GUIDELINES IN DISQUALIFICATION OF A FIRM OR INDIVIDUAL FROM COMPETING FOR A CONTRACT (DEBARMENT GUIDELINES)

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1 GUIDELINES IN DISQUALIFICATION OF A FIRM OR INDIVIDUAL FROM COMPETING FOR A CONTRACT (DEBARMENT GUIDELINES) 1. PURPOSE These guidelines set forth rules necessary for Sanction Board of Japan International Cooperation System (hereinafter referred to as JICS ), which is established in accordance with JICS s organization regulations Establishment of Sanction Board (Notification No.1 of 1 February 2007) (hereinafter referred to as Sanction Board ), to determine and impose debarment (hereinafter referred to as Debarment ) against a Respondent (as defined in Article 2) from being awarded or nominated for a contract for projects and/or programs (collectively, hereinafter referred to as Project ) to be implemented by grant funded to recipient countries. 2. ACCEDENCE AND INDICATION OF INTENTION BY RECIPIENTS, ETC JICS shall impose Debarment against a firm or an individual (hereinafter referred to as Respondent ) that competes or is nominated for a contract relating to supply of materials and equipment, provision of services, construction works, or employment of consultants, which are necessary for the Project, in the case where the Debarment against the Respondent is demanded by the Government of Japan to the government of the recipient country, and such recipient country indicates its intention to agree with such Debarment JICS, notwithstanding sub-clause 2-1 above, may impose Debarment against a Respondent when the Respondent is determined to fall under any of items in the Table of Sanction Criteria attached herewith (hereinafter referred to as Appended Table ), provided that the government of the recipient country or the international organization as an orderer for the Project (hereinafter collectively referred to as Recipient, etc. ) indicate in writing its intention to demand or consent to the Debarment In the case where Recipient, etc., impose, or indicates their intention to impose, Debarment against a Respondent, JICS may impose the Debarment or any sanction equivalent to the Debarment against such Respondent. 3. DEBARMENT 3-1. JICS shall prescribe a period of Debarment (hereinafter referred to as Debarment Period ) against a Respondent under Article 2 (hereinafter, Respondent subject to 1

2 Debarment Period referred to as Debarred Respondent ) in accordance with the measures taken by the Government of Japan and/or the Recipient, etc. under Article 2 or in the case where such measures are not taken, in accordance with the items in the Appended Table JICS shall not invite a Debarred Respondent to any general competitive bidding process conducted by JICS during his/her/its Debarment Period JICS shall not nominate a Debarred Respondent for a contract during his/her/its Debarment Period in the case of any competition including limited competitive bidding, shopping, and request for proposal to be conducted by JICS. JICS shall withdraw such nomination when any Debarred Respondent has been nominated during his/her/its Debarment Period JICS shall not invite or nominate any Respondent to any general competitive bidding process conducted by JICS during the period when such Respondent is debarred by the Government of Japan or the Japan International Cooperation Agency (hereinafter referred to as JICA ) JICS shall not invite or nominate any Respondent to any general competitive bidding process conducted by JICS during the period when such Respondent is debarred by the Recipient, etc. 4. DEBARMENT OF SUBCONTRACTOR AND JOINT-VENTURE 4-1. In the case where JICS imposes Debarment against a Respondent in accordance with Article 2 and 3, in the event that it becomes clear that a subcontractor of Respondent is also responsible for such Debarment, JICS shall also impose Debarment against such subcontractor for a period no more than the Debarment Period imposed against the prime contractor In the case where JICS imposes Debarment against a joint venture in accordance with Article 2 and 3, JICS shall also impose Debarment against members of joint venture for a period no more than the Debarment Period imposed against the joint venture (except for any member who is determined not to be responsible for such Debarment) JICS shall impose Debarment against a joint venture that includes any member against whom the Debarment is imposed in accordance with sub-clause 3-1, 4-1 or 4-2, for a period no more than the Debarment Period imposed against the said member. 2

3 5. EXCEPTIONS TO DEBARMENT PERIOD 5-1. If a Respondent falls under two or more items in the Appended Table in connection with Debarment under Article 2 and 3, the shortest Debarment Period and longest Debarment Period prescribed in the corresponding items shall be the shortest Debarment Period and longest Debarment Period respectively If a Respondent falls under any of the following items in connection with Debarment under Article 2 and 3, the shortest Debarment Period shall be the period equal to twice the shortest Debarment Period prescribed in the corresponding item in the Appended Table provided, however, that in the case where the initial Debarment Period is less than one (1) month, the shortest Debarment Period shall be 1.5 times the shortest Debarment Period prescribed in the corresponding item in the Appended Table. (a) The Respondent falls under any of the items in the Appended Table again during the original Debarment Period under the corresponding item in the Appended Table or before the lapse of twelve (12) months after the completion of the original Debarment Period. (b) The Respondent, who has been debarred under item 1 of the Appended Table, falls under item 1 of the Appended Table again before the lapse of three years after the completion of the original Debarment Period. (c) The Respondent, who has been debarred under item 2 of the Appended Table, falls under item 2 of the Appended Table again before the lapse of three (3) years after completion of the original Debarment Period In the event that due to extenuating circumstances, it is necessary to shorten the shortest Debarment Period imposed against the Respondent under the items in the Appended Table and sub-clauses 5-1 and 5-2, JICS may shorten the shortest Debarment Period up to half of the original shortest Debarment Period In the event that due to the reason of extremely malicious nature or extremely serious consequences, it is necessary to extend the longest Debarment Period to be imposed against the Respondent under the items in the Appended Table and sub-clause 5-1, JICS may extend the longest Debarment Period up to twice the original longest Debarment Period When it has become apparent that a Debarred Respondent is under extenuating circumstances or has the reason of extremely malicious nature, JICS may change the 3

