JICA Rules on Measures against Persons Engaged in Fraudulent Practices, etc. in Projects of ODA Loan and Grant Aid (Provisional Translation)

Revision Rules No. 19 (Proc) of July 13, 2009 Rules No. 28 (Gen) of October 1, 2009
Rule No. 6 (Gen) of March 11, 2011 Rule No. 3 (Gen) of March 3, 2014
Rule No. 28 (Gen) of August 5, 2014 Rule No. 35 (Gen) of September 2, 2014

(Rules No. 43 (Proc) of October 1, 2008)

Article 1 (Purpose)

These Rules set forth matters necessary for the Japan International Cooperation Agency (hereinafter referred to as "JICA") to impose measures against persons or entities (hereinafter collectively referred to as "Person") who are determined to have been engaged in corrupt or fraudulent practices (hereinafter referred to as "Fraudulent Practices, etc") in connection with contracts (hereinafter referred to as "Procurement Contract") for the procurement of equipment, facilities or services necessary for Projects of ODA Loan and Grant Aid (hereinafter referred to as "Financial Support Projects") as entered into between JICA and a country that receives such Financial Support Projects and country's agency that implements the said project (hereinafter referred to as "Beneficiary Country"), in accordance with any agreement entered into between JICA and a Beneficiary Country for the implementation of the Financial Support Projects.

Article 2 (Deliberation)

The deliberation of the measures pursuant to these Rules shall be conducted under the jurisdiction of the Measures Deliberation Committee established under Article 16 of the Rules for Organization of JICA (Rules No. 4 (Gen) of 2004).

Article 3 (Measures)

  • 1. If it is determined that a Person selected, or likely to be selected, as a contractor for Procurement Contract (hereinafter referred to as "Contractor") is, pursuant to Article 5 of these Rules, has engaged in Fraudulent Practices, etc. falling under any of the conditions for measures set forth in the Exhibit attached to these Rules, JICA shall reject the approval of Contractor as a party to the Procurement Contract, or eliminate the said Procurement Contract from the scope of Financial Support Projects, except where it is determined to be clearly contrary to the interests of Beneficiary Country by taking into account, among others, the details of such Fraudulent Practices, etc. and the progress of the Financial Support Projects.
  • [Exhibit]
  • [Article 5]
  • 2.In case of Fraudulent Practices, etc. as referred to in Article 3.1 above, JICA shall reject the awarding of any new Procurement Contract to a Person engaged in the Fraudulent Practices, etc. or shall eliminate any Procurement Contract that may be newly awarded to that Person from the scope of Financial Support Projects, for a period commensurate to the circumstances and pursuant to the applicable item under the Exhibit and Articles 7 and 8. (The period under any measures imposed pursuant to this paragraph shall be hereinafter referred to as "Period of Measures.")
  • [Exhibit]
  • [Article 7]
  • [Article 8]
  • 3.In case of Article 3.1, JICA shall not approve the said Contractor from becoming a subcontractor under any other Procurement Contract during the Period of Measures. The said Contractor may also not become a sublessee of fund from a Beneficiary Country of Japanese ODA Loan Aid. The Measures in these cases shall apply to the said subcontractor and the sublessee.

Article 4

  • 1 . If a Person is engaged in Fraudulent Practices, etc. in connection with a project implemented by the Japanese government, JICA may apply measures against the said Person in accordance with the procedures set forth in these Rules, after consultations with the Japanese government on the measures to be implemented on Financial Support Projects.
  • 2 . If a Person is subject to measures pursuant to the Rules on the Suspension of Eligibility for Participation in Tenders for Contracts (No. 42 (Proc) of 2008), JICA may impose measures against the said Person in accordance with these Rules.

