9
Notice of Uncontested Sanctions Proceedings April29, 2014 Sanctions Case No. 302 IDA Credit Number 4378-BO (Bolivia Second Participatory Rural Investment Project) Respondents: Comsatel Artifex Telecomunicaciones S.R.L. Mr. Samuel Cardenas Colque Mr. Alfredo Echalar Franco 1. On January 24, 2014, the World Bank' s Chief Suspension and Debarment Officer (the "SDO") issued a Notice of Sanctions Proceedings (the "Notice") to Comsatel, Artifex Telecomunicaciones S.R.L. ("Artifex"), Mr. Samuel Cardenas Colque ("Mr. Cardenas") and Mr. Alfredo Echalar Franco ("Mr. Echalar") (the "Respondents") pursuant to Section 4.0l(a) of the World Bank Sanctions Procedures, as adopted by the World Bank as of Aprill5 , 2012 (the "Sanctions Procedures"). 2. The Statement of Accusations and Evidence ("SAE") prepared by the Bank's Integrity Vice Presidency ("INT") and appended to the Notice contained INT's accusation that the Respondents engaged in sanctionable practices in connection with the above-named project (the "Project"). The SAE also contained the evidence gathered by INT in support of this accusation. 3. The specific accusation made by INT in the SAE was that the Respondents engaged in collusive practices by taking part in an arrangement designed to establish prices at artificial, non-competitive levels and to deprive the borrower of the benefits of free and open competition. This arrangement involved fi xing the prices and coordinating the preparation of the firms' bids for three World Bank- financed supply contracts. 4. Based on a review ofiNT's SAE conducted in accordance with Section 4.0l(a) of the Sanctions Procedures, and pursuant to Section 4.0l(c), Section 9.01 and Section 9.04 of the Sanctions Procedures, with due consideration of the factors set forth in Section 9.02 ofthe Sanctions Procedures and in the World Bank Sanctioning Guidelines, the SDO recommended in the Notice that the Respondents, together with certain Affiliates (as defined in the Sanctions Procedures) where so specified, be sanctioned as follows:

Notice of Uncontested Sanctions Proceedings Sanctions No ......Debarment Decisions (the "MDB Cross-Debarment Agreement") so that ... general manager met with INT and admitted that

  • Upload
    others

  • View
    5

  • Download
    0

Embed Size (px)

Citation preview

  • Notice of Uncontested Sanctions Proceedings

    April29, 2014

    Sanctions Case No. 302 IDA Credit Number 4378-BO

    (Bolivia Second Participatory Rural Investment Project)

    Respondents: Comsatel

    Artifex Telecomunicaciones S.R.L. Mr. Samuel Cardenas Colque Mr. Alfredo Echalar Franco

    1. On January 24, 2014, the World Bank' s Chief Suspension and Debarment Officer (the "SDO") issued a Notice of Sanctions Proceedings (the "Notice") to Comsatel, Artifex Telecomunicaciones S.R.L. ("Artifex"), Mr. Samuel Cardenas Colque ("Mr. Cardenas") and Mr. Alfredo Echalar Franco ("Mr. Echalar") (the "Respondents") pursuant to Section 4.0l(a) of the World Bank Sanctions Procedures, as adopted by the World Bank as of Aprill5, 2012 (the "Sanctions Procedures").

    2. The Statement of Accusations and Evidence ("SAE") prepared by the Bank's Integrity Vice Presidency ("INT") and appended to the Notice contained INT's accusation that the Respondents engaged in sanctionable practices in connection with the above-named project (the "Project"). The SAE also contained the evidence gathered by INT in support of this accusation.

    3. The specific accusation made by INT in the SAE was that the Respondents engaged in collusive practices by taking part in an arrangement designed to establish prices at artificial, non-competitive levels and to deprive the borrower of the benefits of free and open competition. This arrangement involved fixing the prices and coordinating the preparation of the firms' bids for three World Bank-financed supply contracts.

