Global Compliance

Bahrain Legislation Concerning Bribery

Introduction

The Middle East has massive infrastructural investment programs which are dependent on government contracts in the construction industry. The nature of the construction industry is as such where the acquisition of goods and services, and the selection of suppliers and contractors are decided by the individual; this same individual can be profoundly influenced for winning tenders on a large-scale project. Consequently, this makes bribery a significant issue in the construction industry. Globally, the procurement segment in the construction industry is where the majority of corruption takes place. 

The key regulation that governs the act of bribery in Bahrain are:

• Amiri Decree number 15/1976 of Bahrain (The Penal Code)
• Legislative Decree number 36/2002 of Bahrain (The tender Law)
• Law Number 8/2008 regarding the amendments of certain provisions of the penal code promulgated by the legislative decree number 15/1976

To Increase Foreign investment in Bahrain, and with the aim of strengthening its position as a financial hub in the Middle East by the year 2030, Bahrain is actively enforcing laws that encourage an attractive business environment for International corporations.
In 2010, Bahrain ratified the United Nations Convention against Corruption (the "UNCAC"). The UNCAC mandates the member countries such as Oman to implement several anti-corruption measures in public, private and the judiciary department.
In October 2016, Bahrain also signed into the International Anti- Corruption Academy (IACA). After which they also ratified the Arab Anti-Corruption convention in February 2017.

The Key Regulations
The Penal code

• According to the provision stated Article 186 of The Penal code, Imprisonment is the punishment for every civil servant or officer entrusted with a public service who, either directly or indirectly, asks for or accepts for himself or others a gift or privilege of any kind or a promise to be given to any of the above. These criteria must be committed with the intention of doing something or omitting to do an act involved in the duties of his office. 
• Imprisonment for a period not exceeding 10 years is inflicted upon every civil servant or officer entrusted with a public service as per Article 188, who, either directly or indirectly, asks for or accepts for himself or others a gift or privilege of any kind whatsoever after the completion of doing an act or omitting to do an act which is in violation of the duties of his office.
• The difference between Article 186 and 188 is of the timing. One Article criminalizes the seeking of bribes before the actual act is committed, the other penalizes the seeking of bribes after an act is committed.
• Article 189 - A punishment of imprisonment for a period not exceeding five years will be inflicted upon every civil servant or officer entrusted with a public service who, either directly or indirectly, asks for or accepts for himself or others a gift or privilege of any kind whatsoever for doing an act or omitting to do such action not constituting a part of his duties. This extends to penalize the individual if they have allegedly or wrongly believed that they are capable of performing the promised act.
• Article 190 deals with the person who is offering the bribe. The punishment of imprisonment for a period of no less than three months will be inflicted upon every person who either directly or indirectly provides a civil servant or an officer entrusted with a public service in a foreign state a gift or privilege of any kind whatsoever to him or another person, or a promise to give such a thing to obtain or retain a business or any other benefit. In the scope of pursuing an international business by a civil servant or officer entrusted with a public service, to act or omit to do an act, which is in breach of the duties of his office.
• In addition to the punishments mentioned above, the court will also confiscate a bribe from the receiver. The court may also impose a fine of not less than BHD 500 and not more than BHD 10,000.

The Tender Law

• Article 65 of The Tender law prohibits a supplier or contractor to do any of the following acts:
  • To influence the results of the tender or the award decision with the aim of overcoming competition by giving bribes and incentives to any officer in the buyer, Board or any government authority.
  • To obtain information about the tender by illegal methods.
  • To connive with contractors or suppliers participating in the tender.
  • To engage in any practices leading to a monopoly.
• As per Article 32, a bid shall be rejected If the bidder gives a bribe or any temptation to an employee of the buyer or of any other government authority.
• Article 16: A Board member or any person who participates in tender activities is to refrain from taking part in all the line of action thereof if he has a direct interest in the proposed deal.
• A direct interest means that the member, person, spouse or one of his relatives to the third degree is the individual who has submitted the bid in question or owns a share thereof, a board member of the organization that has proposed the bid, an officer thereof, an agent acting on its behalf or a sponsor thereof.
• Civil servants, government officials and other employees of the authorities cannot personally or through third parties propose bids or offers to the Government or such authorities. Further, no goods shall be purchased from them nor shall they be instructed to execute works. This is restricted under Article 7.

Glossary

• As defined in the Black Law’s Dictionary, Bribery is the act of offering, giving, receiving, or seeking of any item of value to influence the actions of a person or an authority in control of a public or legal duty.
• UNCAC provides the following definitions for public and private sector bribery:
  • Private Sector - A commitment, offering or giving, directly or indirectly, for an undue benefit to any person who authorizes or works, in any potential, for a private sector entity so that he, in breach of his duties, proceed or refrain from acting.
  • Public Sector - A commitment, offering or giving, to a public official, directly or indirectly, of an undue benefit, for the official himself or another person or entity, so that the official act or refrain from proceeding in the exercise of his or her official duties.

The tender law provides for the following definitions:

• Government Authority or Buyer: all ministries, organizations, public institutions, municipalities and government authorities that have an independent or supplementary budget and the companies that are fully owned by the government, Consultative Council and House of Representatives.
• Supplier or Contractor:  Businesses, companies, and other commercial establishments that have a corporate entity and individuals who participate in purchasing procedures to meet the buyer’s requirements for goods, constructions or services.
• Amiri Decree number 15/1976 of Bahrain (The Penal Code).
• Legislative Decree number 36/2002 of Bahrain (The tender Law).
• Law Number 8/2008.