On November 3, 2023, the Supreme People's Procuratorate (hereinafter referred to as the Supreme People's Procuratorate) publicly released a typical case of procuratorial organs punishing the crime of collusion in bidding in accordance with the law. There are 5 typical cases in this batch, namely, 11 enterprises such as A Construction Group Co., Ltd. and 30 people such as Chen Mou colluded in bidding. Fu Moumou, Xu Moumou and other 7 people colluded in bidding. Chen Moumou, Li Moumou and other 15 people colluded in bidding to bribe non-state staff and infringe on citizens' personal information; J company, W company, Y company, Hong Moumou and other 5 people colluded in bidding cases; chen Moumou, Qiu Moumou and other 9 people colluded in the bidding case.

In my impression, this is the first time that the Supreme People's Procuratorate has issued a typical case of punishing the crime of collusion in bidding since the Criminal Law of 1997 stipulated the crime of collusion in bidding. The person in charge of the Fourth Procuratorate of the Supreme People's Procuratorate said that the reason why the typical cases of punishing the crime of collusion in bidding were announced at this time is mainly because in recent years, some criminals have been driven by commercial interests and violated regulations in many fields such as engineering construction and equipment procurement. "" Encircling bids "has led to prominent problems in the bidding process, and frequent illegal and criminal acts such as collusion in bidding, bribery, and bribery. Collusive bidding is a kind of malicious competition behavior, which hinders the function of bidding mechanism, causes hidden dangers to project quality and safety management, and seriously disturbs the order of socialist market economy. It should be highly valued and severely punished according to law. In the next step, procuratorial organs will crack down on crimes in the field of bidding in accordance with the law, actively extend procuratorial functions, promote the governance of litigation sources, guide enterprises to operate in compliance with laws and regulations, and escort the legalized business environment.

From the Supreme People's Procuratorate's announcement of typical cases of punishing collusion in bidding crimes, we can see some new trends in corporate compliance in the future.

One of the new trends of (I) enterprise compliance: punishing the crime of collusion bidding is one of the key work directions of the procuratorate to extend the procuratorial function and purify the business environment. In the future, the intensity of punishing the crime of collusion bidding may be more and more strong.

From the case published by the Supreme People's Procuratorate, "A Construction Group Co., Ltd. and other 11 enterprises, Chen Mou and other 30 people colluded in bidding case", it can be seen that only one project, involving only two bid winning sections, involved 11 enterprises and 30 suspects. Although 24 people did not prosecute, 6 people were held criminally responsible.

From the case 3 published by the Supreme People's Procuratorate, "15 people such as Chen and Li colluded in bidding, bribing non-state staff and infringing on citizens' personal information", it can be seen that when the procuratorate cracked down on cases of collusive bidding, in addition to those who directly planned collusive bidding with the intention of contracting projects, intermediaries involved in the introduction of bidding enterprises (I. e. "scalpers"), experts involved in collusive bidding scoring, hackers selling expert information, etc., are all included in the criminal crackdown, and all links in the upstream and downstream of the industrial chain of collusive bidding, as well as all kinds of participants, are all covered.

It can be seen from the case 5 "collusion bidding case of Chen Moumou, Qiu Moumou and other 9 people" published by the Supreme People's Procuratorate that when cracking down on collusion bidding cases, in addition to cracking down on personnel directly involved in collusion bidding, the evil forces that obstruct others from participating in normal bidding, as well as government workers who have long provided convenient conditions for collusion bidding, will all be targeted, and the grass will be removed, prevent the spring breeze from blowing again.

The second of the new trends in the compliance of (II) enterprises: there are various criminal patterns of collusion in bidding, including collusion between bidders and tenderers, collusion between bidders and bidders, and collusion between bidders and bid appraisers.

In case 5, "collusion in bidding by Chen Moumou, Qiu Moumou and other 9 people", the case-handling unit focused on the collusion between the bidders and the tenderers who leaked convenient information such as the project to be tendered and the reserve price for the collusion bidders.

