From the information provided by the DOJ in Opinion Releases and in enforcement actions, there are several different insights which may be drawn on regarding what should go into your policy on facilitation payments. Do not forget that facilitation payments must be accurately shown on the books and records of your company. In all cases the employee who requested permission to make the facilitation payment must be responsible for obtaining all required approvals and forwarding a copy of the approvals and any other relevant supporting documentation as required, so that the it is recorded as a facilitation expense in the books and records and maintained in a central file. Facilitation payments should not be recorded as consulting fees, entertainment expenses, or other types of expenses that may misrepresent the true nature of the payments.
There may be emergency situations when it will be difficult or impossible for employees to obtain approvals before having to decide whether or not to pay a facilitation payment. If the facilitation payment is made in an emergency, the employee reports the facilitating payment to the compliance department and explains the emergency as soon as practical after making the facilitation payment.
Three key takeaways:
- What was the amount of the facilitation payment?
- Was the action truly routine?
- How high up was the government official who received the facilitation payment? Was his or her decision discretionary?
For more information, check out The Compliance Handbook, 4th edition, here.
