspective, facilitation payments could also have a detrimental effect because they contribute to a public perception that a U.S. company supports a corrupt business and political environment. Given these factors, the Company’s corporate policy forbids facilitation payments altogether, unless prior approval of the Legal Department has been obtained. If, in a rare instance, a facilitation payment has been approved and paid, such payment must be accurately reported in the Company's books and records.
Similarly, it may be permissible under the FCPA to offer or pay for reasonable and bona fide expenditures, such as travel and lodging expenses of a foreign official, if such expenses are directly related to the promotion or demonstration of products or services, or to the execution or performance of a contract with a foreign government or agency. However, even a nominal payment or gift to a foreign official may amount to a violation of the FCPA if provided for corrupt purposes. Accordingly, the Legal Department must be consulted before paying or offering to pay travel or other expenditures of foreign officials. In several countries, there are laws or regulations that limit or prohibit gifts or expense reimbursements for certain public officials. Therefore, foreign counsel may also need to be consulted with regard to these matters.
Finally, payments to foreign government officials that are permitted under the written laws and regulations of the recipient's country are permitted under the FCPA. As a practical matter, however, it is highly unlikely that any country in which the Company does business would permit a payment to a foreign official in exchange for business. Thus, the Company and its employees, agents and other representatives are strictly prohibited, as a matter of the Company’s policy, from offering or making payments pursuant to this FCPA exception, even if the making of such payment is common practice in the relevant country.