Today I want to look at internal controls for third parties. One of the questions that GSK faced during the bribery and corruption investigation of its Chinese operations is how an allegedly massive bribery and corruption scheme occurred? The dollars paid out went upwards of $500MM, which coincidentally was the amount of the fine levied by the Chinese court on GSK. It is not as if the Chinese medical market is not well known for its propensity towards corruption, as prosecutions of the Foreign Corrupt Practices Act (FCPA) are littered with the names of US companies which came to corruption grief in China. GSK itself seemed to be aware of the corruption risks in China. In a Reuters article, entitled “How GlaxoSmithKline missed red flags in China”, Ben Hirschler reported that the company had “more compliance officers in China than in any country bar the United States”. Further, the company conducted “up to 20 internal audits in China a year, including an extensive 4-month probe earlier in 2013.” GSK even had PricewaterhouseCoopers (PwC) as its outside auditor in China. Nevertheless, he noted, “GSK bosses were blindsided by police allegations of massive corruption involving travel agencies used to funnel bribes to doctors and officials.”

Where are the appropriate internal controls? You might think that a company as large as GSK and one that had gone through the ringer of a prior Department of Justice (DOJ) investigation resulting in charges for off-label marketing and an attendant Corporate Integrity Agreement (CIA) might have such controls in place. It was not as if the types of bribery schemes in China were not well known. In an article in the Financial Times (FT), entitled “Bribery built into the fabric of Chinese healthcare system”, reporters Jamil Anderlini and Tom Mitchell wrote about the ‘nuts and bolts’ of how bribery occurs in the health care industry in China. The authors quoted Shaun Rein, a Shanghai-based consultant and author of “The End of Cheap China”, for the following “This is a systemic problem and foreign pharmaceutical companies are in a conundrum. If they want to grow in China they must give bribes. It’s not a choice because officials in health ministry, hospital administrators and doctors demand it.”

Their article discussed the two primary methods of paying bribes in China: the direct incentives and indirect incentives method. Anderlini and Mitchell reported, “The 2012 annual reports of half a dozen listed Chinese pharmaceutical companies reveal the companies paid out enormous sums in “sales expenses”, including travel costs and fees for sales meetings, marketing “business development” and “other expenses”. Most of the largest expenses were “travel costs or meeting fees and the expenses of the companies’ sales teams were, in every case, several multiples of the net profits each company earned last year.””

It would be reasonable to expect that internal controls over gifts would be designed to ensure that all gifts satisfy the required criteria, as defined and interpreted in Company policies. It should fall to a Compliance Officer to finalize and approve a definition of permissible and non-permissible gifts, travel and entertainment and internal controls will follow from such definition or criteria set by the company. These criteria would include the amount of the spend, localized down into increased risk such the higher risk recognized in China. Within this context, there are four general internal controls to consider. (1) Is the correct level of person approving the payment / reimbursement? (2) Are there specific controls (and signoffs) that the gift had proper business purpose? (3) Are the controls regarding gifts sufficiently preventative, rather than relying on detect controls? (4) If controls are not followed, is that failure detected?

Below are 10 specific inquires you can make regarding your compliance internal controls specific to third parties.

1: Prior to entering the relationship, did management: confirm alignment with business strategy; analyze strategic risk; perform risk/reward analysis; and review its ability to provide adequate oversight and management on an ongoing basis?

2: Can the third-party’s activities be viewed as predatory, discriminatory or abusive?

3: Does your compliance regime include: policies and procedures to help manage third-party relationships; proper internal controls; training; monitoring; and auditing procedures to ensure consistent and ongoing compliance?

4: Was adequate due diligence conducted that included a review of all available information about the third-party (e.g. financial condition, reputation, knowledge of laws, complaints, operations and controls, internal controls and marketing materials?

5: Are expectations and obligations of both the company and the third-party outlined in a written contract prior to entering the relationship?

6: Does the board of director’s review and approve any material third-party relationships?

7: Does the contract outline fees to be paid, management information reports, audit rights, limit use of consumer information, exclusivity language, complaint management process, specifies circumstances that constitute default, dispute resolution process, and provides indemnification provisions?

8: Did the board initially approve the third-party relationship and does it review each significant third-party relationship on at least an annual basis?

9: Is there a process to verify the third-party’s operations are consistent with the written agreement and that risks are being controlled?

10: Does management allocate sufficient qualified staff to monitor significant third-party relationships and provide necessary oversight (and are these activities reported to the board of directors or designated committee)? What is the frequency of exceptions and how are they analyzed/documented/reported to management? When applicable, are you comparing and analyzing the third-party’s sales patterns?

Obviously, the use of third-parties can be a powerful and effective way for a business to achieve its strategic goals. This may be one of the key reasons why third-parties are still one of the leading indicia of bribery and corruption. Every compliance program should regularly review its third-party service providers and evaluate internal policies and procedures to ensure compliance.

Three Key Takeaways

  1. GSK in China continues to be an example of the lack of internal controls for an effective compliance program.
  2. General areas of review for compliance internal controls.
  3. Third parties are still the highest risk of corruption related issues.

For more information on how to improve your internal controls management process, visit this month’s sponsor Workiva at