Article 5 (Determination of Measures)

  • 1.If JICA identifies any fact falling under any of the items set forth below, JICA shall determine that such fact falls under the conditions for measures set forth in the Exhibit.
  • (1) Contractor or any of its officers or employees is arrested or prosecuted without arrest, or becomes subject to punishment from an administrative organ, on suspicion of offense under any of the laws set forth in the conditions under the Exhibit.
  • [Exhibit]
  • (2) Contractor or any of its officers or employees acknowledges the involvement in Fraudulent Practices, etc. falling under any of the conditions set forth in Items 1 through 18 of the Exhibit.
  • [Exhibit]
  • (3) JICA determines as an objective fact that such case is Fraudulent Practices, etc. falling under any of the conditions set forth in Items 1 through 18 of the Exhibit.
  • [Exhibit]
  • 2.In the event that Contractor or any of its officers or employees violates an applicable laws and regulations of a foreign country equivalent to the Japanese laws and regulations set forth in the Exhibit, and receives a final and binding judgment from a judicial organ or a final decision on punishment from an administrative organ in the said foreign country, JICA may deem that such fact has fulfilled the conditions for measures.

Article 6 (Scope of Application of Measures)

  • 1.Any Procurement Contracts subject to the measures imposed pursuant to Article 3.2 of these Rules shall be a contract for which the procedures concerning Procurement Contracts to be covered by Financial Support Projects (hereinafter referred to as "Procurement Procedures") are carried out during the Period of Measures.
  • [Article 3.2]
  • 2.The Procurement Procedures referred to in Article 6.1 above shall mean procedural steps as set forth below from the commencement of the respective procedures to the execution of Procurement Contract, which are classified by the types of Procurement Contracts and the types of selection procedures by a Beneficiary Country as set forth below.
  • (1) Consulting contract
  • a) Advertisement for prequalification, if a counterparty to the contract is selected through international or local bidding and qualification screening of bidders is carried out in advance
  • b) Appointment, if a certain consultant is appointed as a counterparty to the contract
  • (2) Contract for procuring equipment, facilities or services
  • a) Advertisement for prequalification, if a counterparty to the contract is selected through international or local bidding and qualification screening of bidders is carried out in advance
  • b) Advertisement for bid, if a counterparty to the contract is selected through international or local bidding and qualification screening of bidders is not carried out in advance
  • c) Application for consent to the procurement method, if a counterparty to the contract is selected through a procurement method other than international or local bidding (including limited international bidding, international shopping and optional contract; hereinafter the same under this Article 6.2(2)) and JICA adopts an approval process on the procurement method
  • d) Appointment, if a counterparty to the contract is selected through a procurement method other than international or local bidding and JICA does not adopt an approval process on the procurement method
  • 3.JICA may decide not to apply the Measures based on the request from the Beneficiary Country if any of the following items applies to the said Procurement Contracts subject to the Measures under Article 6.2 above and if it is determined to be clearly against the interests of the Beneficiary Country, etc.
  • (1) In case of consulting contract, when the period of submission of proposal or estimate is closed
  • (2) In case of contract for procuring equipment, facilities or services, when the period of tendering is closed or when the period of submission of estimate for procurement method other than international competitive bidding or open competitive bidding is closed

Article 7 (Measures against Consortium or Subcontractor)

  • 1.JICA shall impose measures against any consortium that includes a member who has received measures pursuant to Article 3 or 4 of these Rules, for a period commensurate to the circumstances within the period range of the measures imposed against the said member.
  • [Article 3]
  • [Article 4]
  • 2.If JICA imposes measures against a consortium pursuant to Article 3 or 4 of these Rules, JICA shall also impose measures against any member in the said consortium (excluding those members determined clearly not to have responsibility for the said measures) for a period commensurate to the circumstances within the period range of measures imposed against the said consortium.
  • [Article 3]
  • [Article 4]
  • 3.If it becomes clear that a certain subcontractor should be responsible for the measures imposed pursuant to Article 3 or 4 of these Rules, JICA shall also impose measures against the said subcontractor for a period commensurate to the circumstances within the period range of measures imposed against the master contractor.
  • [Article 3]
  • [Article 4]

Article 8 (Extension, Reduction, or Exemption of the Period of Measures)

