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Last updated: November 1, 2025｜Author:Lawyer Li Yusheng(Fidelity Law's host lawyer/guest legal commentator on political commentary programs)
Foreword: The dilemma of procurement personnel: doing well is their duty, making mistakes is seen as "profiteering"?
In the civil service, procurement positions are often considered "high-risk, dead-end jobs." Procurement personnel not only need to be familiar with the complex Government Procurement Act, but also have to deal with pressure from suppliers and demands from superiors. Most frighteningly, a careless procedural flaw may not just result in administrative penalties, but could directly escalate to "profiteering" under the Anti-Corruption Act.
Many civil servants summoned for questioning by prosecutors often protest their innocence: "I didn't take a single penny from the manufacturers; I was just trying to meet deadlines!" But...Fuda Law FirmA serious reminder is necessary:The crime of profiteering does not require receiving money as an element.If you violate procurement regulations and allow the manufacturer to profit, you have already stepped into the deep waters of the law.
Why does violating the "Government Procurement Law" become a "crime of profiteering"?
To understand this risk, the two laws must be considered in conjunction.
- Article 6, Paragraph 1, Subparagraph 4 of the Corruption Prevention and Control Ordinance (Offense of Seeking Personal Gain): One of the constituent elements is "Knowingly violating the law"...laws and regulations authorized by law..."
- Government Procurement Law: This is precisely the "law" referred to in the aforementioned crime of profiteering.
In other words, when procurement personnel violate procurement laws (e.g., unduly restricting competition, leaking reserve prices, or lenient acceptance procedures), they fulfill the prerequisite of "violation of the law" for the crime of profiteering. This is especially true if the act simultaneously benefits a specific supplier (e.g., winning the bid, or avoiding fines)."Violation of procurement laws + manufacturer profit = crime of profiteering" The formula is very likely to hold true.
II. Three major pitfalls that are most likely to lead to legal violations during the procurement process.
Based on our experience handling numerous corruption cases, the following three stages are the key areas that investigative agencies most frequently focus on:
1. Specification Development Stage: Custom-made "Label Binding"
This is the most common type of profiteering.
- Types of illegal acts: Unnecessary special specifications are set in the tender documents (e.g., specifying a particular brand or model, or extremely special patented technology), resulting in only one specific manufacturer being able to bid (exclusive business).
- Legal risks: This violates Article 26 of the Government Procurement Law, which prohibits "restricting competition." If the necessity of the specification cannot be proven, prosecutors can easily conclude that it was a scheme designed to benefit a specific manufacturer.
2. Bidding and selection stage: Leaking secrets
- Types of illegal acts: Leaking the "list of selection committee members" or "reserve price" to specific manufacturers before the bidding process allows them to influence the selection committee or submit precise bids.
- Legal risks: This violates Article 34 of the Government Procurement Law, which stipulates confidentiality. This not only involves the crime of leaking secrets under Article 132 of the Criminal Code, but if the manufacturer wins the bid and profits from it, it also directly constitutes the crime of profiteering.
3. Performance and Acceptance Stage: Inaccurate Acceptance
- Types of illegal acts: Manufacturers cut corners or delay delivery, but purchasing personnel, due to personal pressure or to save trouble, may check "qualified" on the acceptance record or fail to deduct the penalty for breach of contract as agreed.
- Legal risks: This is a typical case of "forgiving someone's debts" or "allowing them to gain illegal benefits." Knowingly allowing someone who is unqualified to pass is tantamount to profiting from their misconduct.
Legal Practice Reminder: Many civil servants think during inspections, "This is just a minor flaw; deducting money is too much trouble. We can improve it next time."Please note! This is the starting point of the crime of profiteering. Being lenient with manufacturers is being cruel to yourself.
III. Administrative Negligence vs. Criminal Profiteering: How a Lawyer Teaches You to Define It
Not all violations of procurement laws will result in arrests and closures. In court proceedings, our most important task is to prove that the party's actions constitute "administrative negligence."Instead"Deliberately seeking personal gain."
1. The key lies in "knowing".
The Supreme Court’s practical opinion emphasizes that the crime of profiteering must be committed by “knowingly violating the law”.
- Defense strategy: If the procedural flaws are due to unclear interpretation of procurement regulations, lack of experience, or incorrect instructions from superiors, this constitutes "negligence."The crime of profiteering is not punishable by negligence..
- Preservation of evidence: Did the accounting office and the ethics office handle the signing of the document at the time? Did you request an explanation from the construction commission? These are all ways to prove that you "did not do it intentionally."
2. The Boundaries of "Convenience for the People"
If your workaround is for the benefit of the organization (e.g., emergency procurement for disaster prevention) and does not benefit any specific private individual, it constitutes legitimate administrative discretion (convenience to the public). However, if it violates mandatory procurement procedures (e.g., deliberately breaking down procurement into smaller transactions when open bidding is required), it is difficult to claim that it is for the benefit of the public.
IV. Procurement Personnel Self-Protection SOP: What to do when facing an investigation?
When you discover problems with the procurement cases you handled, or when the case files have been retrieved by the investigation authorities:
- Organize the entire case file: Backup all documents from requisition, bidding, bid opening, awarding of contracts to acceptance. In particular, the "signatures" are crucial evidence of the decision-making process.