    4. Based on a review ofiNT's SAE conducted in accordance with Section 4.0l(a) of the Sanctions Procedures, and pursuant to Section 4.0l(c), Section 9.01 and Section 9.04 of the Sanctions Procedures, with due consideration of the factors set forth in Section 9.02 ofthe Sanctions Procedures and in the World Bank Sanctioning Guidelines, the SDO recommended in the Notice that the Respondents, together with certain Affiliates (as defined in the Sanctions Procedures) where so specified, be sanctioned as follows:

  • Respondent 1 Comsatel

    It is recommended that Comsatel (together with any entity that is an Affiliate directly or indirectly controlled by Comsatel) be declared ineligible (i) to be awarded or otherwise benefit from a Bank-financed contract, financially or in any other manner, 1 (ii) to be a nominated2 sub-contractor, consultant, manufacturer or supplier, or service provider of an otherwise eligible firm being awarded a Bank-financed contract, and (iii) to receive the proceeds of any loan made by the Bank or otherwise to participate further in the preparation or implementation of any project or program financed by the Bank and governed by the Bank's Procurement Guidelines, Consultant Guidelines or Anti-Corruption Guidelines,· provided, however, that after a minimum period of ineligibility of seven (7) years, Comsatel may be released from ineligibility only ifComsatel has, in accordance with Section 9. 03 of the Sanctions Procedures, demonstrated to the Bank Group's Integrity Compliance Officer that Comsatel has complied with the following condilions:

    (a) Comsatel has taken appropriate remedial measures to address the sanctionable practices for which Comsatel has been sanctioned,· and

    (b) Comsatel has adopted and implemented an effective integrity compliance program in a manner satisfactory to the Bank.

    In determining this recommended sanction, the SDO took into account as aggravating/actors (i) the involvement ofComsatel 's manager in the misconduct and (ii) the fact that Comsatel 's manager played a central role in the organization of the alleged collusive scheme. The SDO also took into account as aggravating factors (iii) the fact that Comsatel submitted bids in multiple selection processes affected by the Respondents ' collusive practices and (iv) the fact that Comsatel 's manager inte!fered with the investigative process by making false statements to investigators in order to materially impede the Bank's investigation.

    For the avoidance of doubt, the declaration of ineligibility to be awarded a contract will include, without limitation, {i) applyingfor pre-qualification, expressing interest in a consultancy, and bidding, either directly or as a nominated sub-contractor, nominated consultant, nominated manufacturer or supplier, or nominated service provider, in respect of such contract, and (ii) entering into an addendum or amendment introducing a material modification to any existing contract. }

    A nominated sub-contractor, nominated consultant, nominated manufacturer or supplier, or nominated service provider (different names are used depending on the particular bidding document) is one which has been: (i) included by the bidder in its pre-qualification application or bid because it brings specific and critical experience and know-how that allow the bidder to meet the qualification requirements for the particular bid; or {ii) appointed by the borrower.

    2

  • The foregoing declaration of ineligibility will extend across the operations of the World Bank Grolf, including IFC, MIGA and the guarantee operations of the Bank. The Bank will also provide notice of this declaration of ineligibility to the other multilateral development banks ("MDBs ") that are party to the Agreement for Mutual Enforcement of Debarment Decisions (the "MDB Cross-Debarment Agreement") so that they may determine whether to enforce the declarations of ineligibility with respect to their own operations in accordance with the MDB Cross-Debarment Agreement and their own policies and procedures. 4

    Respondent 2 Artifex Telecomunicaciones S. R.L. ("Artifex ")

    It is recommended that Artifex (together with any entity that is an Affiliate directly or indirectly controlled by Artifex) be declared ineligible (i) to be awarded or otherwise benefit from a Bank-financed contract, financially or in any other manner, 5 (ii) to be a nominatecf sub-contractor, consultant, manufacturer or supplier, or service provider of an otherwise eligible firm being awarded a Bank-financed contract, and (iii) to receive the proceeds of any loan made by the Bank or otherwise to participate

    {World Bank Sanctions Procedures} , at 23-24 (Section 9.0/(c)). For the avoidance of doubt, the declaration of ineligibility also extends to activities financed through trustfimds administered by the Bank to the extent governed by the Bank 's Procurement Guidelines, Consultant Guidelines or Anti-Corruption Guidelines. Jd. at 2 (Section 1. 0 I (c)(i)).

