JICA Rules on Measures to Suspend Eligibility for Participation in Tenders for Contracts (Provisional Translation)

Revision Rule No. 21 (Proc) of August 11, 2009 Rule No. 27 (Gen) of October 1, 2009
Rule No. 13 (Gen) of April 1, 2010 Rule No. 5 (Gen) of March 11, 2011
Rule No. 2 (Gen) of March 3, 2014 Rule No. 27 of August 5, 2014
Rule No. 34 (Gen) of September 2, 2014 Rule No. 2 of January 23, 2015

(Rule No. 42 (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 to suspend eligibility for participation in tenders for contracts (hereinafter referred to as "Measures") against persons or legal 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 any of the contracts to which JICA is a party.

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 (Rule No. 4 (Gen) of 2004).

Article 3 (Measures)

  • 1.If a Person who desires to enter into a contract with JICA (i.e. a Person who has satisfied the conditions for participation as a result of the qualifications screening conducted by JICA pursuant to Article 3 of the Detailed Rules of General Contracts (Detailed Rules No. 8 (Proc) of 2003) or Article 3 of the Detailed Rules of Contracts on Consultants (Detailed Rules No. 9 (Proc) of 2003); hereinafter referred to as "Qualified Candidate") falls under any of the conditions listed in the Exhibit "Criteria for Measures" attached to these Rules, JICA shall impose Measures against the Qualified Candidate for a period commensurate to the circumstances in accordance with the Exhibit.
  • [Exhibit]
  • 2.JICA shall not allow the Qualified Candidate to participate in general tenders, limited tenders, proposal-based tenders, or any other tenders for contracts to be awarded by JICA during the period of Measures set forth in the preceding paragraph. If the Qualified Candidate under Measures has already been nominated as a participant to the tender for contract to be awarded by JICA, such nomination shall be canceled.
  • 3.JICA shall not approve any Qualified Candidate under Measures to become a subcontractor, guarantor or agent for any contract to be awarded by JICA.
  • 4.JICA shall not enter into a contract with any Qualified Candidate under Measures.

Article 4

If JICA imposes Measures pursuant to the JICA Rules on Measures against Persons Engaged in Fraudulent Practices, etc. in Projects of ODA Loan and Grant Aid (Rule No. 43 (Proc) of 2008), JICA may, in principle, impose Measures in accordance with these Rules in relation to contracts to be awarded by JICA.

Article 5 (Determination of Measures)

  • 1.If JICA finds any fact falling under any of the items set forth below, JICA shall determine that the conditions for Measures set forth in the Exhibit are met.
  • (1) Qualified Candidate or any of its officers or employees is arrested or prosecuted without being arrested, or becomes subject to punishment from an administrative organ on a suspicion of offense under any of the laws and regulations set forth in the conditions under the Exhibit.
  • [Exhibit]
  • (2) Qualified Candidate or any of its officers or employees acknowledges the involvement in Fraudulent Practices, etc. which falls under any of the conditions set forth in Items 1 through 20 of the Exhibit.
  • [Exhibit]
  • (3) With respect to any cases other than those set forth in the preceding two items, 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 20 of the Exhibit.
  • [Exhibit]
  • 2.In the event that Qualified Candidate or any of its officers or employees violates 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 the 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 (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 and within the period range of 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 who is a Qualified Candidate (excluding those members determined clearly not to have responsibility for the said Measures) for a period commensurate to the circumstances and within the period range of the 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 and within the period range of Measures imposed against the master contractor.
  • [Article 3]
  • [Article 4]

Article 7 (Extension, Reduction, or Exemption of the Period of Measures)

