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Guiding Case No. 5: Complaint about XX Network Construction Project

来源: 中国政府采购网打印10:30, November 20, 2017 Source: China Government Procurement Network [ Print ]

资格审查/获取招标文件/集采目录 Keyword qualification review / obtaining bidding documents / collection catalogue

Case highlights

In public bidding for government procurement projects, the evaluation of suppliers' ability to provide goods and services is an important part of the evaluation activities and should be conducted during the evaluation process. The bidding announcement takes the factors that should be reviewed by the reviewing experts during the review stage as the conditions for suppliers to obtain the bidding documents, which belongs to the factors that should be reviewed at the reviewing stage before the bidding document purchase stage, which violates the legal tendering process and constitutes government procurement The situation of "differential or discriminatory treatment of suppliers on unreasonable conditions" as specified in Article 71 (3) of the Law.

Related Laws

第三十六条第一款第(二)项、第七十一条第(三)项、第七十四条 Articles 7, 18, 35, 36 (1) (2), 71 (3), 7 Fourteen

Basic case

委托代理机构B就该单位“ XX网络建设工程项目”(以下称本项目)进行公开招标。 Purchaser A entrusted agency B to conduct an open tender for the unit's " XX network construction project" (hereinafter referred to as this project).630日,代理机构B发布招标公告。 On June 30 , 2017 , Agency B issued a tender announcement.76日, T公司提出质疑。 On July 6 , 2017 , Company T raised a challenge.

727日, T公司向财政部提起投诉。 On July 27 , 2017 , Company T filed a complaint with the Ministry of Finance. 公司称,招标公告要求供应商需具有CMMI4级证书,该证书是对生产研发软件厂商的要求,与本项目硬件采购无关。 Company T said that the tender announcement required the supplier to have a CMMI level 4 certificate, which is a requirement for the production of R & D software vendors and has nothing to do with the hardware procurement of this project.

级( CMMI level 4 )及以上证书”。 The Ministry of Finance accepted the case in accordance with the law. During the review, it was found that the bidding announcement “qualification requirements for bidders” stipulated that “the bidder has a software capability maturity integration model level 4 ( CMMI level 4 ) certificate and above”. 称,本项目并非单一硬件采购,项目有关批复以及采购人提交的采购需求均涉及软件方面的能力要求。 In this regard, Agency B stated that this project is not a single hardware procurement, and the relevant approvals of the project and the procurement requirements submitted by the purchaser involve software capability requirements. 称,该要求是根据对本项目的基本要求和业务目标而设定的,招标公告“简要要求”和招标文件“货物清单”中均有关于本项目软件需求的体现,如“包含软件定制开发需求功能”的描述,说明本项目并非单纯的硬件采购。 Purchaser A stated that this requirement was set based on the basic requirements and business objectives of the project, and the "brief requirements" of the bidding announcement and the "goods list" of the bidding document both reflected the software requirements of the project, such as "including software The description of "custom development requirements and functions" shows that this project is not just hardware procurement.

级( CMMI level 4 )及以上证书”等条件。 In addition, during the processing of this case, the Ministry of Finance found that the project has the following situations: First, the bidding announcement requires suppliers to have " CMMI level 4 and above certificates" when purchasing bidding documents. condition.730900起,至投标人提交投标文件截止之日20177210930止。 The second is that the project will start from 09:00 on July 3 , 2017 and the deadline for submitting bid documents by bidders will be 09:30 on July 21 , 2017 . 是非集中采购代理机构。 The third is that the products purchased by this project involve network switches, network storage devices, network security products, etc., which are within the scope of the centralized procurement catalog, and the agency B of this project is a non-centralized procurement agency. In response to this, the Ministry of Finance has initiated supervision and inspection procedures.

process result

号)第十七条第(二)项的规定,投诉事项缺乏事实依据,驳回投诉。 The Ministry of Finance made a complaint and a decision on supervision, inspection, and handling: According to Article 17 (2) of the Measures for Handling Complaints from Government Procurement Suppliers (Ministry of Finance Order No. 20 ), the complaints lacked a factual basis, and the complaints were rejected.

第三十六条第一款第(二)项的规定,责令采购人A废标。 Pursuant to Article 36 (1) (b) of the "People's Republic of China Government Procurement Law" , the purchaser A was ordered to abolish the bid.

作出 警告的行政处罚。 According to the provisions of Article 71 of the "People's Republic of China's Government Procurement Law", the administrative penalty of warning to agency B is given .

根据《中华人民共和国政府采购法》第三十五条、第七十一条和第七十四条的规定,责令采购人A和代理机构B限期改正。 Regarding the problems of setting review conditions for the purchase bidding documents in this project, less than 20 days from the time the bidding documents were issued to the submission of bidding documents, and failure to entrust centralized procurement agencies to act as agents for procurement in accordance with the provisions, Article 5, Article 71 and Article 74 ordered the purchaser A and the agency B to make corrections within a time limit.

Handling reasons

The Ministry of Finance believes that with regard to the complaint, the application materials of the project and the review opinions of the relevant departments show that the network construction content of the project involves software capabilities. At the same time, the tender announcement put forward requirements for the software and hardware capabilities of the supplier, that is, the winning supplier should have the ability to design the top layer of the smart campus network, and be able to provide necessary technical advice and suggestions for the subsequent school application development and deployment. Therefore, this project is not a single hardware purchase. The complaint lacks factual basis.

In addition, the Ministry of Finance believes that there are three other situations found in the procurement process of this project: First, the conditions that the bidding announcement requires suppliers to have when purchasing bidding documents are factors that should be reviewed at the review stage and should not be reviewed before. Placed into the bidding document purchase stage. This practice belongs to the situation of "differential or discriminatory treatment of suppliers on unreasonable conditions" as stipulated in Article 71 (3) of the "Public Procurement Law of the People's Republic of China".

Second, the project is less than 20 days from the date when the tender documents are issued to the deadline for bidders to submit tender documents, which violates Article 35 of the "People's Government of the People's Republic of China" Law "Procurement of goods and services by tendering It shall not be less than 20 days from the date when the tender documents are issued to the deadline for submission of bid documents by bidders.

Third, the products purchased by this project involve projects within the scope of the centralized procurement catalog. Article 7, paragraph 3 of the "People's Republic of China's Government Procurement Law" states: "Government procurement projects included in the centralized procurement catalog shall implement centralized procurement." Paragraph 1 of Article 8 states: "Purchasers who purchase government procurement items that are included in the centralized procurement catalog must entrust a centralized procurement agency to purchase on their behalf." However, this project entrusted non-centralized procurement agencies to purchase, which constitutes a violation of the above two provisions.

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