  • 1.If a Contractor who was involved in Fraudulent Practices, etc. falls under two or more conditions for measures under the Exhibit, the short-term measures and the long-term measures against the Contractor shall be the respective maximum periods under the short term and the long term provided for each applicable condition for the measures.
  • [Exhibit]
  • 2.If any of the following items applies to a Contractor involved in Fraudulent Practices, etc., the minimum period of measures against the Contractor shall be the twice the minimum period set forth in the applicable item under the Exhibit (or one and a half times if the initial Period of Measures is less than 1 month, or two and a half times if conditions for measures under Item 10 of the Exhibit applies).
  • (1) During the Period of Measures relating to any of the conditions set forth in the Exhibit or within 2 years after the expiration of the said period, the Contractor becomes subject to any of the conditions set forth in the Exhibit.
  • [Exhibit]
  • (2) At any time after the lapse of 2 years after the expiration of the Period of Measures relating to the conditions set forth in Item 6 of the Exhibit and before the lapse of 4 years following such expiration, the conditions set forth in Item 6 of the Exhibit become applicable to the Contractor again.
  • [Exhibit]
  • (3) At any time after the lapse of 2 years after the expiration of the Period of Measures relating to the conditions set forth in Items 7 through 16 of the Exhibit and before the lapse of 4 years following such expiration, the conditions set forth in Items 7 through 16 of the Exhibit become applicable to the Contractor again.
  • [Exhibit]
  • 3.If a Contractor of Procurement Contract involved in Fraudulent Practices, etc. has any extenuating circumstances, the application of measures may be exempted or the short-term Period of Measures under the items of the Exhibit or under Article 8.1 or 8.2 above may be further reduced.
  • [Exhibit]
  • 4.If it becomes necessary to further lengthen the period than the long-term Period of Measures under the items of the Exhibit and Article 8.1 above due to reason of extremely malicious nature or due to extremely serious consequences in relation to a Contractor involved in Fraudulent Practices, etc., the Period of Measures may be extended to twice the length of the said long term (provided, however, that if doubling the period of long term becomes longer than 36 months, such period will remain at 36 months).
  • [Exhibit]
  • 5.If, during the Period of Measures, any extenuating circumstance or reason of extremely malicious nature is found in relation to a Contractor involved in Fraudulent Practices, etc., the Period of Measures may be changed within the period range set forth in the applicable item of the Exhibit and in the preceding paragraphs above.
  • [Exhibit]
  • 6.If measures are implemented by the Japanese government, JICA may, upon consultations with the Japanese government, adjust its Period of Measures, etc., to a period which corresponds with the period range, etc. implemented by the Japanese government.
  • [Exhibit]

Article 9 (End or Termination of Measures)

  • 1.If the Period of Measures against the said Contractor (excluding individuals) expires and any of the following items applies to the said Contractor, the measures shall end.
  • (1) Submission of measures to prevent reoccurrences if the said Contractor became subject to the measures due to the fact that the said Contractor fell under any of the conditions set forth in Items 1 through 5, 17 or 28 of the Exhibit.
  • (2) Submission of compliance program which applies to the entire Contractor’s company if the said Contractor became subject to the measures due to the fact that the said Contractor fell under any of the conditions set forth in Items 6, 7, 10, 11 or 16 of the Exhibit.
  • 2.In case of the preceding paragraph, JICA shall review the contents of measures to prevent reoccurrences or compliance program submitted by the said Contractor.
  • 3.If it is found during the Period of Measures that a Contractor involved in the Fraudulent Practices, etc. was not responsible for the practices subject to the said measures, JICA shall cancel the measures against the said Contractor.

Article 10 (Notice of Measures)

If JICA imposes measures pursuant to Article 3, 4 or 11 of these Rules and changes the Period of Measures pursuant to Article 8.5 hereof or cancels measures pursuant to Article 9 above, JICA shall notify the applicable Beneficiary Country without delay.
[Article 3] [Article 4] [Article 8.5]

Article 11 (Circumstances not Resulting in Measures)

  • 1.JICA may give a warning to a Contractor or call to Contractor’s attention any necessary matters in either written or verbal form (hereinafter referred to as a “Warning”) if it is found necessary to do so in the cases where measures are not imposed.
  • 2.If a Contractor who received a Warning pursuant to Article 11.1 above repeatedly creates situations resulting in the issuance of a Warning under Article 11.1 above during a period of 1 year following the initial Warning, JICA may impose measures on the said Contractor within the period range set forth in the applicable item of the Exhibit.
  • [Exhibit]

Article 12 (Delegation of Authority to the Director General of the General Affairs Department)

Forms of documents and other administrative procedures necessary for the enforcement of these Rules shall be separately provided by the Director General of the General Affairs Department.