4 Debarment Period for a period no more than the Debarment Period prescribed in the items in the Appended Table and sub-clauses 5-1 to 5-4 above. 6. EXCEPTIONS TO COUNTRIES AND REGIONS SUBJECT TO DEBARMENT 6-1. In the case where a Respondent falls under item 5 of the Appended Table in imposing Debarment under Article 2 and 3, JICS may limit the countries and/or regions where the Debarment will be imposed, by taking into account the degree of inappropriateness of the safety control measures taken by the Respondent In the event that it becomes clear during Debarment Period that there is any special reason which should be considered in relation to safety control measures taken by Debarred Respondent against whom the Debarment limited to certain countries and/or regions under sub-clause 6-1 has been imposed, JICS may change the countries and/or regions which are subject to the Debarment in relation to such Debarred Respondent. 7. LIFT OF DEBARMENT JICS shall lift Debarment imposed against Debarred Respondent when it is determined that such Debarred Respondent is not responsible for the case in question. 8. NOTICE OF DEBARMENT 8-1. JICS shall notify the Debarred Respondent in writing by using the attached Form of Notice without delay when JICS imposes Debarment under Articles 2 and 3, changes Debarment Period under sub-clause 5-5, changes debarred countries and/or regions under sub-clause 6-2, or lifts Debarment under Article In the case where JICS notifies Debarment under sub-clause 8-1, JICS shall request the Debarred Respondent to submit a report on remedial measures as necessary in the event that the reason for the Debarment was relating to the Debarred Respondent s business under a contract with JICS. 9. RESTRICTIONS ON SINGLE TENDERING JICS shall not have a Debarred Respondent become a counterparty to a single tendering; provided, however, that JICS may have a Debarred Respondent become a counterparty to a single tendering if such single tendering falls under certain provisions of JICS s procurement guidelines and is approved by JICS in advance. 4

5 10. NO SUBCONTRACTING JICS shall not approve a counterparty of a contract to subcontract or assign the whole or a part of his/her/its contract to Debarred Respondent or to cause Debarred Respondent to guarantee the completion of performance of such contract. 11. OTHER SANCTIONS In case that JICS does not impose a Debarment against a Respondent, JICS may issue a written or verbal warning or reminder against such Respondent as it deems necessary If a Respondent repeatedly falls into situations in which such Respondent receives a warning or reminder as prescribed in sub-clause 11-1 before the lapse of one (1) year after the day when the Respondent received the first sanction under sub-clause 11-1, JICS may impose Debarment to such Respondent for a period no more than the period prescribed in the items in the Appended Table. 5

6 Attachment TABLE OF SANCTION CRITERIA Item Conditions for Sanction Period of Sanction 1 To conduct an act in violation of Article 198 (Giving of Bribes) of the Penal Code or Article 18 (Prohibition against Provision of Wrongful Gain to Foreign Public Officials) of the Unfair Competition Prevention Act in connection with ODA projects implemented by the Government of Japan. 2 To conduct an act in violation of Article 3 or Article 8, paragraph 1, item 1 of Act on Prohibition of Private Monopolization and Maintenance of Fair Trade in connection with ODA projects implemented by the Government of Japan. not more than 9 months 3 To conduct an act in violation of Article 96-3, paragraph 2 of the Penal Code in connection with ODA projects implemented by the Government of Japan. 4 To conduct a wrongful or dishonest act such as (i) making a false entry in documents for tendering and/or contracting which are submitted to the government of recipient country or the Government of Japan, JICA, other institution designated by the Government of Japan, international organizations as a sponsor of the fund, or JICS, (ii) negligence, (iii) defect or (iv) breach of contract, in connection with ODA projects implemented by the Government of Japan or projects implemented by international organizations. 5 To cause damage due to improper safety control in connection with ODA projects implemented by the Government of Japan. Not less than 2 weeks and Not less than 2 weeks and not more than 6 months 6 To conduct an act in violation of other countries laws and regulations being equal to those of Japan stated in Items 1 to 3 above in connection with ODA projects implemented by the Government of Japan. 6

7 Attachment Form of Notification Date: Ref. No.: JICS( ) - - (Name of President) (Name of Company) NOTICE OF DEBARMENT We, Japan International Cooperation System, hereby notify you of our imposition of the following debarment against your company, pursuant to our organization rules for implementation. Applying Item: 措置要件 ( 措置基準表の号 ) を記載 Debarment Period: 入札参加停止又は指名停止の措置対象期間の始期及び終期を記載 Country and/or Area to be debarred: 措置対象国又は地域を記載 Grounds of Debarment: 措置要件に該当する事実について発生日時場所概要等を記載和文様式では今後はこのような事態が生ずることのないよう十分ご注意くださいますようお願いいたします ( 又は 2 今後はこのような事態が生ずることがないよう十分ご注意するとともに今後の改善措置の詳細について至急報告いただきますようお願いいたします ) という依頼文が挿入されていますがこのような依頼の文章は非常に日本的な感じがするので英文レターでは不要とする他方措置規定上改善策の報告を受ける必要がある場合次の一文を追加する We hereby request you to consider taking remedial measures and provide us with a concrete plan which provides the details and implementation date(s) of such measures. Iichi MISHIMA President Japan International Cooperation System 7

Period for Exception to Lack of Novelty for Designs Extended to One Year

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