Chương XI Luật Đấu thầu 2013: Hành vi bị cấm và xử lý vi phạm về đấu thầu

Chapter 11.

FRAUD AND CORRUPTION AND ACTIONS TAKEN

Article 89. Fraud and Corruption

1. Corrupt practice.

2. Take advantage of positions, powers aiming to interfere illegally in a bidding process.

3. Collusive practice, including the following acts:

a) Agreeing on bidding withdrawal or withdrawal of Letter of Bid already been submitted so that one party or parties in agreement win bid;

b) Agreeing to let one or many parties to prepare Bid for parties of bidding so that one party may win bid;

c) Agreeing on refusal for goods provision, refusal for signing contract of Subcontractor, or forms which cause other difficulties to parties which refuse to participate in agreement.

4. Fraudulent practice, including the following acts:

a) Providing a wrong presentation intentionally or falsifying information, dossier or documents of a party in bidding with the aim to obtain financial benefits or other benefits or with the aim to avoid any obligation;

b) Individuals who personally assess EOI responses, Applications, Bids, Proposals, evaluate result of selection of short list, result of selection of investor, bidder, intentionally providing wrong report or untrue information falsifying the result of selection of bidders/investors.

c) Bidders/investors intentionally provide dishonest information in EOI responses, Prequalification Application, Bids, Proposals falsifying the result of selection of bidders/investors.

5. Interference practice, including the following acts:

a) Destroying, cheating, changing, hiding proof or reporting contrary to the truth; threatening, disturbing or suggesting with any party with the aim to prevent the clarification of acts of handing, taking, brokerage of bribes, fraudulence or conclusion with functional agencies, authorized agencies in conducting supervisions, checks, inspections and audit;

b) Impeding bidder/investors, authorities in charge of supervision, inspection and audit.

6. Inequality and intransparency, including the following acts:

a) Making a bid as a bidder/investor in a procurement, project for which it is also the Procuring Entity, investor or person performing tasks of the Procuring Entity, investor;

b) Formulating and engaging in evaluation of dossier of invitation for expression of interest, Prequalification Document, Bid, Request for Proposals for a same procurement, project;

c) Engaging in evaluation of Bids, Proposals, concurrently evaluate result of selection of bidder/ investor for a same package, project;

d) Any individual of the Procuring Entity, investor directly participates in the process of selection of bidder/ investor or participate in expert groups, evaluation groups for result of selection of bidder/ investor, or a head of competent regulatory body, investor, the Procuring Entity for packages, projects in which his or her natural parent, parent-in-law, spouse, natural child, adopted child, son or daughter-in-law or sibling participates give their name in bidding or are representatives in law of bidders/investors making the bid;

dd) Participation by a bidder in bidding for goods procurement, works in a procurement for which such participant previously has provided consulting services;

e) Provision of one's name as the bidder for a procurement belonging to a project of an organization or body for which such person worked, within a period of 12 months from the date on which such person ceased to work for such body or organization;

g) Being consulting bidder for supervision concurrently provide the verification consulting for the procurement which is under supervision of bidder;

h) Application of a form of selection of bidder/ investor other than competitive bidding when the conditions stipulated in this Law have not been satisfied;

i) Imposition of specific requirements regarding brand names and country of origin of goods in Bid Documents applicable to procurement for procurement of goods, for works and mixed packages when applying forms of competitive bidding, limited bidding;

k) Division of a project, estimate for procurement into packages contrary to the provisions in this Law with the aim to apply Direct Contracting or limit participation of bidders.

7. Disclosure, receipt of the following data and information regarding selection of bidder/ investor, except for cases defined at point b clause 7 and point e clause 8 article 73, clause 12 Article 74, point i Clause 1 Article 75, Clause 7 Article 76, Clause 7 Article 78, point d Clause 2 and point d clause 4 Article 92 of this Law:

a) Contents of EOI requests, Prequalification Documents, Bid Documents prior to the stipulated date for issuance of such documents;

b) Contents of EOI responses, Applications, Bids, Proposals, notebooks and minutes of bid consideration meetings, comments and assessments regarding each dossier of expression of interest, dossier of prequalification participation, Proposals prior to the announcement of the short list, results of selection of bidder/ investor;

c) Requests for clarification of Bids, Proposals made by the Procuring Entity and responses of bidders/investors during the process of assessment of Bids, Proposals prior to announcement of the results of selection of bidder/ investor;

d) Reports by the Procuring Entity, by the expert group, evaluation report, report of consulting bidder, report of relevant specialized agencies during the process of selection of bidder/ investor prior to announcement of the results of selection of bidder/ investor;

dd) Result of selection of bidder/ investor prior to the stipulated time for announcement;

e) Other documents during the process of selection of bidder/ investor which are stamped "confidential" as prescribed by law.

8. Bid transfer including the following acts:

a) Contractor transfer to other contractor a part of work under procurement at value of 10% or more (after deducting part of work under responsibilities of Subcontractors) calculated on the signed Contract Price;

b) The investor or supervision consulting accepts for contractor to transfer work under duty of contractor, deducted part of work under duty of Subcontractors as stated in contract.

9. Holding selection of bidder when the financing source for the package has not yet been determined, resulting in insolvency of the contractor.

Article 90. Actions against violations

1. Any organization or individual who breaches the law on procurement and other relevant law shall, depending on the nature and seriousness of violation, be disciplined, sanctioned administratively or liable to criminal prosecution; in case where violation of law on procurement causes damages to benefits of state, the lawful rights and benefits of organizations and individuals, the offender must pay compensation as prescribed by law.

2. In addition to being dealt with pursuant to the provisions in clause 1 of this article, depending on the nature and seriousness of violation, organizations and individuals breaching law on procurement shall be also banned participation in bidding activities and put into list of infringing contractors on National E-procurement System.

3. Competence of banning participation in bidding activities is prescribed as follows:

a) The competent persons shall issue decisions on banning participation in bidding activities for projects, estimate of procurement under their management; case of serious violation, they may suggest the Ministers, Heads of ministerial-level agencies, chairpersons of the People’s Committees of provinces or central-affiliated cities to issue decision on banning participation in bidding activities within management of Ministries, sectors and localities or suggest the Minister of Planning and Investment to issue decisions on banning participation in bidding activities nationwide;

b) The Ministers, Heads of ministerial-level agencies, chairpersons of the People’s Committees of provinces or central-affiliated cities shall issue decisions on banning participation in bidding activities within management of their Ministries, sectors and localities for cases suggested by the competent persons as prescribed at point a this Clause;

c) The Minister of Planning and Investment shall issue decisions on banning participation in bidding activities nationwide for cases suggested by the competent persons as prescribed at point a this Clause.

4. Disclosure of actions against violations:

a) Decisions on actions against violations must be sent to the dealt organizations and individuals, the relevant agencies and organizations, concurrently be sent to the Ministry of Planning and Investment for monitoring and summing up;

b) Decisions on actions against violations must be published on bidding newspaper, National E-procurement System.

5. The Government shall elaborate this Article.