Bidding is one of the quite popular activities; investment in infrastructure construction as well as government procurement. So, these activities carried out mainly by government agencies; or public non-business units authorized by the state. Bidding activities play an important role in finding a reputable contractor as well as the most reasonable price to optimize costs. However, the reality is that there are cases where the bidding is only a formality, where there is a connection between the parties, causing a large loss of state assets. So how does the law handle the case of winning the contract against the regulations? Let’s find out this issue with Lawyer X.
Legal grounds:
– Bidding Law 2013
– Decree 63/2014/ND-CP
– Criminal Code 2015, Amendment and Supplement 2017
– Decree 50/2016/ND-CP
Currently, there are 4 forms of handling violations in the field of bidding, including:
– Warning, fine;
– Secondly, prohibit participation in bidding activities;
– Thirdly, criminal prosecution of individuals; violating the law on bidding which constitutes a crime;
– Lastly, officials and public employees who violate the law on bidding; also handle according to the provisions of the law on cadres and civil servants.
Warning, fine
In Clause 1, Article 121 of Decree 63/2014/ND-CP, warnings are applied; Fines applied to cases of bidding or winning bids contrary to regulations are as follows:
Warnings and fines can apply to organizations; individuals who violate the law on bidding by the law sanctioning administrative violations in the field of planning and investment. The handled acts include:
– Violations against regulations on contractor and investor selection plans;
– Then, violations against regulations on dossiers of invitation for expression of interest; so, dossiers of invitation for pre-qualification, bidding dossiers, dossiers of requirements;
– After that, violations against regulations on organization of selection of contractors and investors and evaluation of dossiers of expression of interest, application documents, bid dossiers, and dossiers of proposals;
– Violations of regulations on contract negotiation for; contractor selection and preliminary contract negotiation for investor selection
– Violations of regulations on posting information in bidding
Prohibit participation in bidding activities
Individuals and organizations that perform prohibited acts according to the provisions of the bidding law and violate regulations on labor use who banned from participating in bidding activities and put on a list; for violating contractors on the national bidding network system. Specifically:
– Prohibit participation in bidding activities from 03 to 05 years; for one of the acts of giving or receiving bribes; abusing positions and powers to illegally interfere in bidding activities; tender communication; cheat; hamper.
– Ban from participating in bidding activities from 01 to 03 years for one of the following acts; contract assignment; organizing the selection of contractors when the capital source for the bidding package; has not been determined, leading to arrears of the contractor.
– Ban from participating in bidding activities from 6 months to 1 year for one of the following acts; does not guarantee fairness; disclose and receive documents and information about contractors; illegal investors.
– Ban from participating in bidding activities from 01 to 05 years for violations; the use of labor specified in Clause 8, Article 12 of Decree 63/2014/ND-CP.
The illegal bid-winning agreement may be prosecuted for criminal liability
According to the provisions of Clause 3, Article 121 of Decree 63/2014/ND-CP; then the act of agreeing to win the contract in contravention of regulations may examine for penal liability; if there are enough elements to constitute a crime. Specifically, according to the provisions of Article 222 of the Penal Code 2015, amended and supplemented in 2017, if all the elements constituting a crime that met; they are penalized for “Violation of regulations on bidding, causing serious consequences”.
Regarding the crime of violating regulations on bidding, causing serious consequences; Article 222 of the Penal Code stipulates the levels of handling violations such as:
+ Being sentenced to non-custodial reform for up to 3 years of imprisonment from 1 to 5 years; besides, sentencing to between 3 and 12 years of imprisonment (Clause 2);
+ Then, being sentenced to between 10 years and 20 years of imprisonment (Clause 3);
+ Offenders may also ban from holding certain posts or doing certain jobs; from 1 year to 5 years or confiscation of part or all of the property (Clause 4).
Canceling, suspending, not recognizing the results of selecting the winning contractor against regulations
– Bid cancellation is a measure of competent persons, investors, and bid solicitors to handle acts of bidding, winning bids contrary to regulations and other relevant provisions of law by other organizations and individuals participating in bidding activities by issuing a decision to cancel the bid.
– Bidding suspension, non-recognition of contractor selection results applied when there is evidence that organizations or individuals participating in bidding activities have committed violations of the law on bidding.
Compensation for damage in the field of bidding, winning bids against regulations
According to the provisions of Article 124 of Decree 63/2014/ND-CP, for winning bids contrary to regulations, it is possible to have to pay specific damages:
Organizations and individuals that commit acts of violating the law on bidding, causing damage, shall have to pay compensation by the provisions of the law on compensation for damage and other relevant laws.
Damages here must be actual damages, arising from violations of the law on bidding. The level of compensation determined according to the provisions of the law on compensation for damage in Civil and Commercial.
See more:
Issuing construction permits for foreign contractors
Procedures for opening bids by Vietnamese law
Related question
The level of compensation for the above-mentioned acts is determined according to the actual Damage, arising from the act of violating the bidding law. The level of compensation is determined according to the provisions of the law on compensation for damage in Civil and Commercial.
For acts of bribery, taking advantage of positions and powers to illegally interfere in bidding activities, they may be banned from participating in bidding activities from 03 to 05 years. If there are sufficient elements to constitute a crime, they may be examined for penal liability according to the provisions of Article 222 of the Penal Code 2015.
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