Last year, the Ministry of Finance issued 201 administrative information announcements. There were 43 administrative penalties issued by the Ministry of Finance for warning, and 20 administrative notices for which the Ministry of Finance issued fines, included in the list of bad behavior records, and prohibited from participating in government procurement activities for a certain period of time. Punishment
In recent years, the number of government procurement dispute cases has increased significantly year by year. To this end, the Ministry of Finance has continuously improved the government procurement administrative ruling mechanism, optimized relief procedures, further enhanced the level of legalization of government procurement administrative rulings, and resolutely safeguarded the fairness and justice of government procurement.
The government procurement information announcement is an important manifestation of the results of government procurement administrative decisions. A reporter from the China Government Procurement News recently made a statistical analysis of the government procurement information announcements issued by the Ministry of Finance in 2018. Last year, the Ministry of Finance issued 201 government procurement information announcements, that is, the 551th Ministry of Finance ’s government procurement information announcement. From eleven to seven hundred and eleven. These include 37 items of “Supervision and Inspection of Government Procurement Agencies in 2017”, 36 items of daily supervision and inspection, 79 Ministry of Finance complaint handling decisions, 79 Ministry of Finance complaint and supervision and inspection handling decisions, and 49 reporting penalties. It can be seen from the information announcement issued by the Ministry of Finance that, in response to these issues, the Ministry of Finance has made corresponding punishments in strict accordance with the law. Of the 201 information announcements, most of the Ministry of Finance have dealt with the rectification ordered by relevant parties. Nearly a quarter of the announcements involved in complaints were found to be lack of factual basis and were rejected. There were 43 announcements (including agency inspections). ), The Ministry of Finance issued administrative penalties for warning to related parties, one announced that the Ministry of Finance issued administrative penalties for fines to related parties, and one announced that the Ministry of Finance had included related parties in the list of bad behavior records, and forbidding participation in the government for a certain period of time. Administrative penalties for procurement activities. In addition, there were 20 announcements that the Ministry of Finance issued administrative penalties for fines on related parties, inclusion in the list of bad behavior records, and banning participation in government procurement activities for a certain period of time.
A wake-up call for "assessing piles"
The information announcement issued by the Ministry of Finance in 2018 involves issues such as procurement documents and the results of successful bids. In the information announcement concerning procurement documents, “the situation in which bidding documents have a review standard score setting that does not correspond to the quantitative indicators of the review factors” and “the bidding documents implement differential or discriminatory treatment of suppliers on unreasonable conditions” are “important disaster area".
In government procurement complaint processing decisions, it is often seen that "the score setting in the bidding document review standard does not correspond to the quantitative index of the review factor". What is the score setting in the review standard that does not correspond to the quantitative index of the review factor, and how does the score setting in the review standard correspond to the quantitative index of the review factor?
According to the "Interpretation of the Implementation Regulations of the Government Procurement Law of the People's Republic of China", "When the comprehensive scoring method is adopted in the government procurement review, the score setting in the review standard should correspond to the quantitative index of the review factor. It contains two meanings: one is review The index of the factor must be quantifiable, and the index that cannot be quantified cannot be used as the review factor. Second, after the index of the review factor is quantified, the score of the scoring standard must also be quantified. The index of the review factor is quantified as the interval, and the score of the scoring standard. It must also be quantified to the interval. As stipulated in the bidding document evaluation standards, 5-8 points for well-known international brands, 3-4 points for domestic well-known brands, and 1-2 points for domestic general brands. Such a rule violates the above requirements, one is "International well-known", "domestic well-known" and "domestic domestic" are not quantified indicators of the brand, there is no standard for judging; the second is that although each point setting is quantified to 5-8 points, 3-4 points, 1-2 points Range, but international well-known brands, domestic well-known brands, and domestic general brands have not been refined to correspond to the corresponding range. It can be seen that the core requirements of the regulation Overall rating factors must be quantified objective points, the maximum limit the discretion of the members of the bid evaluation committee in Bid Evaluation.
