Public announcement manual for information related to tendering and contracting
With the goal of proper tendering and contracting for public works, promotion of guarantee of transparency, advancement of competitiveness, rigorous elimination of unfair behavior, and guarantee of fair work completion were mandated in the "Law for the Promotion of Proper Tendering and Contracting for Public Works" put into effect in fiscal 2002 (Law Nr. 127 of 2001, subsequently called the "Act for Promoting Proper Tendering and Contracting for Public Works").
In regard to securing transparency in tendering and contracting, as it has been established as a duty by the Act for Promoting Proper Tendering and Contracting for Public Works, proper announcement of information is a basic requirement.
In regard to matters that must be publicly announced by law, the names of selected business operators and sums are often published as such; however, regarding documents that indicate the reasons why certain measures or decisions were made, the problem of what writing style is appropriate for their publication has been pointed out in that judgment is definitely not always easy for the persons responsible at regional public organizations that until now have not been making public announcements. From this standpoint, together with showing general points of precaution for publication of such documents, this manual was produced using example documents that have actually been published by regional public organizations.
1. Introduction
1.Significance of publication of information for tendering and contracting
Because public works utilize funds from taxpayers as the capital, there must not be any impropriety with regard to tendering and contracting.
The Act for Promoting Proper Tendering and Contracting for Public Works was designed to set the obligations of contracting organizations to publicly announce the internal procedures used for administrative work and the decision process that leads to selection of contractors, to secure accountability for the citizens, and at the same time, to prevent impropriety. Furthermore, public announcement of information also eliminates improprieties targeted at obtaining information.
2.Overview of the information publication system for tendering and contracting according to the Act for Promoting Proper Tendering and Contracting for Public Works
(1)Published content
In regard to publication of information in accordance with the Act for Promoting Proper Tendering and Contracting for Public Works, there are items that are regarded as requiring efforts to publish as defined in the reasonability guidelines, items where disclosure to the contracting organization is an obligation based on law, and items that regional public organizations are obligated to publish. The items are as follows (for reference, see Article 8 of the Act for Promoting Proper Tendering and Contracting for Public Works and Article 7 of the Application Ordinance).
i) Items to be publicly announced in advance
- Qualifications for participation in general competitions and the registry of qualified persons
- Qualifications for participation in nominated competitions and the registry of qualified persons
- Nomination criteria
ii) Items to be publicly announced after conclusion of contracts for each construction work
- Qualifications for limited general competition tendering if additional qualification requirements have been determined
- Names of nominated businesses and reasons for nomination
- Names of tenderers and tender amounts
- Name of winning tenderers and amounts of the winning tenders
- Reason for selection of winning tenderers based on next in order in the case of a low tender price investigation
- Names of tenderers who did not meet the minimum tender price
- Reasons for employing a comprehensive evaluation method and reasons for selection of winning tenders
- Terms of contracts (contract parties, overview of the construction work, duration of the construction work, and volume of the contract)
- Reasons for negotiated contracts
iii) Items to be publicly announced after contract changes
- Terms of contract changes when contract changes occur because of changes in contract volume and the reasons for the changes
(2)Public announcement procedure
- Public announcements are to be made without delay for items defined in (1) i) above or when they are changed.
- Items in accordance with the above (1) ii) and iii) are to be publicly announced for at least one year immediately after individual agreements are concluded or the terms thereof are changed. With the exception of contract terms and the reasons for negotiated contracts, they may also be publicly announced before the conclusion of a contract if the involved parties decide to do so.
- Concerning the above (1) iii), in the case changes have been made to the terms of an individual agreement after a contract is concluded, the changes need only be announced if they concern changes to the contract volume by weighing against each other the necessity for promotion of transparency in tendering and contracting and the increase in administration costs resulting from the office work.
- Concerning the items in the above (1) ii) and iii), public announcements are not required for construction work with an estimated volume of less than 2.5 million JPY or construction work that must remain secret due to a close relationship with public safety or maintenance of public order.
- Public announcements should be made in places easily accessible to the public, in designated areas, or on the internet.
2. Other items to consider in creation of public announcement materials
Concerning the content and procedure of public announcements as defined by law, when making a public announcement of the reasons for a measure or a decision using a public announcement procedure in accordance with 1 (2), the names of the nominated business persons and volume of the contract should not be the only matters announced; public announcements should be made based on the following precautions.
(1) In cases of public announcements of measures or decisions, the underlying reasons for the policy decision should be stated as concretely and objectively as possible. From this standpoint, the decision standards should be drafted and made public in advance where possible, and the results of inspections concerning the appropriateness of these standards should also be made public.
(2) From the standpoint of ensuring that they are easy for the public to understand, public announcements should be made simply and concisely.
(3) When it can be determined that it does not unfairly violate the rights of the companies involved in tendering and contracting and that it is appropriate as public announcement material, such as by containing content that can be easily understood by third parties, and from the standpoint of creating transparency in the internal policy decision process, it is not prohibited to use notifications to applicants and draft documents as they are.
(4) From the point of view of lowering the office work burden, it is desirable to decide such things as writing style in advance.
3. Statement examples
The following items are attached as appended documents for matters that have actually been publicly announced. Organizations should create their own public announcement materials with reference to these examples.
(1) Reasons for not allowing persons to participate in competitive tendering
(2) Reasons for nominations for a limited competitive tendering
(3) Reasons for rejections due to a low tender price investigation
(4) Reasons for employing comprehensive evaluations
(5) Reasons for selection of a winning tender in the case of selection of a winning tender by comprehensive evaluation
(6) Reasons for deciding on the parties of a negotiated contract
- In the case of a low price negotiation (Article 167, Section 2, Clause 1, Number 1 of the Local Government Enforcement Act)
- In the case that competitive tendering could not be conducted due to an emergency (Article 167, Section 2, Clause 1, Number 3 of the Local Government Enforcement Act)
- In the case that competitive tendering was regarded as disadvantageous (Article 167, Section 2, Clause 1, Number 4 of the Local Government Enforcement Act)
- In the case that there is the prospect that a contract can be concluded with a considerably more advantageous price than the actual price (Article 167, Section 2, Clause 1, Number 5 of the Local Government Enforcement Act)
- In the case that there were no tenderers for competitive tendering or there was no winning tender for a second tendering (Article 167, Section 2, Clause 1, Number 6 of the Local Government Enforcement Act)
(7) Reasons for a contract change in the case of a contract change due to a change in the contract volume
