FOREIGN SALES/INTERNATIONAL GOVERNMENT CONTRACTS: DESCRIPTION

Contracts between individuals or legal entities of different nations may pose special problems which lawyers in our Government Contracts and International departments are experienced in handling.

Our international transactional practice also includes work related to government-financed sales, particularly within the Foreign Military Sales (FMS) and Foreign Military Financing (FMF) programs administered by the U.S. Department of Defense (DOD). Under these programs, U.S. allies are annually provided with billions of dollars in grants which may be put towards the purchase of U.S. technology and military equipment.

Sales under the FMS program are governed by the Federal Acquisition Regulation (FAR). Under the FMF program, there is less oversight from U.S. agencies. Despite the reduced regulatory framework, however, FMF programs still present important compliance issues. The contractor's relationship with the U.S. government is governed by a contract called the Certification and Agreement. The Certification and Agreement regulates the disposition of FMF funds, as well as certain aspects of the contractor's relationship with the foreign government, such as sales and marketing representative agreements.

Foreign Corrupt Practices

In any international undertaking, whatever the scale, U.S. companies must be mindful of the restrictions and liabilities imposed by the Foreign Corrupt Practices Act (FCPA). Proper compliance with the FCPA, which includes antibribery provisions as well as recordkeeping requirements, requires companywide internal monitoring. In addition, all U.S. companies with foreign dealings -- especially in the Middle East -- must monitor their compliance with state and federal anti-boycott laws. We have extensive experience counseling clients as to the most effective ways to avoid liability under these and other regulations of international business.

Export Controls

We have a long-standing and extensive export control and export licensing practice, with a particular focus on commodities and services regulated under the Export Administration Act, the Arms Export Control Act and the Foreign Assets Control Regulations. Our lawyers regularly work with officials in the Departments of State, Defense and Commerce responsible for export control enforcement.

Foreign Ownership

We advise domestic and foreign companies on laws and regulations applicable to participation by foreign companies in government procurement. Principal issues include foreign ownership and control and industrial security requirements. Our attorneys counsel on how these requirements affect participation by foreign companies, domestic subsidiaries of those companies and joint ventures between domestic and foreign companies.

Resources

Lawyers experienced in both government contracts and international work handle cases involving the Defense Security Assistance Agency (DSAA) such as commercial contracts between foreign government buyers and U.S. sellers financed with buyer country funds, third-party financing, U.S. government funds or Foreign Military Sales (FMS) credits. Our attorneys work closely with lawyers in the International department to bring our full resources to bear on a client's problems.

We also have substantial experience relating to the Buy American Act and related foreign source issues. That experience includes litigation before administrative judicial tribunals for foreign and domestic clients and representation of clients in administrative and criminal enforcement proceedings involving the federal government's regulation of international procurement.

Our European Presence

Our Brussels office serves the needs of many of the firm's long-term clients in the public procurement field. In particular, we are active in providing counsel with respect to public works and service contracts. This work often entails representing public utilities, telecommunications companies, and large and medium-sized government contractors in both the U.S. and Europe concerning projected strategic alliances, tender bids and cross-border joint ventures and acquisitions.

Our office also assists clients seeking remedies against national or international (e.g., NATO) contracting agencies over unsuccessful bid claims, contract change and performance disputes, as well as related civil litigation and arbitration.

For more information on International government contracts, please contact Allen Green.

Representative Matters

• Numerous voluntary disclosures to State Department and Commerce Department under International Traffic in Arms Regulation (ITAR) Export Administration Regulations (EAR).
• Internal investigation and disclosure concerning transfer of Technical Data to dual national employees of United States multinational corporation.
• Disclosures and advocacy at State Department concerning Canadian exemption.
• Internal review and training of several U.S.-based multinational companies for ITAR compliance.
• First Foreign Corrupt Practices Act (FCPA) criminal prosecution to be dismissed by a Federal court after presentation of evidence and before submission to jury.
• Testified on behalf of ABA on 1988 FCPA amendments, in particular deletion of "reason to know" requirement.
• First full CFIUS investigation, representing the U.S. divestor.
• First Commerce Department Office of Antiboycott Compliance voluntary disclosure of numerous failures to report, resulting in no sanctions imposed.
• Numerous FMS and Direct Commercial Contract cases over many years, including negotiations with DoD over scope of Contractor's Certification and Agreement.
• First FMF criminal fraud case handled and settled.