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Guiding Case No. 4: Report of XX Property Fire Service Service Project

来源: 中国政府采购网打印10:27, November 20, 2017 Source: China Government Procurement Network [ Print ]

资格条件/认证证书/特定金额合同业绩 Keywords qualifications / certificates / specific contract performance

   Case highlights

第二十条规定“以不合理的条件对供应商实行差别待遇或者歧视待遇”的情形: 1.不在国务院取消的行政审批项目目录内; 2.申请条件中没有对企业的注册资本、资产总额、营业收入、从业人员、利润、纳税额等规模条件作出限制; 3.与项目的特殊要求存在实质上的关联性; 4.满足该资格许可或认证证书要求的供应商数量具有市场竞争性。 If the relevant qualification license or certification satisfies the following requirements at the same time, it does not belong to the situation stipulated in Article 20 of the Implementing Regulations of the Government Procurement Law that "differential or discriminatory treatment shall be imposed on suppliers on unreasonable conditions": 1. Not cancelled In the list of administrative approval projects; 2. There are no restrictions on the scale of the company's registered capital, total assets, operating income, employees, profits, tax payments, etc. in the application conditions; 3. There is a substantial relationship with the special requirements of the project 4. The number of suppliers that meet the requirements of the qualification license or certification is market competitive.

Due to the direct correlation between the contract amount and operating income, the bidding documents regarding the supplier's contract performance with a certain amount as qualification requirements, essentially excluding or restricting small and medium-sized enterprises from entering the government procurement market with operating income, constituting the government procurement law and government The situation of "differential or discriminatory treatment of suppliers on unreasonable conditions" as stipulated in the procurement regulations.

Related Laws

第二十条、《政府采购促进中小企业发展暂行办法》(财库〔 2011181号)第三条 Article 22 of the "People's Republic of China Government Procurement Law", Article 20 of the " Implementation Regulations of the People's Republic of China Government Procurement Law" , "Interim Measures for Government Procurement to Promote the Development of Small and Medium-sized Enterprises" (Cai Ku [ 2011 ] No. 181 ) article

Basic case

委托代理机构Z就该单位“ XX物业消防运行服务项目”(以下称本项目)进行公开招标,项目预算为325万元。 Purchaser A commissioned agency Z to conduct an open tender for the unit's " XX Property Fire Fighting Operation Service Project" (hereinafter referred to as this project), with a project budget of 3.25 million yuan.927日,代理机构Z发布招标公告,后组织了开标、评标工作,共有9家供应商参与投标。 On September 27 , 2016, the agency Z issued a tender announcement, and then organized the bid opening and evaluation work. A total of 9 suppliers participated in the bidding. 公司为中标候选人。 After evaluation, the bid evaluation committee recommended Company B as the successful candidate.1019日,代理机构Z发布中标公告。 After the purchaser confirmed, on October 19 , 2016, the agency Z issued a tender announcement.

10 14 ,财政部收到关于本项目的举报信,来信反映: 1.本项目招标公告的“供应商资质要求”规定了供应商须具有质量管理体系认证证书、环境管理体系认证证书、职业健康安全管理体系认证证书,上述证书不是国家职能部门颁发的行政许可证,以其作为资格条件属于以不合理的条件对供应商实行差别待遇或歧视待遇的情形。 On October 14 , 2016 , the Ministry of Finance received a report letter about the project, and the letter reflected: 1. The "Supplier Qualification Requirements" of the tender announcement for this project stipulated that the supplier must have a quality management system certification and an environmental management system certification Certificate, Occupational Health and Safety Management System Certification Certificate. The above certificate is not an administrative license issued by a national functional department. It is a condition of qualification that it is subject to differential or discriminatory treatment of suppliers on unreasonable conditions. 本项目招标公告的“供应商资质要求”规定了供应商“自2013年至2015年须具有1个(含)以上合同金额在100万元(含)以上物业管理服务”业绩的内容,属于以不合理的条件对供应商实行差别待遇或歧视待遇的情形。 2. The "Supplier Qualification Requirements" of the bidding announcement for this project stipulates the content of the supplier's "performance from 1 to 2013 (including) property management services with a contract amount of 1 million yuan or more", This is a case of discriminating or discriminating against suppliers on unreasonable conditions.