Why is the problem of "repeated punishment and repeated offense" of the question that "the score setting in the bidding document review standard does not correspond to the quantitative index of the review factor"? Wang Zhouhuan, deputy director of the Government Procurement Management Office of the Shanghai Finance Bureau, said there are two reasons for this. First, the purchaser is irresponsible and the agency's professional capabilities are insufficient. The purchaser did not inform the agency in detail of the specific project requirements and characteristics, or the purchaser's procurement requirements for the project were "silly". The other is that the agency's professional capabilities are insufficient. Set grades without specific quantitative indicators in the scoring criteria, so that bid evaluation experts can "evaluate the pile" at will. The so-called "estimated pile" originally meant that no scale was used for trading. The unit of measurement was not "pounds", but "heap". The extension to the government procurement review means that in the setting of scoring scores, there is no specific quantification of scoring factor indicators, but the evaluation experts evaluate the scores according to their own understanding. Once there is a problem with the project evaluation results, the evaluation by the evaluation experts is irrelevant. Second, the purchaser actually has tendencies and restrictions. Without the evaluation score being quantified, bidders cannot respond to bids according to specific scoring criteria and submit corresponding bidding documents. Bidders can only “blindly vote” or focus their efforts on trying to figure out the buyer ’s mind, which can easily lead to Suppliers and purchasers communicate in advance and even collude with each other.
How to put an end to the "assessment score"? Shen Deneng, a lawyer of Guangxi Guangtianyi Law Firm, believes that a procurement project with unspecific and unclear scoring criteria will inevitably lead to unsatisfactory evaluation results. In order to ensure the quality of the project, according to the needs and characteristics of the project, the agency must communicate with the purchaser. When setting bid evaluation criteria in detail, we will set the standards for bid evaluation and set the scoring factors based on the original intention of high-quality agency projects. The evaluation factors should be quantified to the corresponding intervals, and different scores corresponding to each interval should be set, and no fuzzy meaning such as excellent, good, medium, and poor can be used as the standard. In addition, Li Gang, the government procurement office of the Xinhua News Agency's General Office, also gave his own suggestions. According to the specific characteristics of the project, the purchaser and agency need to refine the key points of business conditions and procurement requirements. The setting of the scoring items should be consistent with the implementation and performance of the project. In order to avoid the risk of discrimination and exclusivity, it is necessary to focus on the big and the small and streamline the setting of corresponding scores.
Say "No" to discrimination and discrimination
The information announcement issued by the Ministry of Finance in 2018 regarding "the bidding documents to implement differential or discriminatory treatment of suppliers on unreasonable conditions" can be described as "car-loading." This includes "the factors that should be reviewed in the review and qualification review stage before the bidding document purchase stage", such as the Ministry of Finance of the People's Republic of China Government Procurement Information Bulletin No. 640, No. 641, No. 656; there is also "taking the supplier's contract performance with a specific amount as an evaluation factor", such as the Government Procurement Information Announcement No. 640 and No. 641 of the Ministry of Finance of the People's Republic of China.
Han Kun Law Firm Meng Yuan said that in public bidding for government procurement projects, the evaluation of suppliers' ability to provide goods and services is an important part of the review activity and should be conducted during the review process. The tender notice regards factors that should have been reviewed by review experts during the review stage as the qualification conditions for suppliers to obtain bidding documents. It is a prerequisite for the factors that should be reviewed during the review stage to the bid document purchase stage. The case of "differential or discriminatory treatment of suppliers on unreasonable conditions" as provided for in Article 71 of the Purchasing Law. In addition, Article 5 of the Government Procurement Law stipulates that "No unit or individual may use any method to obstruct and restrict suppliers from freely entering the government procurement market in the region and industry." For example, the contract performance of a certain industry is used as Eligibility conditions or bonus factors. Another example is the procurement of a project requires that the supplier must obtain an award from an administrative area or industry in order to participate in procurement activities or give extra points. This practice is a concrete manifestation of local protection or industry blockade and should be strictly prohibited.
From the results of the announcement, the Ministry of Finance has imposed corresponding penalties on the above parties in accordance with Articles 71 and 75 of the Government Procurement Law, respectively.
"No mercy" on the illegal behavior of political affairs
As we all know, the integrity of government procurement by suppliers is closely related to maintaining a fair competition environment for government procurement and the legitimate rights and interests of parties to government procurement. In order to ensure the government's sunny, standard, and fair procurement, laws and regulations such as the Government Procurement Law clearly define and strictly prohibit acts such as "malicious collusion" and "providing false materials to win the bid." However, in practice, some suppliers still have a fluke mentality and try their best.
The main issues related to the winning results in the information announcement issued by the Ministry of Finance in 2018 were "malicious collusion" and "providing false materials to win the bid." "Malicious collusion" is mostly manifested in the fact that the response documents of the two bidding companies have multiple item specifications in the itemized quotation table that are consistent, that there are multiple errors in the deviation table, that the subjective content is consistent, or that the company ’s official seal is stamped.
