Bribery Act 2010 – have you thought about your third party contractors?
Posted: Wednesday 28 September 2011
Now that you’ve completed your risk assessment, have published your anti-bribery and corruption policies and procedures under the Bribery Act 2010, and have trained your staff as to what to look out for when giving or receiving gifts and hospitality - what do you need to think about when it comes to engaging with third party contractors and suppliers? You need to be addressing what “adequate procedures” you should have in place to help protect your own organisation against the corrupt actions of others who purport to act on your behalf or in your name.
Due diligence is the first step on the trail. Anti-money laundering checks are a good start in identifying who you are doing business with. Don’t forget to think about and identify who the true beneficial owners of a company may be. If you are inviting tenders for a piece of work, then your Pre-Qualification Questionnaire should ask for disclosure of any offences under the Act, or any other anti-corruption measures for that matter.
If you are contracting with another commercial organisation, ask to see their anti-bribery and corruption policies and procedures. How do they measure up against your own policies and procedures? Think about what standards you might expect your contractors and suppliers to meet. Can you formulate these as a standard questionnaire? How would you go about requiring that those contractors or suppliers change their policies and procedures to meet your own standards? The MoJ guidance on the Act recommends reviewing your anti-bribery and corruption policies and procedures on a regular basis, and at least annually. How do you ensure that your contractors and suppliers to ensure that they review their policies and procedures in the same way?
When entering into supplier contracts, your contract should stipulate that the supplier undertakes that it will comply with, and that the contracted services will be performed in accordance with the Bribery Act 2010 and that it shall not do, nor omit to do, any act that will lead to your organisation being in breach of any of the Act. Consider what other jurisdictions you and/or the supplier might operate in, and whether you should extend the undertaking to include any anti-bribery or anti-corruption related laws of those jurisdictions.
You also need them to tell you immediately of any suspected or known breach, and have a right to terminate the contract if the supplier or any of its employees or own contractors breaches the Act. What if they are materially in breach of their anti-bribery and corruption policies and procedures – you need to know about that so that you can act, if necessary to terminate the contract.
Finally, what if your supplier breaches the Act and lands your organisation with a fine or other penalty? You should be providing in your contract that you can recover your losses from the supplier. These might be fines or penalties levied against your organisation or one of your employees arising from a breach by your supplier, or the costs or expenses you might incur in investigating a breach.
Morton Fraser is advising clients on these Bribery Act issues, helping them formulate their own proportionate procedures in dealing with contractors and suppliers and in reviewing their contracts. If you would like further advice or assistance, please contact our John Lunn.