The Ministry of Finance accepted the case in accordance with the law, and during the review, it was found that the content of the whistleblower was indeed stipulated under the “Supplier Qualification Requirements” of the bidding documents for this project. 称, 1.招标公告要求的三个认证体系证书符合项目本身具有的技术管理特点和实际需要。 In this regard, the agency Z stated that: 1. The three certification system certificates required by the tender announcement meet the technical management characteristics and actual needs of the project itself. 本项目业绩要求是从项目专业特点和实际需要出发,对供应商是否具有履约基本能力的考核,且要求的业绩的合同金额远低于本项目预算金额。 2. The performance requirements of this project are based on the project's professional characteristics and actual needs, and assess whether the supplier has the basic ability to perform. The contract amount of the required performance is far lower than the project budget.

process result

缺乏事实依据。 The Ministry of Finance made a decision to supervise, inspect and deal with the matter: According to the provisions of Article 22, paragraph 2 of the "People's Republic of China's Government Procurement Law", the reported matter 1 lacks factual basis. 号)第三条的规定,举报事项2成立。 In accordance with Article 22, paragraph 2 of the "People's Republic of China Government Procurement Law" and Article 3 of the "Interim Measures for Promoting the Development of Small and Medium-sized Enterprises by Government Procurement" (Cai Ku [2011] No. 181 ), the report 2 was established.

重新开展采购活动。 Pursuant to Article 71 (2) of the "Implementation Regulations of the People's Republic of China on the Government's Purchasing Law", the decision to win the bid was invalid, and Purchaser A was ordered to resume procurement activities.

和代理机构Z就以不合理的条件对供应商实行差别待遇或者歧视待遇的行为限期改正, 并对采购人A和代理机构Z 作出警告的行政处罚。 Pursuant to Article 71 (3) of the "People's Republic of China's Government Procurement Law", the purchaser A and the agency Z were ordered to correct the behavior of discriminating or discriminating against suppliers on unreasonable terms within a time limit. And give administrative warnings to purchaser A and agency Z.

Handling reasons

根据《中华人民共和国政府采购法》第二十二条第二款的规定,采购人可以根据采购项目的特殊要求,规定供应商的特定条件,但不得以不合理的条件对供应商实行差别待遇或者歧视待遇。 According to the Ministry of Finance: Pursuant to the provisions of Article 22, Paragraph 2 of the "People's Government of the People's Republic of China", the purchaser may stipulate specific conditions for the supplier according to the special requirements of the procurement project, but shall not impose unreasonable conditions on the supply. Businesses implement differential or discriminatory treatment. 第二十条规定:“采购人或者采购代理机构有下列情形之一的,属于以不合理的条件对供应商实行差别待遇或者歧视待遇:(一)就同一采购项目向供应商提供有差别的项目信息;(二)设定的资格、技术、商务条件与采购项目的具体特点和实际需要不相适应或者与合同履行无关;(三)采购需求中的技术、服务等要求指向特定供应商、特定产品;(四)以特定行政区域或者特定行业的业绩、奖项作为加分条件或者中标、成交条件;(五)对供应商采取不同的资格审查或者评审标准;(六)限定或者指定特定的专利、商标、品牌或者供应商;(七)非法限定供应商的所有制形式、组织形式或者所在地;(八)以其他不合理条件限制或者排斥潜在供应商。” At the same time, Article 20 of the "Implementation Regulations of the Government Procurement Law of the People's Republic of China" stipulates: "A buyer or a procurement agency that has one of the following circumstances shall be subject to differential or discriminatory treatment of suppliers on unreasonable conditions: (1 ) Provide suppliers with different project information on the same procurement project; (2) The qualifications, technology, and business conditions set are not compatible with the specific characteristics and actual needs of the procurement project or have nothing to do with contract performance; (3) procurement requirements The technology, service, and other requirements are directed to specific suppliers and specific products; (4) the performance and awards of specific administrative regions or industries are used as bonus conditions or the conditions for winning bids and transactions; (5) different qualification examinations are performed on suppliers Or evaluation criteria; (6) restricting or designating specific patents, trademarks, brands, or suppliers; (7) illegally restricting the ownership, organizational form, or location of suppliers; (8) restricting or excluding potential supply by other unreasonable conditions Business. "

