With the updated non-collusion clauses, bidders found engaging in collusive activity after signing a tendering certificate may be liable for criminal offences, such as conspiracy to defraud.
Currently, only government projects and private tenders processed through the Urban Renewal Authority’s Smart Tender system are mandated to include these non-collusive clauses.
Competition Commission chairman Jat Sew-tong urged all private procurers and tendering bodies to adopt the revised standards to strengthen protection.
“The additional cost for that is relatively low, but the potential benefit is high because it gives protection to the procurer,” he said.
“It gives the indication, a representation to them, a promise in a way that the tenderer has not engaged in any bid-rigging activities in preparing the tender… You have the added security.”
The watchdog is also introducing a new requirement for bidders to sign a statutory declaration affirming that their bids were prepared independently and free of collusive practices.
Making a false declaration also carries criminal liability.
Commission Executive Lester Lee said junior employees being directed to sign statutory declarations may also see criminal consequences.
“In the template statutory declaration, the wording fundamentally requires the declarant to either confirm that he or she is the person primarily responsible for preparing the tender, or if that person is not the person responsible, that he or she has personally inquired with the person preparing the tender, that the tender is free from collusion, etc,” he explained.
“So really the fundamental step which anyone being asked on behalf of the company to execute a statutory declaration is to ask yourself, is what I’m declaring actually factually correct?”
“Because if you know that what you’re declaring is actually factually incorrect, sorry, then that in itself may lead to criminal consequences for that person.”
The commission had earlier mentioned plans to submit legislative proposals to criminalise severe anti-competitive acts to the Legislative Council as early as the first quarter of next year.
Jat hinted that the body is considering proposing maximum penalties of up to seven to 10 years’ imprisonment, alongside fines of up to HK$15 million for severe violations.