  • 1.If a Qualified Candidate 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 said Qualified Candidate 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 Qualified Candidate involved in Fraudulent Practices, etc., the minimum period of Measures against the Qualified Candidate 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 11 of the Exhibit applies).
  • [Exhibit]
  • (1) During the period of Measures relating to any of the conditions for Measures set forth in the items under the Exhibit or within 2 years after the expiration of the said period, any of the conditions for Measures set forth in the items under the Exhibit becomes applicable to the Qualified Candidate again.
  • [Exhibit]
  • (2) At any time after the lapse of 2 years following the expiration of the period of Measures relating to the conditions for Measures set forth in Item 7 of the Exhibit and before the lapse of 4 years following the said expiration, the conditions for Measures set forth in Item 7 of the Exhibit become applicable to the Qualified Candidate again.
  • [Exhibit]
  • (3) At any time after the lapse of 2 years following the expiration of the period of Measures relating to the conditions for Measures set forth in Items 8 and 18 of the Exhibit and before the lapse of 4 years following the said expiration, the conditions for Measures set forth in Items 8 and 18 of the Exhibit become applicable to the Qualified Candidate again.
  • [Exhibit]
  • 3.If a Qualified Candidate involved in Fraudulent Practices, etc. has any extenuating circumstance, the application of Measures may be exempted or the period of short term Measures under the items of the Exhibit or under Article 7.1 or 7.2 above may be further reduced.
  • [Exhibit]
  • 4.If it becomes necessary to further lengthen the period than the long term of Measures under the items of the Exhibit and Article 7.1 above due to reason of extremely malicious nature or due to extremely serious consequences in relation to a Qualified Candidate 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 Qualified Candidate 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.

Article 8 (End or Termination of Measures)

  • 1.If the period of Measures against the said Qualified Candidate (excluding individuals) expires and any of the following items applies to the said Qualified Candidate, the Measures shall end.
  • (1) Submission of Measures to prevent reoccurrences if the said Qualified Candidate became subject to the Measures due to the fact that the said Qualified Candidate fell under any of the conditions set forth in Items 1 through 6, 19 or 20 of the Exhibit.
  • (2) Submission of compliance program which applies to the entire Qualified Candidate’s company if the said Qualified Candidate became subject to the Measures due to the fact that the said Qualified Candidate fell under any of the conditions set forth in Items 7, 8, 11, 13 or 18 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 Qualified Candidate.
  • 3.If it is found during the period of Measures that a Qualified Candidate 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 Qualified Candidate.

Article 9 (Notice of Measures)

If JICA imposes Measures pursuant to Article 3, 4, 6 or 11 of these Rules and changes the period of Measures pursuant to Article 7.5 hereof or cancels the Measures pursuant to Article 8 above, JICA shall notify the Qualified Candidate without delay.
[Article 3] [Article 4] [Article 6] [Article 11] [Article 7.5]

Article 10 (Deleted)

Article 11 (Circumstances not Resulting in Measures)

  • 1.JICA may give a warning to a Qualified Candidate or call Qualified Candidate's attention in either written or oral 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 Qualified Candidate who received a Warning pursuant to Article 11.1 above repeatedly causes a situation resulting in the issuance of a Warning under Article 11.1 above during the period of 1 year following the initial Warning, JICA may impose Measures against the said Qualified Candidate 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. 21 (Proc) of August 11, 2009)
These Rules shall come into force from August 14, 2009.
Supplementary Provisions (Rule No. 27 (Gen) of October 1, 2009)
These Rules shall come into force from October 1, 2009.
Supplementary Provisions (Rule No. 13 (Gen) of April 1, 2010)
These Rules shall come into force from April 1, 2010.
Supplementary Provisions (Rule No. 5 (Gen) of March 11, 2011)
These Rules shall come into force from March 11, 2011.
Supplementary Provisions (Rule No. 2 (Gen) of March 3, 2014)
These Rules shall come into force from March 3, 2014.
Supplementary Provisions (Rule No. 27 (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 (Rule No. 34 (Gen) of September 2, 2014)
These Rules shall come into force from September 2, 2014.
Supplementary Provisions (Rule No. 2 (Gen) of January 23, 2015)
These Rules shall come into force from January 23, 2015.