,所涉及的质量管理体系认证证书、环境管理体系认证证书、职业健康安全管理体系认证证书不在国务院取消的资格许可和认定事项目录内,且其申请条件中也没有对企业的注册资金、营业收入等业绩规模作出限制。 In this case, regarding the report item 1 , the quality management system certification certificate, environmental management system certification certificate, and occupational health and safety management system certification certificate involved are not included in the list of qualifications and accreditations cancelled by the State Council, and the application conditions are not correct. The performance scale of the registered capital and operating income of the enterprise is restricted. At the same time, the service content of this project is the maintenance of related facilities in the work area and the management of fire protection and security properties. The three system certifications required by the bidding documents are related to the technical management characteristics and actual needs of the project itself. 家供应商中有6家具备这三个证书。 In addition, six of the nine suppliers participating in the tender had these three certificates. Therefore, using the above three certifications as qualification conditions does not belong to the case of applying differential or discriminatory treatment to suppliers on unreasonable conditions.

一是采购人和代理机构有多种方式可以实现对供应商履约能力的考核,将特定金额的合同业绩设定成资格条件并非是唯一不可替代的方式。 Regarding the report item 2 , first, the purchaser and the agency have various ways to achieve the assessment of the supplier's performance, and setting a certain amount of contract performance as qualification conditions is not the only irreplaceable method. 万元的要求低于本项目的预算金额,但该合同业绩金额的限定与项目本身的预算金额并无直接关联性,代理机构提出的该限定低于项目预算金额的说法无法证明100万元合同业绩要求的合理性。 The second is that although the requirement of 1 million yuan is lower than the project's budget amount, the limit of the contract performance amount has no direct relationship with the project's budget amount, and the statement made by the agency that the limit is lower than the project budget amount cannot be proved The reasonableness of the contract performance requirement of 1 million yuan.181号)第三条规定:“任何单位和个人不得阻挠和限制中小企业自由进入本地区和本行业的政府采购市场,政府采购活动不得以注册资本金、资产总额、营业收入、从业人员、利润、纳税额等供应商的规模条件对中小企业实行差别待遇或者歧视待遇。”虽然合同金额的限定不是直接对企业规模的限定,但由于合同金额与营业收入直接相关,本项目招标公告中有关供应商特定金额合同业绩条件的设置,实质是对中小企业营业收入的限制,构成对中小企业实行差别待遇或者歧视待遇,违反了《中华人民共和国政府采购法》第二十二条第二款和 《中华人民共和国政府采购法实施条例》 第二十条第(二)项 的规定。 In addition, Article 3 of the Interim Measures for Promoting the Development of Small and Medium-sized Enterprises by Government Procurement (Caiku [ 2011 ] No. 181 ) stipulates: "No unit or individual may obstruct and restrict the free entry of SMEs into the government procurement market in the region and industry. Purchasing activities must not discriminate or discriminate against small and medium-sized enterprises based on the size of suppliers such as registered capital, total assets, operating income, employees, profits, and tax payments. "Although the contract amount is not a direct limitation on the size of the enterprise However, because the contract amount is directly related to the operating income, the setting of the contract performance conditions for the supplier's specific amount in the project bidding announcement is essentially a restriction on the operating income of SMEs, which constitutes a differential or discriminatory treatment of SMEs, which violates Article 22 (2) of the "People's Republic of China Government Procurement Law" and Article 20 (2) of the "Implementation Regulations of the Government of the People's Republic of China" .

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