Early Career Researcher Public Procurement Conference -

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Presentation transcript:

Early Career Researcher Public Procurement Conference - Competing Anti-Corruption Strategies: Organizational and Contractual Models for ensuring Integrity in Public Contracts. Dr. Franco Peirone Early Career Researcher Public Procurement Conference - London, March 4th, 2016

Corruption in Public Contracts Winning Bidder Execution ! Performance requested Performance offered Performance delivered AWARD Bidder B 100% 100% 60% Bidder C Procuring officer and bidder corrupt agreement: the winning bidder already knows that he will NOT be requested 100% of the performance.

The Principal – Agent Theory Criminal Law: Sanctions for Wrongdoings Procurement Law: Integrity Requirements BONDING PRINCIPAL AGENT [Citizens - Contracting Authority] [Contractor] MONITORING

The Concept of Compliance Wrongdoings will always occur in economic operators What matters is how handle with them (prevent, detect, respond). Need of integrity testified by adequate and ongoing compliance tools Government (PRINCIPAL) Contractors (AGENT) SHIFTING BONDING COSTS EXCLUSION FROM AWARD!

The U.S. Compliance Organizational Model. Compliance system within the USSG: Corporate liability could be reduced in criminal trial for having a compliance program (U.S. Sentencing Guidelines, Chapter 8) Compliance system within the FAR: Governmental contract require the undertaking to has implemented a compliance program (U.S. Federal Acquisition Regulations, Part. 9) Suspension and Debarment: ensuring that the government does not enter into contracts with contractors that lack effective internal controls. Compliance system is a mandatory element of the responsibility determination of the tenderer - Subjectivity of the process

The EU Compliance demi- Organizational Model Art. 57, EU Directive 24/2014 Requires exclusion economic operators for corruption on final conviction. Permits contracting authorities to not exclude economic operators if they have adopted compliance tools (self-cleaning) Not a full and mandatory organizational model for Government contractors but a limited ex-post remedy. ! Exclusion for questionable integrity (57.4) without criminal conviction

The Transparency International Compliance Contractual Model The Integrity Pact, adopted by Transparency International (TI), is a contractual compliance model requires to corporations involved in government contract to act with integrity, prevent and disclosure corruption. If they fail, the awarding authority is allowed to exclude bidders or terminate the government contract awarded.

Organizational vs. Contractual Compliance Models Compliance model favors more the Government’s aim to not prejudice the execution of the public contract. Integrity Pact allows instead to re-award the contract and let the honest economic operator to get the award. Boeing 2005 (U.S.) Expo 2015 (Italy)