- Do not contact manufacturers privately without authorization. During sensitive periods, any private calls or meetings with manufacturers could be monitored or intercepted, and interpreted as evidence collusion.
- Seek professional legal assistance: Procurement cases involve highly specialized legal interpretations. Lawyers without expertise in engineering or procurement practices often struggle to identify key points for their defense.
V. Frequently Asked Questions (FAQ)
Q1: I relaxed the standards slightly because I didn't want the bidding to fail. Does that count as profiting from the situation? A: It's very dangerous. If the "relaxed standards" are not implemented through a legal design change procedure or announcement, but are instead passed privately by manufacturers, even if the motive is to avoid failing the bid, it still objectively allows manufacturers to obtain "undue benefits," which is very likely to constitute profiteering.
Q2: Is it easy to be sued when using "restricted bidding"? A: Restricted tendering (negotiated/compared pricing) is indeed a "hotspot" in the eyes of prosecutors and investigators because of the lack of open competition. When using this method, be sure to confirm that it meets the requirements of Article 22 of the Government Procurement Act, and state the reasons in detail in the signed document. Do not abuse it for the sake of convenience.
Q3: What happens if the amount involved in the crime of profiteering is very small (e.g., a few thousand dollars)? A: Article 12 of the Anti-Corruption Law stipulates that if the circumstances are minor and the proceeds or intended gains are within the scope of the crime, the offender shall be deemed to have committed the crime.Less than NT$50,000Those who violate this rule will have their sentences reduced. However, please note that this is only a "reduction"; the crime still stands, and their civil servant status remains jeopardized.
Conclusion: Avoid crossing procurement red lines; consult with the relevant authorities immediately upon encountering a case.
There are countless regulations governing government procurement, and civil servants may inadvertently break the law if they are not careful when performing their duties.Fuda Law Firm With extensive experience in government procurement law and defense of corruption cases, we understand the challenges of procurement practice and can accurately identify key evidence of "lack of criminal intent" from complex case files.
If you are facing legal troubles due to a procurement case, please contact us immediately to prevent administrative negligence from turning into imprisonment.
[Exclusive Analysis] Understand with one chart: Are you "legally providing convenience to the public" or "illegally profiting"?
To help civil servants quickly assess their own performance, Fidelity Law Firm has compiled key criteria used by prosecutors and judges in practice. Please be sure to check them against your case:
| Comparison items | Legal and convenient (Administrative Discretion) |
Illegal profiteering (Illegal Profiting) |
Key to legal judgment (Key Differentiator) |
|---|---|---|---|
| Legal basis | Within the scope of discretion authorized by law, provide convenience to the public. | Knowingly violatingLaws, regulations, orders from authorities, or autonomous regulations. | Whether or not there is a "violation of the law" is a prerequisite for the crime of profiteering. If there is no violation of the law, it is merely an administrative defect. |
| Procedural justice | It complies with due administrative procedures (such as open bidding and legal announcement). | Intentionally circumventing procedures (e.g., breaking down a major case into smaller ones to circumvent procurement laws, or leaking the bottom price privately). | Whether the procedure is "open and transparent" and "compliant with regulations". |
| subjective intent | The purpose was to improve the efficiency of government agencies and resolve public grievances, without any criminal intent. | KnowingTo do something that is impossible is to have the intention of benefiting a specific person. | "Knowing"These two words are crucial. Mistakes (carelessness) should not be punished, but rather rewarded. |
| Profit distribution | The benefits belong to the public or institutions (public welfare), and although individuals may benefit, these are reflected benefits. | The benefit belongs to a specific private individual or group (private interest), and the benefit should not have been obtained by them. | Is this benefit an "illegal benefit" (something that shouldn't have been obtained in the first place)? |
| Common Cases | Emergency repairs were carried out during the typhoon, and although no public bidding was conducted, the process complied with emergency procurement regulations. | To ensure that relatives and friends win the bid, unnecessary special restrictions (binding of the bid) are deliberately added to the specifications. | Does it possess "exclusivity" and "specificity"? |
[Consult Fidelity Law Firm - Procurement and Corruption Defense Experts Now]
About the author | Fidelity Legal Attorney Li Yusheng
📌 Current position:Host attorney at Fidelity Law Firm / Guest legal commentator on political commentary programs
📌 Areas of expertise:Defense of civil servants in corruption cases, political donation cases, and acquittal of crimes related to profiteering
📌 Practice philosophy:"While prosecutors scrutinize every financial transaction under a microscope, we use our expertise to show the court the full picture."
Final reminder: Corruption cases have1-year golden defense periodThe average time from interview to prosecution is only 10 months. Call Fidelity Legal's 24-hour hotline now. 02-77093611, make an appointment for consultation on [Survival Strategies for Corruption Cases].
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# Corruption # Anti-Corruption Ordinance # Public servant crime # Lawyers specializing in corruption cases # Crime of seeking profit # Crime of accepting bribes # Crime of offering bribes
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