Salient features of the ACC’s Debarment Rules 2013

The Anti-Corruption Commission (ACC) on November 4 held a meeting with major partner agencies towards implementation of the Debarment Rules, 2013 at the commission’s conference hall in Thimphu.

Debarment means a determination by the committee, the evaluation panel and the competent authority that a respondent is not responsible and is not eligible to be awarded contracts, or otherwise participate in non-procurement transactions.

Debarment may also include or consist of a determination that the respondent is not eligible to be a nominated sub-contractor, consultant, manufacture or supplier or service provider of an otherwise eligible firm being awarded a contract and receive the proceeds of any fund, or otherwise to participate further in the preparation or implementation of any public activity.

The meeting was convened to discuss the modalities of operationalization of the rules, effective functioning of the Debarment Committee and reach upon a common understanding on the way forward. As required by section (40) (3) of the Anti-Corruption Act of Bhutan 2011, the commission prepared the rules in close consultation with the PPPD and the Construction Development Board (CDB).

Comments on the draft were solicited from relevant agencies and individuals including the World Bank. The Debarment Rules was endorsed by the stakeholders during the final stakeholder’s consultation meeting held in October 2013 where more than 40 representatives from various public and private sectors agencies participated.

The main implementing partner agencies are the PPPD, the CDB and the ACC. The PPPD as the lead agency for procurement administration will function as the Secretariat to the Debarment Committee and will conduct administrative enquiries into complaints related to procurement of goods and services.

Similarly, CDB has to conduct administrative enquiries into complaints related to procurement of works. Amongst others, both PPPD and CDB will be represented in the Debarment Committee. The ACC has printed the Debarment Rules for distribution to the stakeholders to ensure collective implementation.

Debarment and suspension are serious actions and will be implemented in accordance with the rules as appropriate, and used only in the public interest and for the Government’s protection.

Public agencies may debar, suspend or exclude a bidder or respondent if it is so provided in the contract without any investigation as envisaged in the rules.

Causes or sanctionable practices Exclusion of bidders

Public agencies shall exclude a bidder or respondent from participation in public procurements or non-procurement transactions in accordance with these rules on any one of the following grounds, he or she is insolvent or is in receivership or is bankrupt or is in the process of being wound up or have entered into an arrangement with creditors, his or her affairs are being administered by a court, judicial officer or by an appointed liquidator.

A firm shall be excluded if as a matter of law or official regulation, Bhutan prohibits commercial relations with the country in which the firm is constitute, incorporate or registered.

The committee, the evaluation panel and the competent Authority may suspend, debar or sanction a respondent for any of the causes cited in these rules.

Conviction or civil judgment

The respondent may be suspended, debarred for conviction of or civil judgment for commission or attempted commission of a criminal offense in connection with obtaining or attempting to obtain a contract or subcontract or modification thereof, whether public or private or non-procurement transactions or modification thereof, violation or attempted violation of any other applicable laws, bye-laws, rules or regulations relating to the submission of bids, proposals, offers or claims, commission or attempted commission of causes for debarment or sanctionable practices as defined in these rules in connection with obtain a contract or subcontract or modification ,whether public or private, or non procurement transaction or modification, commission or attempted commission of any other offense, or engaging in, or attempting to engage in conduct indicting a lack of business integrity, truthfulness, veracity or honesty that seriously affects the responsibility of the respondent.

Investigation of complaints

Every public agency shall established an effective system for filing complaints concerning causes for debarment through such means as free phone telephone line, post-box and internet, Any person may, if he/she based on reasonable ground believes that another or an entity has engaged in any of the causes for debarment, file a complaint with the commission in cases of corrupt practices or any offenses under the Act or the public agency and the central agency in other cases, every public agency shall establish, maintain and record in a chronological log complaints or information otherwise received, which shall be permanently maintained. The log shall, at a minimum, include the following, the name and address of an alleged offender, the source of the information and description of the complaint or information.

False complaint

If a person willfully makes or causes to be make a false or misleading complaint will be guilty of an offence under the Act.

Assessment of complaints

The commission or the public agency, as the case may be, shall within five days after receipt of complaints or information otherwise received, perform an initial assessment of such complaints or information to determine, whether such complaint relates to causes for debarment, whether such complaint has credibility and whether the matter is of sufficient gravity to warrant investigation, the public agency shall upon initial assessment refers the complaint to central agency if it determines that the complaint warrants investigation, the public agency shall inform the complainant of its decision of as to why it warrants investigation or decline investigation, sooner it completes assessment, through any medium, if the complainant believes the public agency had declined investigation without reasonable justification, may lodge the complaint with the central agency.

The commission or central agency shall, semi-annually, file a report with the committee summarizing the reasons for all decisions not to investigate allegation concerning causes for debarment, if the commission or central agency knows or suspects that a person has committed an act that constitutes the causes or sanctionable practices, shall refer such information with a proposal for debarment proceeding to the evaluation panel in a manner in which such assessment shall be carried out.

Investigation of complaints

Upon receiving an initial assessment report or referred complaint, the central agency shall form an investigation panel which shall be represented by a member from the public agency.

The central agency shall, upon receiving initial assessment, from the commission or the public agency and if it believes that the complaints reach the threshold, investigates such complaints or information to ascertain whether bidders or suppliers have engaged in one of the causes for debarment.

If there is sufficient evidence to prove the allegation, the allegation is considered substantiated and the allegation is considered unsubstantiated if there is sufficient evidence to prove or disprove it and unfounded if the allegation has no basis in fact.

The central agency shall, if it substantiates a case or if it believes that the investigation unearthed important lessons that should be shared with other public agencies, produce a final investigation report.

The committee shall establish effective procedure for deciding whether to commence suspend or terminate an investigation of complaints or information and the manner in which such investigation shall be conducted.

The meeting was represented by 24 participants from the Public Procurement Policy Division (PPPD), Ministry of Finance, Construction Development Board (CDB), Department of Industry, Ministry of Economic Affairs, and ACC.

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