As many countries have experienced firsthand, corruption and bribery can have severe and far-reaching effects throughout a country’s political and economic systems. They not only impact the financial status and administrative ability of the countries involved, but at the same time, can also create and perpetuate a negative image of those countries to current or potential trade or investment partners. Recognizing the importance of minimizing or eliminating the damaging effects of bribery and corruption, many countries have made—and continue to make—efforts to strengthen their anticorruption and antibribery capabilities.
Thailand has enacted relevant laws and enforced anticorruption measures in both the public and private sectors. Under Thai law, a bribe can take the form of property or a benefit. “Property” can be tangible (such as money, a car, a house, etc.) or intangible (such as copyrights, patents, etc.), while a “benefit” can be a gift, a discount, entertainment, healthcare costs, a job promotion, and so on.
This article discusses the key provisions related to criminal offenses committed by private parties under three anticorruption laws in Thailand:
- Organic Act on Anti-Corruption B.E. 2561 (2018)
- Public Procurement and Supplies Administration Act, B.E. 2560 (2017)
- Act on Offenses Relating to the Submission of Bids to State Agencies B.E. 2542 (1999)
Organic Act on Anti-Corruption
The key provision of the Organic Act on Anti-Corruption (OAAC) is Section 176, which prohibits giving, offering, or promising property or a benefit to a public official, foreign public official, or official of a public international organization with the intent to induce the official to wrongfully perform his or her duty. Violations are subject to criminal liability, punishable by imprisonment for up to five years, a fine of up to THB 100,000 (approx. USD 3,000), or both.
If the offender is a person associated with a company that does not have appropriate internal control measures to prevent bribery—and the offense was meant to benefit that company—the company would be deemed to have committed the offense and could face a fine of one to two times the damages caused or benefit received. “Company” in this instance refers to a company established under Thai law or established under a foreign law and operating in Thailand, while “a person associated with a company” includes representatives, employees, agents, affiliated companies, and any other person acting on the company’s behalf.
The required “appropriate internal control measures” are evidenced by the following conditions:
- Anticorruption must be emphasized as an important policy issue by the company’s top management.
- The company must apply anticorruption measures to parties who have business relations with it.
- The company’s human resources management guidelines must correspond to the anticorruption measures.
- The company must have measures for reporting offenses or suspicious incidents.
Public Procurement Act
The purpose of the Public Procurement and Supplies Administration Act (“Public Procurement Act”) is to establish rules for the procurement activities of public officials. As such, the public procurement must be worthwhile (i.e., priced reasonably for meeting the project’s objectives), transparent, verifiable, and effective.
Under the Public Procurement Act, “public procurement” refers to operations related to the acquisition of supplies through a sale, hire, lease, or exchange transaction. The “supplies” referred to under this law include goods, services, construction work, consultancy work, and design or construction supervision work.
Section 19 of the Public Procurement Act provides that a business operator who would like to engage in public procurement for a project valued at THB 500 million (approx. USD 15 million) or more must put in place an anticorruption policy and have appropriate anticorruption measures—similar to the measures mentioned above with respect to the OAAC.
Section 120 of this law imposes criminal liability for violations on both the public officer responsible for the public procurement and the private person (individual or corporate entity) involved in the corruption. Punishments can include imprisonment for one to ten years, a fine of THB 20,000–200,000 (approx. USD 600–6,000), or both.
Submission of Bids Act
The Act on Offenses Relating to the Submission of Bids to State Agencies (also known as the “Submission of Bids Act” or the “Collusion Law”) addresses corruption by means of bid rigging. Bid rigging takes place when two or more bidders agree to submit their separate bids with the objective of fixing the price to take advantage of a government agency, to avoid a real and fair price competition, or to gain any benefit for the bidders.
The law defines “submission of bids” as submitting an offer in order to get a contract with a government agency for purchase, hire, exchange, lease, disposal of property, acquisition of a concession, or acquisition of any other rights.
Bid rigging can take the following forms:
- Cover bidding is when bidders agree to submit their offers with the intention to let the agreed bidder win the bidding. To ensure that they will not be awarded the contract, the losing bidders may submit offers with higher prices or more difficult conditions for performing the work.
- Bid suppression can occur when bidders agree not to submit any offer or agree to initially submit an offer and withdraw it later, so that a certain bidder can win.
- Bid rotation refers to bidders agreeing to rotate the winning bidder—for example, bidder A will win one project, and bidder B will win the next one.
The key offenses—each detailed in its own section of the act—are as follows:
- Collusion among bidders who dishonestly submit a bid (bid rigging).
- Giving money, property, or any other benefit to induce a person to dishonestly participate in submission of a bid.
- Dishonestly using force or coercion to get a person to participate in submitting a bid.
- Using deception to prevent others from submitting a bid.
- Submitting a bid (whether too low or too high) making it impossible for the bidder to fully perform its obligations under a contract with the government agency.
These offenses, depending on their seriousness, are punishable by various terms of imprisonment. Apart from imprisonment, offenders (both individuals and corporate entities) may be subject to a fine of 50% of the amount of the highest bid submitted, or the full amount of the contract concluded with the government agency—whichever is greater. The severity of this substantial fine indicates Thailand’s intention to seriously penalize offenders under this law.
Regardless of the strictness of a country’s anticorruption laws or the severity of penalties that can be imposed, implementation and enforcement of these laws would be inefficient or useless if public officials and business operators do not fully understand them or do not take anticorruption matters seriously.
Without sufficient knowledge of anticorruption laws and proper prevention measures, employees and management team members of business operators may be at risk of violating the applicable anticorruption laws. Therefore, prudent business operators should have an appropriate anticorruption policy in place to provide knowledge and training to their employees and other associates.