Supplementary Provisions
These Rules shall come into force from October 1, 2008.
Supplementary Provisions (Rules No. 19 (Proc) of July 13, 2009)
These Rules shall come into force from July 14, 2009.
Supplementary Provisions (Rules No. 28 (Gen) of October 1, 2009)
These Rules shall come into force from October 1, 2009.
Supplementary Provisions (Rules No. 6 (Gen) of March 11, 2011) These Rules shall come into force from March 11, 2011.
Supplementary Provisions (Rules No. 3 (Gen) of March 3, 2014) These Rules shall come into force from March 3, 2014.
Supplementary Provisions (Rules No. 28 (Gen) of August 5, 2014)
These Rules shall come into force from the date specified by the Director General [October 9, 2014] of the General Affairs Department. Supplementary Provisions (Rules No. 34 (Gen) of September 2, 2014)
These Rules shall come into force from September 2, 2014.

Exhibit

Criteria for Measures

Conditions for Measures Period
(False statements)
1 It is determined that a Contractor has made a false statement in any of the procurement documents and related documents for the Procurement Contract. Not less than 1 month and not more than 6 months from the date of the determination
(Negligent operations)
2 It is determined that a Contractor has caused a material defect due to negligent operations under the Procurement Contract. Not less than 1 month and not more than 3 months from the date of the determination
(Breach of contract)
3 In cases other than those in the foregoing two items, it is determined that a Contractor has caused a breach of the contract in the course of operations under the Procurement Contract. Not less than 2 weeks and not more than 4 months from the date of the determination
(Damage or injury to the public)
4 It is determined that a Contractor caused injury or death of or property damage to a member of the public in the course of operations relating to the Procurement Contract due to Contractor's improper safety management. Not less than 1 month and not more than 3 months from the date of the determination
(Damage or injury to a person involved in the operation)
5 It is determined that a Contractor caused injury or death of or property damage to a person involved in operations under the Procurement Contract in the course of operations due to Contractor's improper safety management. Not less than 2 weeks and not more than 2 months from the date of the determination
(Bribery)
6 Any individual, who is a Contractor or any officer or employee of a Contractor has conducted an act in violation of Article 198 (Giving of Bribes) of the Penal Code (Law No. 45 of 1907) or Article 18 (Prohibition of the provision of illicit profits, etc. to foreign public officials, etc.) of the Unfair Competition Prevention Act (Law No. 47 of 1993) to a related person in the Beneficiary Country or in the Contractor’s home country or to an official of JICA, any of whom is engaged in the Financial Support Project. In this case if the Contractor is subject to the measures in spite of having signed the pledge not to engage in fraudulent practices, etc in advance, the period of the measures shall be the longest term. Not less than 4 months and not more than 18 months from the date of the determination
(Violation of the Antimonopoly Act)
7 Contractor has violated Article 3 or Article 8, Item 1 of the Act on the Prohibition of Private Monopolization and the Maintenance of Fair Trade (Law No. 54 of 1947; hereinafter referred to as the "Antimonopoly Act") in connection with the Procurement Contract and is therefore determined to be inappropriate as a counterparty to a contract. Not less than 2 months and not more than 12 months from the date of the determination
8 In cases where a final and binding judgment, a definitive cease and desist order, a payment order for a surcharge, or a decision by the Japan Fair Trade Commission is issued based on a violation of the Antimonopoly Act, it becomes clear that a Contractor (or any of its officers or employees) is a ringleader. The Period of Measures shall be extended.
9 Contractor falls under Article 7-2, Paragraph 7 of the Antimonopoly Act. The Period of Measures shall be extended.
10 Contractor faces a criminal charge for the violation of Article 3 or Article 8, Paragraph 1, Item 1 of the Antimonopoly Act (including cases in which an individual who is a Contractor or an officer or employee of an entity which is a Contractor faces a criminal charge or is arrested). Not less than 6 months and not more than 36 months from the date on which JICA becomes aware of the criminal charge, arrest or prosecution