    At present, the MDBs that are party to the MDB Cross-Debarment Agreement are the Bank Group, the African Development Bank Group, the Asian Development Bank, the European Bank for Reconstruction and Development and the inter-American Development Bank Group. The MDB Cross-Debarment Agreement provides that, subject to the prerequisite conditions set forth in the MDB Cross-Debarment Agreement, unless a p articipating MDB (i) believes that any of the prerequisite conditions set forth in the MDB Cross-Debarment Agreement have not been met or (ii) decides to exercise its rights under the "opt out " clause set forth in the MDB Cross-Debarment Agreement, each participating MDB will promptly enforce the debarment decisions of the other participating MDBs. More information about the MDB Cross-Debarment Agreement is available on the Bank 's external website (http://go.worldbank. org/B699B73QOO). 5 For the avoidance of doubt, the declaration o[fneligibility to be awarded a contract will include, without limitation, (i) apply ing f or pre-qualification, expressing interest in a consultancy, and bidding, either directly or as a nominated sub-contractor, nominated consultant, nominated manufacturer or supplier, or nominated service provider, in respect of such contract, and (ii) entering into an addendum or amendment introducing a material modification to any existing contract. 6 A nominated sub-contractor, nominated consultant, nominated manuf acturer or supplier, or nominated service provider (different names are used depending on the particular bidding document) is one which has been: (i) included by the bidder in its pre-qualification application or bid because it brings specific and critical exp erience and know-how that allow the bidder to meet the qualification requirements for the particular bid; or (ii) appointed by the borrower.

    3

  • further in the preparation or implementation of any project or program financed by the Bank and governed by the Bank's Procurement Guidelines, Consultant Guidelines or Anti-Corruption Guidelines; provided, however, that after a minimum period of ineligibility of two (2) years, Artifex may be released from ineligibility only if Artifex has, in accordance with Section 9. 03 of the Sanctions Procedures, demonstrated to the Bank Group's Integrity Compliance Officer that Artifex has complied with the following conditions:

    (a) Artifex has taken appropriate remedial measures to address the sanctionable practices for which Artifex has been sanctioned; and

    (b) Artifex has adopted and implemented an effective integrity compliance program in a manner satisfactory to the Bank.

    In determining this recommended sanction, the SDO took into account as aggravating factors (i) the involvement of Artifex 's general manager in the misconduct and (ii) the fact that Artifex submitted proposals in multiple selection processes affected by the Respondents' collusive practices. The SDO took into account as a mitigating factor the fact that Artifex was a minor participant in the misconduct, and a designated loser in each of the selection processes. The SDO also took into account as a mitigating factor INT's representations as to the extent of Artifex 's cooperation during the course of the investigation, noting in particular that Artifex 's general manager met with INT and admitted that Artifex had engaged in the alleged sanctionable practice.

    The foregoing declaration of ineligibility will extend across the operations of the World Bank Grolff, including IFC, MIGA and the guarantee operations of the Bank. The Bank will also provide notice of this declaration of ineligibility to the other multilateral development banks ("MDBs ") that are party to the Agreement for Mutual Enforcement of Debarment Decisions (the "MDB Cross-Debarment Agreement'') so that they may determine whether to enforce the declarations of ineligibility with respect to their own operations in accordance with the MDB Cross-Debarment Agreement and their own policies and procedures. 8

