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Guiding Case No. 6: Reporting Case of XX Equipment Purchase and Purchase Project

来源: 中国政府采购网打印10:32, November 20, 2017 Source: China Government Procurement Network [ Print ]

Key words   混盖公章/合理解释 Malicious collusion / mixed official seal / reasonable explanation

   Case highlights

In order to maintain an open, fair and just government procurement order, suppliers shall, in accordance with their respective conditions and capabilities, participate in government procurement activities in accordance with the law, with integrity, and independently, and shall not engage in malicious collusion in order to obtain a specific supplier's bid and transaction. The official seal has the legal effect on behalf of the company's will. In the government procurement activities, the supplier shall be responsible for the authenticity and legality of the bidding materials stamped with the company's official seal. If the bidding documents or response documents of different bidders are mixed with official seals and cannot be reasonably explained, it is equivalent to mixing bidding documents of different bidders with each other, which belongs to Article 74 (7) of the Implementation Regulations of the Government Procurement Law Collusion between specified suppliers in order to win and bid for a particular supplier.

号)施行之后,不同投标人之间混盖公章的行为,构成该办法第三十七条第(五)项规定的“不同投标人的投标文件相互混装”的情形。 After the implementation of the “Administrative Measures on Tendering and Bidding of Government Procurement of Goods and Services” (Ministry of Finance Order No. 87 ), the act of mixing official seals between different bidders constitutes the “different provisions” in Article 37 (5) "Bidder's bid documents are mixed with each other".

Related Laws

Article 77 of the Government Procurement Law of the People's Republic of China, Article 74 of the Implementation Regulations of the Government Procurement Law of the People's Republic of China

Basic case

委托代理机构B就该单位“ XX设备购置采购项目”(以下称本项目)采用网上竞价方式采购,采购预算为56万元。 Purchaser A entrusted agency B to purchase the unit's " XX equipment purchase and purchase project" (hereinafter referred to as this project) using online bidding, with a procurement budget of 560,000 yuan.810日,代理机构B发布网上竞价公告。 On August 10 , 2015, Agency B issued an online bidding announcement.817日,竞价截止,共六家供应商参与竞价。 On August 17 , 2015, the bidding ended, and a total of six suppliers participated in the bidding.824日,代理机构B发布成交结果, C公司为成交供应商,成交金额为55.8万元。 On August 24 , 2015, the agency B released the transaction results. Company C was the transaction supplier with a transaction amount of RMB 558,000 .

1020日,财政部收到关于该项目的举报信,来信反映,在本项目网上竞价活动中, C公司以高价成交,竞价结果有失公平。 On October 20 , 2015, the Ministry of Finance received a report letter about the project, and the letter reflected that during the project's online bidding activity, Company C had been transacted at a high price, and the bidding result was unfair. 公司提交的竞价文件中,法人代表授权书、技术指标应答书和报价单上加盖的是C公司的公章。 The Ministry of Finance accepted the case in accordance with the law. During the review, it was found that in the bidding document submitted by another supplier D company of the project, the legal representative's authorization letter, technical index response letter and quotation were stamped with the official seal of company C. 公司称,对D公司的竞价文件加盖自己公章一事不知情。 In this regard, Company C claimed that it had no knowledge of stamping its official seal on Company D' s bidding documents. 公司称,确实存在竞价文件中加盖的公章与公司名称不符的情况,原因是公司职员在与C公司对账过程中拿错公章,将C公司的公章直接加盖在自己的竞价文件中,未经核查直接上传了竞价文件。 Company D claimed that there was a case where the official seal stamped in the bidding document did not match the company's name, because the company employee had wrongly sealed the official seal in the process of reconciling with Company C and stamped the official seal of Company C directly on his bid , Bid files were uploaded without verification.

公司和D公司分别作出行政处罚决定。 After the end of the review by the Ministry of Finance, a decision on supervision, inspection and processing was made according to law, and administrative penalties were decided on Company C and Company D respectively. 公司不服对其作出的处罚决定,向法院提起行政诉讼。 After that, Company C refused to accept the punishment decision and filed an administrative lawsuit with the court. 公司在财政部作出处罚决定前已将合同支付金额予以退还,所以部分撤销了处罚决定中没收违法所得的行政处罚,同时驳回C公司的其他诉讼请求。 The court of first instance held that, because Company C had refunded the contract payment amount before the Ministry of Finance made the penalty decision, it partially revoked the administrative penalty of confiscation of illegal gains in the penalty decision, and rejected other Company C 's claims.

   process result

The Ministry of Finance made a decision on supervision, inspection and processing: in accordance with the provisions of Article 77, Paragraph 2 of the "People's Government of the People's Republic of China", the transaction of this project was determined to be invalid.

公司和D公司就其违法行为分别作出行政处罚决定:根据《中华人民共和国政府采购法》第七十七条第一款的规定,对C公司处以采购金额千分之五的罚款,列入不良行为记录名单,在一年内禁止参加政府采购活动,没收违法所得(即采购合同已支付金额);对D公司处以采购金额千分之五的罚款,列入不良行为记录名单,在一年内禁止参加政府采购活动。 The Ministry of Finance made separate administrative punishment decisions for Company C and Company D for their illegal acts: According to the provisions of Article 77, paragraph 1, of the "Public Procurement Law of the People's Republic of China," Company C was fined five percent of the purchase amount. , Included in the list of bad behavior records, forbidden to participate in government procurement activities within one year, confiscation of illegal income (that is, the amount paid for the purchase contract); company D was fined five percent of the purchase amount, included in the list of bad behavior records, in Participation in government procurement activities is prohibited for one year.

Handling reasons

The Ministry of Finance believes that the official seal has the legal effect of representing the will of the company. 公司提交的竞价文件中,法人代表授权书、技术指标应答书和报价单上加盖的是C公司的公章。 In this case, in the bidding documents submitted by Company D , the legal representative's power of attorney, technical index response and quotation were stamped with the official seal of Company C. 公司辩称对此不知情, D公司辩称因工作人员失误错盖公章,但正常来讲,两家公司的对账行为与准备投标文件行为并不存在任何关联,参与对账的工作人员与准备投标的工作人员也不会重合, D公司的辩解明显违背常理,不属于合理解释范围。 Although Company C argued that it was unaware of this, and Company D argued that the official seal had been mistakenly mistaken by staff members, but in general, the reconciliation of the two companies was not related to the preparation of bid documents, and they participated in the reconciliation The personnel will not overlap with those who are preparing to bid, and Company D' s justification is obviously contrary to common sense and does not fall within the scope of reasonable explanation. The official seal has the legal effect on behalf of the company's will. Mixing the official seal is equivalent to mixing the bidding documents of different bidders with each other. 公司部分竞价文件中加盖C公司公章,且两家公司对此不能给出合理解释的事实,应认定C公司与D公司的行为属于《中华人民共和国政府采购法实施条例》第七十四条第(七)项规定的恶意串通的情形。 Based on the fact that part of the bidding documents of company D was affixed with the official seal of company C , and the two companies could not reasonably explain this, the behavior of company C and company D should be deemed to be the 70th of the "Implementation Regulations of the Government Procurement Law of the People's Republic of China" Cases of malicious collusion under Article 4 (7).

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