Exhibit

Criteria for Measures

Conditions for Measures Period
(False statements)
1 It is determined that a Qualified Candidate has made a false statement in any of the documents submitted to JICA for the qualifications screening in connection with general tenders or limited tenders for a contract to be awarded by JICA and is therefore determined to be inappropriate as a counterparty to a contract with JICA. 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 Qualified Candidate has conducted negligent operations with regard to a contract with JICA. Not less than 1 month and not more than 6 months from the date of the determination
3 It is determined that a Qualified Candidate's operations are defective with regard to a contract with JICA. Not less than 1 month and not more than 6 months from the date of the determination
(Breach of contract)
4 In any cases other than those described in the foregoing two items, it is determined that a Qualified Candidate has caused a breach of the contract with JICA in the course of operations and is therefore determined to be inappropriate as a counterparty to a contract with JICA. Not less than 2 weeks and not more than 4 months from the date of the determination
(Damage or injury to the public)
5 It is determined that a Qualified Candidate caused injury or death of or property damage to a member of the public in the course of operations relating to a contract with JICA due to Qualified Candidate's improper safety management. Not less than 1 month and not more than 6 months from the date of the determination
(Damage or injury to a person involved in the operation)
6 It is determined that a Qualified Candidate caused injury or death of or property damage to a person involved in the contract with JICA in the course of operations due to Qualified Candidate's improper safety management. Not less than 2 weeks and not more than 4 months from the date of the determination
(Bribery)
7 Any individual, who is a Qualified Candidate, or any officer or employee of a Qualified Candidate 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 Qualified Candidate's home country or to an official of JICA. In this case if the Qualified Candidate is subject to the measures in spite of having pledged 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)
8 Qualified Candidate has violated Article 3, Article 6 or Article 8, Paragraph 1, Item 1 of the Act on the Prohibition of Private Monopolization and the Maintenance of Fair Trade (Act No. 54 of 1947; hereinafter referred to as the "Antimonopoly Act") in connection with the operations for a contract with JICA and is therefore determined to be inappropriate as a counterparty to a contract with JICA (excluding cases referred to in Item 10 of this Exhibit). Not less than 3 months and not more than 12 months from the date of the determination
9 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 has been issued based on a violation of the Antimonopoly Act, it becomes clear that a Qualified Candidate (or its officer or employee) is a ringleader. The period of Measures shall be extended.
10 Qualified Candidate (or any of its officers or employees) falls under Article 7-2, Paragraph 7 of the Antimonopoly Act. The period of Measures shall be extended.
11 Qualified Candidate faces a criminal charge for the violation of Article 3 or Article 8, Item 1 of the Antimonopoly Act (including cases where the Qualified Candidate participates in contract tenders and where any of its officers or employees of an entity which is a Qualified Candidate or an individual who is a Qualified Candidate or his/her employee 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
12 In cases where an official of JICA or any other public institution receives a final and binding judgment from a judicial organ or a final decision on punishment from an administrative organ in a foreign country in violation of its applicable law equivalent to the Antimonopoly Act, a Qualified Candidate has engaged in a malicious act corresponding to the alleged offense by the said official. The period of Measures may be extended.
(Bid rigging)
13 Individual who is a Qualified Candidate or an officer or employee of a Qualified Candidate has committed an act of bid rigging (as defined in Article 96-6, Paragraph 2 of the Penal Code (Act No. 45 of 1907); hereinafter the same) in connection with operations with regard to a contract with JICA (excluding the cases referred to in Item 10 of this Exhibit). Not less than 4 months and not more than 12 months from the date of the determination
14 In cases where JICA obtains information about bid rigging or where an official of JICA becomes aware of enough facts to suspect bid rigging, an act conducted by a Qualified Candidate falls under bid rigging, despite the fact that the said Qualified Candidate submitted a written oath stating that the Qualified Candidate had not engaged in bid rigging. The period of Measures shall be extended.
15 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 Qualified Candidate (or any of its officers or employees) is a ringleader. The period of Measures shall be extended.
16 In cases where it becomes clear that there is or was an act of bid rigging by a Qualified Candidate as a result of an investigation by the head of the competent ministry or agency under Article 3, Paragraph 4 of the Act on 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 Qualified Candidate is 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.
17 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 Qualified Candidate is engaged in a malicious act corresponding to the suspected offense by the said official. The period of Measures shall be extended.
17-2 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 Qualified Candidate is engaged in a malicious act corresponding to the suspected offense by the said official. The period of Measures may be extended.
18 Officer or employee of an entity which is a Qualified Candidate or an individual who is a Qualified Candidate or his/her employee, 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 accusation, arrest or prosecution
(Wrongful or dishonest acts)
19 In cases other than those provided in the foregoing items, a Qualified Candidate is engaged in a wrongful or dishonest act 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
20 In cases other than those provided in the foregoing items, a representative officer or any other equivalent person of Qualified Candidate 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
21 Qualified Candidate is subject to Measures pursuant to the JICA Rules on Measures against Persons Engaged in Fraudulent Practices, etc. in Projects of ODA Loan and Grant Aid (Rule No. 43 (Proc) of 2008). Within the period range set forth in these Rules in relation to the said Measures

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