    [World Bank Sanctions Procedures}, at 23-24 (Section 9.0/(c)). For the avoidance of doubt, the declaration of ineligibility also extends to activities financed through trust funds administered by the Bank to the extent governed by the Bank's Procurement Guidelines, Consultant Guidelines or Anti-Corruption Guidelines. ld at 2 (Section 1.0/(c)(i)). 8 At present, the MDBs that are party to the MDB Cross-Debarment Agreement are the Bank Group, the Afhcan Development Bank Group, the Asian Development Bank, the European Bank for Reconstruction and Development and the Inter-American Development Bank Group. The MDB Cross-Debarment Agreement provides that, subject to the prerequisite conditions set forth in the MDB Cross-Debarment Agreement, unless a participating MDB (i) believes that any of the prerequisite conditions set forth in the

    4

  • Respondent 3 Mr. Samuel Cardenas Co/que ("Mr. Cardenas ")

    It is recommended !hat Mr. Cardenas (together with any entity that is an Affiliate directly or indirectly controlled by Mr. Cardenas) be declared ineligible (i) to be awarded or otherwise benefit from a Bank-financed contract, financially or in any other manner, 9 (ii) to be a nominated10 sub-contractor, consultant, manufacturer or supplier, or service provider of an otherwise eligible firm being awarded a Bank-financed contract, and (iii) to receive the proceeds of any loan made by the Bank or otherwise to participate further in the preparation or implemenlation of any project or program financed by the Bank and governed by the Bank's Procurement Guidelines, Consultant Guidelines or Anti-Corruption Guidelines; provided, however, that after a minimum period of ineligibility of seven (7) years, Mr. Cardenas may be released from ineligibility only if Mr. Cardenas has, in accordance wilh Section 9. 03 of the Sanctions Procedures, demonstrated to the Bank Group 's Integrity Compliance Officer that Mr. Cardenas has complied with the following conditions:

    (a) Mr. Cardenas has taken appropriate remedial measures to address the sanctionable practices for which Mr. Cardenas has been sanctioned;

    (b) Mr. Cardenas has compleled training and/or other educational programs that demons/rate a continuing commitment to personal integrity and business ethics,· and

    (c) Any entity that is an Affiliate directly or indirectly controlled by Mr. Cardenas has adopted and implemented an effective integrity compliance program in a manner satisfactory to the Bank.

    MDB Cross-Debarment Agreement have not been met or (ii) decides to exercise its rights under the "opt out " clause set forth in the MDB Cross-Debarment Agreement, each participating MDB will promptly enforce the debarment decisions of the other participating MDBs. More information about the MDB Cross-Debarment Agreement is available on the Bank's external website (http://go. worldbank.org/8699873QOO). 9 For the avoidance of doubt, the declaration of inelig ibility to be awarded a contract will include, without/imitation, (i) apply ing f or pre-qualification, expressing interest in a consultancy, and bidding, either directly or as a nominated sub-contractor, nominated consultant, nominated manufacturer or supplier, or nominated service provider, in respect of such contract, and (ii} entering into an addendum or amendment introducing a material modification to any existing contract. 10 A nominated sub-contractor, nominated consultant, nominated manufacturer or supplier, or nominated service provider (different names are used depending on the particular bidding document) is one which has been: (i) included by the bidder in its pre-qualification application or bid because ft brings sp ecific and critical experience and know-how that allow the bidder to meet the qualification requirements f or the particular bid,· or (ii} appointed by the borrower.

    5

  • In determining this recommended sanction, the SDO took into account as aggravating factors (i) the fact that Mr. Cardenas was the manager of one of the corporate Respondents and (ii) the fact that Mr. Cardenas played a central role in the organization of the alleged collusive scheme. The SDO also took into account as aggravating factors (iii) the fact that Mr. Cardenas submilted bids in multiple selection processes affected by the Respondents' collusive practices and (iv) the fact that Mr. Cardenas interfered with the investigative process by making false statements to investigators in order to materially impede the Bank's investigation.