(Bid rigging)
11 Individual who is a Contractor or an officer or employee of a Contractor has committed an act of bid rigging (as defined in Article 96-6, Paragraph 2 of the Penal Code; hereinafter the same) in connection with the Procurement Contract. Not less than 3 months and not more than 12 months from the date of the determination
12 In cases where JICA obtains the information about bid rigging or where an official of JICA becomes aware of enough facts to suspect bid rigging, or an act conducted by a Contractor falls under bid rigging, despite the fact that the said Contractor submitted a written oath stating that the Contractor had not engaged in bid rigging. The Period of Measures shall be extended.
13 In cases where a final and binding judgment is rendered for obstruction of auctions or bids (an act that impairs the fairness of a public auction or bid, as defined in Article 96-6, Paragraph 1 of the Penal Code; hereinafter the same) or for bid rigging, it becomes clear that a Contractor (or any of its officers or workers) is a ringleader. The Period of Measures shall be extended.
14 In cases where it becomes clear that there is or was an act of bid rigging by a Contractor as a result of an investigation by the head of the competent ministry or agency under Article 3, Paragraph 4 of the Act on the Elimination and Prevention of Involvement in Bid Rigging, etc. and Punishments for Acts by Officials that Harm the Fairness of Bidding, etc. (Act No. 101 of 2002), the said Contractor engaged in any malicious act under Items 7 through 9 of this Exhibit in connection with the said act of bid rigging. The Period of Measures shall be extended.
15 In cases where an official of JICA or any other public institution is arrested or prosecuted without arrest on suspicion of obstruction of auctions or bids or bid rigging, a Contractor is engaged in a malicious act in relation to the suspected offense by the said official. The Period of Measures shall be extended.
15-2 In cases where an official of JICA or any other public institution violates an applicable law equivalent to the Antimonopoly Act or a bid rigging prevention law of a foreign country, receives a final and binding judgment from a judicial organ or a final decision on punishment from an administrative organ in the said foreign country, and a Contractor is engaged in a malicious act in relation to the suspected offense by the said official. The Period of Measures may be extended.
16 Officer or employee of an entity which is a Contractor or an individual who is a Contractor is arrested or prosecuted without arrest on suspicion of obstruction of auctions or bids or bid rigging. Not less than 6 months and not more than 36 months from the date on which JICA becomes aware of the criminal charge, arrest or prosecution
(Wrongful or dishonest acts)
17 In cases other than those provided in the foregoing items, it is determined that a Contractor has conducted a wrongful or dishonest act in connection with the Procurement Contract. Not less than 1 month and not more than 9 months from the date of the determination
18 In cases other than those provided in the foregoing items, a representative officer or any other equivalent person of Contractor is prosecuted on suspicion of an offense punishable by imprisonment or heavier penalty, or is sentenced to imprisonment or heavier penalty or to a fine under the Penal Code, and is therefore determined to be inappropriate as a counterparty to a contract with JICA. Not less than 1 month and not more than 9 months from the date of the determination
19 In accordance with these Rules and in connection with Procurement Contracts, a sanction is imposed against a person who is subject to measures pursuant to the Rules on the Suspension of Eligibility for Participation in Tenders for Contract. Within the period range set forth in these Rules in relation to the act subject to the said measure

[Article 198 of the Penal Code (Act No. 45 of 1907) ] [Article 18 of the Unfair Competition Prevention Act (Act No. 47 of 2003)] [Article 3 of these Rules] [Article 96-3, paragraph 2, of the Penal Code ] [Article 96-3, Paragraph 1, of the Penal Code] [Article 3, Paragraph 4, of the Act on the Elimination and Prevention of Involvement in Bid Rigging, etc. and Punishments for Acts by Employees that Harm the Fairness of Bidding, etc. (Act No. 101 of 2002)] [Penal Code] [JICA Rules on the Suspension of Eligibility for Participation in Tenders for Contract]

In case of discrepancy or dispute, the Japanese text shall prevail.