In the above-mentioned cases 1 to 5, one of the commonalities is that in addition to those who directly organize and implement collusion bidding, the case-handling unit will also target other personnel (also bidders) involved in collusion bidding.

In case 3, "15 people, including Chen and Li, colluded in bidding to bribe non-state staff and infringe upon citizens' personal information", the procuratorate, in addition to criminally cracking down on colluding bidders, will also cooperate with bid evaluation experts who scored high marks for colluding in bidding.

The third new trend of (III) enterprise compliance: when handling cases involving collusion in bidding, the procuratorate combines leniency and strictness, combining criminal crackdown with publicity and education, criminal crackdown with reform. The strict is strict, when wide is wide.

In case one, the case-handling unit targeted the personnel involved in collusive bidding, even the project manager and documenter of the bid-accompanying unit. However, in the stage of examination and prosecution, in line with the principle of treating the sick and saving the people, the procuratorate finally did not prosecute 24 people with relatively minor participation, and only prosecuted 6 people with serious and bad nature.

In case two, although the public security organs transferred the seven people involved in the case to the procuratorate for examination and prosecution as criminal suspects, the procuratorate cooperated with the launch of the enterprise compliance rectification system in order to demonstrate the criminal justice policy of combining justice with leniency. Finally, after the enterprise compliance rectification passed smoothly, all seven people involved in the case were not prosecuted.

In case four, although the case handling unit listed the personnel involved in the collusion bidding as the suspect, considering that the relevant construction projects were completed on schedule and some construction projects were awarded the "national quality engineering award" and "Anhui construction safety production standardization site" respectively, no serious losses were caused and the social harm was relatively small. Finally, after the enterprise compliance rectification, the procuratorate decided not to prosecute all the relevant personnel.

What enlightenment can the above new trends in corporate compliance bring to the majority of enterprises and individuals who are participating in or may participate in bidding projects?

(I) for the tenderer, if you want to prevent the criminal legal risk of collusive bidding, it is recommended to pay attention:

1. If conditions permit, for the project to be tendered, the implementation of "separation of management and operation" can be considered, that is, the bidding management department is responsible for the establishment of rules and regulations and the examination and approval in the early stage of bidding, and the bidding organization department is responsible for the organization and implementation of specific bidding activities. The two departments are separated from each other while checking and balancing each other, so as to minimize the collusion and collusion between bidders and tenderers and avoid unfair bidding behavior.

2. Strictly implement the legality and openness of the bidding procedures in all aspects, and actively announce the supervision channels. In the bidding activities, attention should be paid to carrying out the bidding activities in strict accordance with the bidding process and procedural requirements drawn up in advance, and at the same time, attention should be paid to leaving marks and filing the matters and problems involved in each link for follow-up investigation. In the implementation of bidding activities, in addition to relying on the relevant staff's own sense of responsibility and responsibility, the joint supervision of the party committee and discipline inspection commission of the unit can be introduced at the same time, and the supervision information can be released to the public to mobilize the whole society (especially the participants in bidding activities) to jointly supervise, so as to form an atmosphere of national supervision, so that the internal personnel of the tenderee dare not disclose the bidding documents without authorization.

(II) for bidders, if they want to prevent the criminal legal risk of collusive bidding, they should do:

1. You can know the general situation of the project to be invited for bidding in advance, but don't inquire about the reserve price of bidding in violation of regulations, and don't contact the evaluators in private; If you only know the general situation of the project to be invited for bidding properly and win the bid by virtue of objective advantages, the risk of criminal punishment is relatively small. However, if you rashly inquire about the reserve price of the bidding or even contact with the evaluators in private, once you later, it, it will be found out, it, it will easily be found out.

2. You can communicate with your peers in advance whether to participate in the bidding, but do not reach an alliance with your peers (those who participate in the bidding together) on the core conditions such as the bid price or even negotiate in advance the remuneration for participating in the bidding or the profit distribution plan after winning the bid. Collusive bidding may be constituted if an alliance is reached in advance on core conditions such as the bid price, or if a profit distribution plan after winning the bid is negotiated in advance.