    The foregoing declaration of ineligibility will extend across the operations of the World Bank Grou;;, including IFC, MIGA and the guarantee operations of the Bank. 1 The Bank will also provide notice of this declaration of ineligibility to the other multilateral development banks ( "MDBs ") that are party to the Agreement for Mutual Enforcement of Debarment Decisions (the "MDB Cross-Debarment Agreement'') so that they may determine whether to enforce the declarations of ineligibility with respect to their own operations in accordance with the MDB Cross-Debarment Agreement and their own policies and procedures. 12

    Respondent 4 Mr. Alfredo Echalar Franco ("Mr. Echalar ")

    It is recommended that Mr. Echalar (together with any entity that is an Affiliate directly or indirectly controlled by Mr. Echala1) be declared ineligible (i) to be awarded or otherwise benefit from a Bank-financed

    fi ' ll . h 13 r;l b . d/4 contract, nancra y or zn any ot er manner, 1 u1 to e a nom mate

    II [World Bank Sanctions Procedures}, at 23-24 (Section 9.01(c)). For the avoidance of doubt, the declaration of ineligibility also extends to activities financed through trust f unds administered by the Bank to the extent governed by the Bank 's Procurement Guidelines, Consultant Guidelines or Anti-Corruption Guidelines. fd at 2 (Section I.OI(c)(i)). 12 At present, the MDBs that are party to the MDB Cross-Debarment Agreement are the Bank Group, the African Development Bank Group, the Asian Development Bank, the European Bank for Reconstruction and Development and the Inter-American Development Bank Group. The MDB Cross-Debarment Agreement provides that, subject to the prerequisite conditions set f orth in the MDB Cross-Debarment Agreement, unless a participating MDB (i) believes that any oft he prerequisite conditions set f orth in the MDB Cross-Debarment Agreement have not been met or (ii) decides to exercise its rights under the "opt out " clause set forth in the MDB Cross-Debarment Agreement, each participating MDB will promptly enforce the debarment decisions of the other participating MOBs. More information about the MDB Cross-Debarment Agreement is available on the Bank's external website (http://go. worldbank. org/B699B73QOO). 13 For the avoidance of doubt, the declaration of inelig ibility to be awarded a contract will include, without limitation, (i) apply ing f or pre-qualification, expressing interest in a consultancy, and bidding, either directly or as a nominated sub-contractor, nominated consultant, nominated manufacturer or supplier, or nominated service

    6

  • sub-contractor, consultant, manufacturer or supplier, or service provider of an otherwise eligible firm being awarded a Bank-financed contract, and (iii) to receive the proceeds of any loan made by the Bank or otherwise to participate further in the preparation or implementation of a11y project or program financed by the Bank and governed by the Bank's Procurement Guidelines, Consultant Guidelines or Anti-Corruption Guidelines; provided. however, that after a minimum period of ineligibility of two (2) years, Mr. Echalar may be released from ineligibility only if Mr. Echalar has, in accordance with Section 9. 03 of the Sanctions Procedures, demonstrated to the Bank Group's Integrity Compliance Officer that Mr. Echalar has complied with the following conditions:

    (a) Mr. Echalar has taken appropriate remedial measures to address the sanctionable practices for which Mr. Echalar has been sanctioned,·

    (b) Mr. Echalar has completed training and/or other educational programs that demonstrate a continuing commitment to personal integrity and business ethics; and

    (c) Any entity that is an Affiliate directly or indirectly controlled by Mr. Echalar has adopted and implemented an effective integrity compliance program in a manner satisfactory to the Bank.

    In determining this recommended sanction, the SDO took into account as aggravating factors (i) the fact that Mr. Echalar was the general manager of one of the cmporate Respondents and (ii) the fact that Mr. Echalar allowed the submission of proposals in the name of his firm in multiple selection processes affected by the Respondents ' collusive practices. The SDO took into account as a mitigating factor the fact that Mr. Echalar was a minor participant in the misconduct, and that his firm was a designated loser in each of the selection processes. The SDO also took into account as a mitigating factor INT's representations as to the extent of Mr. Echalar 's cooperation during the course of the investigation, noting in particular that Mr. Echalar met with !NT and admitted that he had engaged in the alleged sanctionable practice.

