Ministry of Internal Affairs Administration Notice Nr. 199

Ministry of LIT Regional Section Contracting Notice Nr. 45

December 13, 2001

 

Prefectures and Ordinance-Designated Cities

To the Heads of the Responsible Departments

 

Head of the Administration Section

Local Administration Bureau, Ministry of Internal Affairs

 

Head of the Regional Section

Secretariat of the Minister of Land, Infrastructure, Transport and Tourism

(Office of the Central Council for the Public Works Contracting System and Communication of its Utilization)

 

Concerning proper use of nomination suspension measures related to construction work contracts

 

Nomination suspension measures for construction work contracts are to be rigorously conducted from the standpoint of strict elimination of impropriety in tendering and contracting, and the "Guidelines for Measures for Proper Tendering and Contracting for Public Works (March 9, 2001 Cabinet Decision)," in compliance with the "Act for the Promotion of Proper Tendering and Contracting for Public Works (Law 127, 2000)," state that "the heads of all ministries and agencies (including the heads of regional governments) are to draft and publicly announce standards for nomination suspensions in order to eliminate arbitrariness in nomination suspensions and secure objective execution."

Utilization of nomination suspension measures in regard to contracting for public works administered by the contracting organizations of central ministries and agencies is defined by the "Model of the Central Council for Public Works Contracting Systems and Communication of its Utilization for Nomination Suspension Measures for Construction Work Contracting" (adopted on March 23, 1984, hereafter referred to as "Central Public Contracting Communication Nomination Suspension Model") and the "Arrangements on Application of the Model of the Central Council for Public Works Contracting Systems and Communication of its Utilization for Nomination Suspension Measures for Construction Work Contracting" (adopted on April 20, 1994, hereafter referred to as "Application Arrangements"), and all contracting organizations are to apply them accordingly.

We understand that nomination suspension measures are also applied in your prefectures and ordinance-designated cities based on nomination suspension standards drafted with reference to the Central Public Contracting Communication Nomination Suspension Model and Application Arrangements; however, with regard to the content of the model and the Application Arrangements, some of the nomination suspension measures appear to be undesirable.

Please find the Central Public Contracting Communication Nomination Suspension Model and the Application Arrangements attached to this document. We ask that you to consider the appropriate application of nomination suspension measures with reference to these documents.

We have also attached "Examples of Undesirable Nomination Suspension Measures With Regard to the Central Public Contracting Communication Nomination Suspension Model (Appendix)" and request that you give them sufficient attention.

We would also like you to quickly inform the municipalities under your jurisdiction of these matters.

 

 

(Appendix)

 

Examples of Undesirable Nomination Suspension Measures With Regard to the Central Public Contracting Communication Nomination Suspension Model

 

1. Examples opposing the idea of prohibition of double jeopardy (prohibition of double punishment)

 

(1) Renewal of a nomination suspension (in relation to Appendix 1-1, 2, 4, 5, and 7 of the Central Public Contracting Communication Nomination Suspension Model and 5-2 of the Application Arrangements) for a new case of arrest of the person in charge of a work site, prosecution, or administrative measures for a claim after nomination suspension measures have already been applied due to discovery of false documents through an investigation by the contracting organization, self caused careless construction work, contract violation, or self caused construction work accidents, regardless whether new wrongful intent was identified (in the case of identification of new wrongful intent, change the period in accordance with 3-5 of the Central Public Contracting Communication Nomination Suspension Model).

 

(2) In the case of a nomination suspension due to arrest or prosecution (in accordance with Appendix 2-1 to 2-4, 7, 8, and 10 of the Central Public Contracting Communication Nomination Suspension Model and 5-2-B, 5-3 and 6-7-A of the Application Arrangements), renewal of a nomination suspension after disposition by a court.

 

(3) In the case of violation of the Anti-Monopoly Law, regardless of application of a nomination suspension during compliance with an exclusion recommendation, renewal of a nomination suspension after adjudication (in accordance with Appendix 2-5 and 2-6 of the Central Public Contracting Communication Nomination Suspension Model and 6-3 and 6-4 of the Application Arrangements).

 

2. Examples in which the length of a nomination suspension is problematic

 

(1) In the case of arrest or prosecution as a requirement for nomination suspension, to apply a nomination suspension at the time of document inspection regardless of whether an arrest or prosecution is made (in accordance with Appendix 2-1 to 2-4, 7, 8, and 10 of the Central Public Contracting Communication Nomination Suspension Model and 5-2-B, 5-3 and 6-7-A of the Application Arrangements).

 

(2) As a general rule, in the case of required nomination suspensions due to normal construction work accidents (not caused by the contracting organization) when the person in charge of the work site is arrested or prosecuted due to suspect of violation of the Criminal Code or the Work Safety and Hygiene Act, applying a nomination suspension at one's own judgment regardless of whether the person in charge is arrested or prosecuted (in accordance with Appendix 1-6 and 1-8 of the Central Public Contracting Communication Nomination Suspension Model and 5-3 of the Application Arrangements).

 

(3) In the case of violation of the Anti-Monopoly Law, applying a nomination suspension at the time of an on-the-spot investigation or exclusion recommendation without waiting for the period for compliance with the exclusion recommendation (in accordance with Appendix 2-5 and 2-6 of the Central Public Contracting Communication Nomination Stop Model and 6-3 and 6-4 of the Application Arrangements).

 

(4) In the case of suspected violation of the Anti-Monopoly Law, applying a nomination suspension regardless of whether there has only been a warning issued by the Fair Trade Commission that there was a suspected violation of the law (in accordance with Appendix 2-5 and 2-6 of the Central Public Contracting Communication Nomination Suspension Model and 6-3 and 6-4 of the Application Arrangements).

 

(5) In the case that a nomination suspension is required due to arrest or prosecution of a representative executive, applying a nomination suspension based on judgment of only information from the media showing that impropriety is suspected, regardless of whether there has been an arrest or prosecution of the representative executive.

 

3. Other

 

(1) Applying a stricter short-term measure regardless of the fact that the requirements for a stricter short-term measure are not met (in accordance with 3-2 of the Central Public Contracting Communication Nomination Suspension Model and 2-3 and 3 of the Application Arrangements).

 

(2) Not removing a nomination suspension regardless of whether there is to be no prosecution (in accordance with 3-6 of the Central Public Contracting Communication Nomination Suspension Model).

 

(3) Avoiding nomination and causing loss for a business based only on suspecting that the nomination suspension requirements are met when this is not the case (in accordance with 1-1 of the Central Public Contracting Communication Nomination Suspension Model).