(III) for the evaluation of the bid, if you want to prevent the criminal legal risk of collusive bidding, you can consider:

1. Standardize the evaluation method. The evaluation factors in the bidding documents shall be based on clear criteria, quantified criteria and minimized the discretionary space of bid evaluation experts. Bid evaluation experts shall be randomly selected from the expert database by non-human means such as computers, and the random selection process must be supervised by a third party. For major and extra-large projects, consideration may be given to appropriately increasing the number of bid evaluation experts, increasing the proportion of experts from different places and reducing interference in the same city; strict discipline and procedures for bid evaluation. The bid evaluation room shall be equipped with monitoring. The bid evaluation site shall collect the mobile phones of judges and staff, block information, establish records of personnel entering and leaving the bid evaluation site, record time and reasons, and ensure confidentiality of information on the bid evaluation site.

2. Strengthen the management of confidential links, and sign a confidentiality undertaking for participants involved in the preparation, packaging and sale of bidding documents; For experts participating in project evaluation, sign a confidentiality agreement in advance; Minimize the number of personnel who prepare and approve the base price, and participants who know the base price shall sign a confidentiality commitment. Timely handle the objections and complaints announced by the bid, further unblock the channels for complaints and reports, increase supervision, and seriously investigate and deal with violations of laws and disciplines that may affect fair competition.

If you are suspected of committing a crime and encounter a criminal investigation of the crime of collusion in bidding, how can you save yourself? Combined with the author's experience in dealing with similar cases, I would like to make three suggestions for reference:

1. To be honest, don't try to cover up or destroy the evidence, otherwise once it is exposed, it may face greater trouble, and it is easy to affect the determination of the surrender plot or even the confession plot.

2. Actively strive to start the procuratorate's criminal compliance non-prosecution. Involved in the crime of collusive bidding, mostly on behalf of enterprises to conduct collusive bidding, and enterprises as the main body of legitimate business, if can strive to start the enterprise criminal compliance non-prosecution procedures, the final fight for exemption from prosecution or the probability of seeking probation will be greatly increased.

3. Take advantage of the opportunity of criminal enterprise compliance, re-sort out other loopholes in the company's internal risk prevention system, and strive to use an enterprise compliance physical examination to identify all potential risks of the enterprise as far as possible and eliminate them together.

- Mao Peng Senior Partner-

[Lawyer Profile]

Lawyer Mao Peng has entered the law firm since March 2005 and has been engaged in litigation practice. He has more than ten years of practical experience. He has consulted thousands of criminal report materials and personally participated in handling hundreds of criminal charges and criminal cases. Defense and criminal risk prevention and other cases have been widely praised by the parties.

 

Lawyer Mao Peng is good at handling cases involving the combination of criminal and civil punishment and the intersection of criminal and civil punishment. He has served as a criminal legal consultant for many enterprises. He has successively assisted dozens of enterprises and their actual controllers and main management personnel to cooperate with the public security and judicial organs, the supervision committee, the Securities Regulatory Commission and other departments in investigating, assisting many enterprises to complete the construction of internal compliance system and criminal compliance non-prosecution matters, and has rich practical experience in handling.

 

Lawyer Mao Peng, while engaged in legal practice, has also been interviewed by many domestic TV stations, newspapers and magazines on hot news events, and has obtained good social feedback and influence.

 

[Practice areas and business expertise]

Good at criminal legal services related to economic crimes, including but not limited to assisting clients in filing criminal charges, assisting clients in cooperating with the investigation and inquiry of the Public Security Supervision Commission, and providing criminal defense services for defendants in criminal cases;

Good at handling shareholder disputes or corporate control disputes, assisting customers to formulate overall disposal plans and helping to promote the implementation of relevant plans and steps according to plan and rhythm.

 

[Contact]

E-mail:

maopeng@shengdian.com.cn

Telephone:

0755—83789980