    The foregoing declaration of ineligibility will extend across the operations of the World Bank Group, including IFC, MIGA and the guarantee

    provider, in respect of such contract, and (ii) entering into an addendum or amendment introducing a material modification to any existing contract.

    A nominated sub-contractor, nominated consultant, nominated manufacturer or supplier, or nominated service provider (different names are used depending on the p articular bidding document) is one which has been: (i) included by the bidder in its pre-qualification application or bid because it brings specific and critical experience and know-how that allow the bidder to meet the qualification requirements f or the particular bid; or (ii) appointed by the borrower.

    7

  • operations of the Bank. 15 The Bank will also provide notice of this declaration of ineligibility to the other multilateral development banks ("MDBs ") that are party to the Agreement for Mutual Enforcement of Debarment Decisions (the "MDB Cross-Debarment Agreement") so that they may determine whether to enforce the declarations of ineligibility with respect to their own operations in accordance with the MDB Cross-Debarment Agreement and their own policies and procedures. 16

    5. In accordance with Section 4.02(b) ofthe Sanctions Procedures, Comsatel and Mr. Cardenas submitted a written Explanation (as defined in the Sanctions Procedures) on February 28, 2014. After consideration of the arguments and evidence presented by INT in the SAE appended to the Notice and the arguments and evidence presented in the Explanation, the SDO determined that there was no basis for (i) a withdrawal of the Notice pursuant to Section 4.03(a)(i) ofthe Sanctions Procedures; or (ii) a revision of the recommended sanction pursuant to Section 4.03(a)(ii) of the Sanctions Procedures.

    6. Neither Artifex nor Mr. Echalar submitted a written Explanation (as defined in the Sanctions Procedures) in accordance with Section 4.02(b) of the Sanctions Procedures.

    7. Section 4.04 of the Sanctions Procedures provides that if a respondent does not contest the accusations or the sanction recommended by the SDO in a Notice of Sanctions Proceedings by submitting a Response (as defined in the Sanctions Procedures) to the World Bank Group Sanctions Board (the "Sanctions Board") within ninety (90) days after delivery of such Notice of Sanctions Proceedings, the sanction(s) recommended by the SDO shall enter immediately into force.

    8. No Response having been submitted to the Sanctions Board by any of the Respondents within the specified period, INT' s accusation in the SAE and the sanctions recommended by the SDO in the Notice are deemed uncontested for

    15 [World Bank Sanctions Procedures} , at 23-24 (Section 9.0/(c)). For the avoidance of doubt, the declaration of ineligibility also extends to activities financed through trust funds administered by the Bank to the extent governed by the Bank 's Procurement Guidelines, Consultant Guidelines or Anti-Corruption Guidelines. /d. at 2 (Section / .0/(c)(i)).

    16 At present, the MDBs that are party to the MDB Cross-Debarment Agreement are the Bank Group, the African Development Bank Group, the Asian Development Bank, the European Bank f or Reconstruction and Development and the Inter-American Development Bank Group. The MDB Cross-Debarment Agreement provides that, subject to the prerequisite conditions set f orth in the MDB Cross-Debarment Agreement, unless a participating MDB (i) believes that any of the prerequisite conditions set forth in the MDB Cross-Debarment Agreement have not been met or (ii) decides to exercise its rights under the "opt out " clause set f orth in the MDB Cross-Debarment Agreement, each participating MDB will promptly enforce the debarment decisions of the other participating MDBs. More information about the MDB Cross-Debarment Agreement is available on the Bank's external website (http://go. worldbank. org/B699B73QOO).

    8

  • purposes of Section 4.04 of the Sanctions Procedures, and the recommended sanctions set forth in paragraph 4 above have entered into force as of the date hereof.

    Pascale Helene Dubois Chief Suspension and Debarment Officer Office of Suspension and Debarment (OSD) The World Bank

    9