DOJ publishes new Opinion Procedure Release on stipends for foreign officials

The Department of Justice published a new Opinion Procedure Release (23-02) related to a training events and logistical support company meeting a U.S. government task order as part of a contract that required it to provide logistical support for foreign government personnel.

In connection with the task order, the Requestor (the company asking for the opinion) proposed to pay stipends to a United States Government Officer, which the U.S. Officer will subsequently deliver to foreign officials. The stipends were intended to pay for meals that are not required to be served during the event, along with driving mileage costs for certain event participants.

The company represented, among other things, that:

• The DOJ has advised the company that the stipends are authorized by a particular United States law: the Foreign Assistance Act of 1961. Specifically, as represented by the company, Sections 129 and 636 authorize the stipend payments here.
• All stipend payment amounts have been approved, or have been determined and set, by the U.S. Government. The amounts to be paid are either (i) calculated in relation to the Department of State’s Meals and Incidental Expenses rates or (ii) otherwise dictated by the U.S. Embassy in a particular country based on that country’s internal per diem rate.
• The company’s proposed (and the U.S. Government’s accepted) stipend payments are between $8 and $40 per day, depending on the location of the training event.
• The company maintains accounting records to document the payments, its costs, and any associated cash transactions, and the company provides all documentation and invoices payment amounts to the DOJ.
• The company received its task order, which calls for the at-issue payments, via a competitive selection process operated by the U.S. Government. Further, the company was not made aware of the names or other information of any foreign officials when it determined the approach and pricing for its task order proposal.
• The company will not pay any funds to foreign officials directly but will instead provide currency only to the relevant U.S. Officer, who will then remit the amounts to the foreign officials directly.

The DOJ said, based on all the facts and circumstances as represented by the company, and to be consistent with prior FCPA Opinion Procedure Releases, it does not presently intend to take any enforcement action under the anti-bribery provisions of the FCPA.

Based on the information provided by the Requestor, among other things, the proposed expenditures reflect no corrupt intent of the company. This is demonstrated, in part, by the DOJ’s belief that the Foreign Assistance Act “authorizes the at-issue payments to foreign officials.”

The Foreign Assistance Act governs the foreign aid policy of the United States. In March 2022, the Foreign Assistance Act was used to provide Ukraine with $800 million in military defense assistance. The aid package included 800 Stinger anti-aircraft systems, 100 grenade launchers, 5,000 rifles, 1,000 pistols, 400 machine guns, 400 shotguns, over 20 million rounds of ammunition, and other military equipment.

The DOJ said the FCPA Opinion Procedure Release has “no binding application to any party other than Requestor and can be relied on by Requestor only to the extent that the disclosure of facts and circumstances in its Request and supplements is accurate and complete.”

This is the second FCPA Opinion Procedure Release published so far this year. The previous Opinion Procedure Release related to an adoption services company meeting a foreign government’s requirement to provide annual travel to officials to visit with some families that have adopted children from the foreign country “to ensure the success of the adoptions.”