Análisis de los Resultados de la Encuesta para los Clientes

Despite existence of laws and regulations forbidding corruption, it still takes place on a broad scale. As it was mentioned before, in order to fight corruption there is an increasing tendency of developing and implementing debarment policies both at national and international level. One of the oldest debarment systems is the one in the US, which can apply based on the anti-trust violations, tax evasion and false statements as well as bribery in procurement-related activities. Currently, many other countries have or plan to introduce it.126 At the international level the oldest debarment policy is that of the World Bank, which was made publicly available in 1998. By now, all other MDBs also have debarment systems in place.

1. Historical background of debarment

Blacklists have existed for centuries to identify undesirable individuals or organizations for the purpose of discrimination. History of blacklisting traces back to the Middle Ages, where there were the lists of the towns and population affected by the plague, later the lists of evangelic villages and persons in the period of recatolization or lists of the persons allegedly possessed by the Devil and suspected of sorcery.127

Majority of blacklists nowadays are legal. For example, it can be a list of persons involved in the organized crime, a list of unreliable airlines or a list of unreliable clients who have not paid their bills and are denied credit privileges.

126 _{In 2005 these countries included: Bangladesh, Brazil, China, the Czech Republic, France, Germany,} India, Kenya, Nepal, Pakistan, the Philippines, Romania, Senegal, Singapore, South Africa, South Korea, Sweden, Tanzania, Turkey, Uganda, the United States and Zimbabwe. See Olaya, J. (2005):

Blacklisting Corrupt Companies, in: Transparency International, Global Corruption Report, 60, http://www.transparency.org/publications/gcr/download_gcr/download_gcr_2005#download (accessed 30 January 2009).

127 _{Vymětal, P. (2007): Blacklisting and Public Procurement, in: Transparency International - Czech} Republic, Blacklisting in the Public Procurement System, 25,

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But since the purpose of blacklists is to exclude and discriminate, sometimes they can also result in unfair and illegal discrimination. The examples can include lists of dissenters in non-democratic regimes, list of individuals who will not be allowed entry into the country or who will be denied access to employment.128

There can also be some variations of blacklisting. One of them is blackballing, the manner, in which some private (“gentlemen’s“) clubs allow any existing member to reject the application for the membership of the new candidate in such a manner that he throws at voting the black ball into the ballot box among the other (white) balls.129 Another variation is blocklisting used in the past in the United States to exclude, reject and discriminate Afro-American population in different areas of life.130

2. Blacklisting vs. white listing

Blacklists often apply, whether formally or informally, in combination with so-called white lists. As it appears from the name, white lists are the opposite of the blacklists, comprising the reliable and trustworthy entities, which fulfill certain preconditions for qualification, do not break the valid rules and act ethically. In principle, white listing is connected with the certification, the main purpose of which is to grant the mark of quality and trustworthiness to those products and entities, which fulfill the pre- established criteria. Examples of certification include declaration on conformity with EU standards, homologation certificates, hygienic and ISO standards etc.

In the field of public procurement white listing can be considered as an incentive instrument whereby companies eligible to participate in tendering are pre-selected because they have demonstrated the ability to perform in a responsible manner and the willingness to abide by applicable rules and regulations. Their reliability is judged upon the pre-established criteria. For example, in the EU-wide study on procurement and organized crime, the possibility of creation of an EU-wide White List was

128 _{For example, during the cold war motion picture companies, radio and television broadcasters, and} other firms in the entertainment industry in the US developed blacklists of individuals accused of being pro-Communists. Those companies then denied employment to those whose names were on those lists.

See Vaughn, R. (1972): Only Lies: A Study of Show Business Blacklisting.

129 _{Vymětal, supra note 127, at 29.} 130 _Ibid.

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suggested for discussion. To be put on the White List, the tenderer should demonstrate that within the EU territory he/she:

• has no past involvements in financial crimes or irregularities of any kind; • has never been in breach of contract through the quality of work;

• has never failed to pay social security contributions; • has no outstanding tax or duties debt;

• is not blacklisted;

• has never had a professional or other license withdrawn.131

Under the suggested criteria, the tenderer also volunteers to have checks being carried out by the national authorities in the Member States, which will be taken into account not only in this country but throughout the EU, and agrees to his details being kept by the EU coordinating body on procurement.132

An EU White List would compliment blacklists existing in some Member States. The difference between these two lists is that not being on the white list would not automatically lead to exclusion from tenders.

The problem with white lists is that it is easier to buy a certificate than to be removed from the blacklist using unfair practices. For this reason, although blacklisting and white listing usually apply concurrently, on practice blacklists are applied more often than certification, at least in the case of the public procurement. Vymětal argues, that “if the entity is to be put on the grey133 or blacklist in the consequence of suspicion of the corruption and misuse of public means, the costs for avoiding this (pay to avoid costs), and thus also the necessity to corrupt the debarment process are much higher than in the case of the white lists. In that case the costs for including in the white list

131 _{White, S. (Ed.) (2000), Procurement and Organized Crime: An EU-Wide Study, 34.} 132 _Ibid.

133 _{Grey lists are the certain transitional type between the blacklists and white lists. They are the lists of} the entities, the rights of which are suspended or limited temporarily for the reason of the suspicion of the breach of rules, possibility of continuing these activities and high probability of their including in the blacklist. The main purpose of their use is to prevent the serious failures arising from continuing of the unfair activities of the entity. However, the incurred losses (whether economic or non-economic) are usually not compensated in the case of not proving of the wrongdoing. See Vymětal, supra note 127, at 29.

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and also the possibility to manipulate the certification process in its favor are lower (pay to get a benefit)”.134