“Providing false materials to win the bid” is mainly manifested in the false reporting of technical materials, product manuals, samples, etc., which are described and agreed by the supplier on product quality. From the announcement results, the Ministry of Finance has punished the parties in accordance with the law. Not only are fines and penalties included in the list of bad behavior records, but also administrative penalties that prohibit related suppliers from participating in government procurement activities for a certain period of time. For example, the Government Procurement Information Announcement No. 536: The Ministry of Finance found that Shanghai Ruige Software Co., Ltd. was limited in the supervision and inspection of the “Software Procurement Project for the Construction Project of the E-commerce System of the Panjin Campus of Dalian University of Technology”. Without obtaining the relevant certificate, the company responded to the requirements of the procurement documents by modifying the "Computer Software Copyright Registration Certificate" for other products. The Ministry of Finance believes that the above-mentioned acts belong to the situation of “providing false materials to obtain a transaction” as stipulated in Article 77 (1) (1) of the Government Procurement Law. Therefore, Shanghai Ruige was fined 9666 yuan and was included in the list of bad behavior records. Administrative penalties for banning government procurement activities were banned for one year.
Why is there still a "brave husband" dare to "steal forbidden fruit" under heavy punishment? Professor Cheng Xie of the School of Law of China University of Political Science and Law believes that firstly, the stimulus is based on economic interests; secondly, the ambiguity, principle, and even lag of the legal norms themselves have left some illegal suppliers' illegal participation in government procurement activities. space. For example, regarding "enclosing bids", Article 18, paragraph 1, of the "Implementation Regulations of the Government Procurement Law of the People's Republic of China" only stipulates: "The person in charge of the unit is the same person or different suppliers with direct holding and management relationships are not allowed to participate in the same contract Government procurement activities under this heading. "In practice, some family companies can easily circumvent this and conduct bidding. Regarding the setting of the consequences of violation of the law, the current law mainly stipulates the liability of legal persons, but in view of the increasingly convenient establishment of companies, the company has increasingly become an empty shell. Easily circumvented. Therefore, it is recommended to continuously refine and update the principled and ambiguous provisions of the Government Procurement Law and its implementing regulations through the guidance of the case and the actual situation of government procurement; strengthen the law enforcement inspection of government procurement activities, and The intensity of investigation and punishment of illegal acts. For the parties involved in violations of laws and regulations verified in practice, they shall be recorded and publicized through the credit information platform; promote the amendment of the law, and establish a dual-track responsibility system that places equal emphasis on personal responsibility and legal person responsibility.
Supplier complaints still need improvement
In recent years, suppliers' awareness of rights protection has been increasingly strengthened. Reasonable methods, legal procedures, and questions and complaints have helped promote a virtuous cycle of government procurement "blood." However, the number of truly effective queries and complaints is not large. Nearly a quarter of the information announcements issued by the Ministry of Finance in 2018 made it clear that the complaint was found to be lack of factual basis and rejected. Why are there such high percentages of unfounded complaints?
According to the Association, there are five main reasons for the complaint to be “unfounded”. The first is that the complaint itself does not meet the requirements. If the complaint has not been questioned or is beyond the scope of the challenge; the complaint exceeds the legal deadline. The second is that the complaint has no factual basis. In many cases, the unsuccessful suppliers questioned and complained about the winning results, arguing that the bid evaluation process was unfair, or other suppliers co-bid the bidding, but did not provide evidence or provided evidence that could not prove their claim for complaint. . There are also many questions based on official website data that question whether other suppliers' bidding products do not meet the technical requirements of the bidding documents. Third, the supplier's understanding of the law is not accurate enough. More typically, the relationship between the government procurement law and the bidding and tendering law and the application of law are often confused in practice. There is also often controversy over the evaluation of bidding methods. In practice, most projects adopt a comprehensive scoring method, and many suppliers have questioned on the grounds that their bid prices were the lowest and they did not win. Fourth, it is difficult to verify technical disputes. Experts in handling complaints and disputes are mainly legal experts, and many complaints and disputes are centered on highly technical disputes. Although the financial department can use some means to investigate, it is limited by various constraints such as manpower and material resources. It is difficult to verify and handle technical disputes. In this regard, in the investigation and processing, the judgment of the bid evaluation experts on technical issues is usually respected. When there is no substantial basis, the judgment of the technical experts will not be replaced by their own judgments. Fifth, questioning complaints is almost zero cost, which leads to repeated abuses of the right to complain in practice.
The proportion of “no evidence” complaints in government procurement is not low, which seriously affects the efficiency of handling complaints about government procurement. In this regard, the Association proposes to establish a special technical review mechanism to conduct substantive verification and processing of technical disputes in complaints. Introduce a complaint fee system and raise the threshold for complaints. Expenses for third-party inspection, testing, and appraisal involved in the handling of complaints can be advanced by the supplier that submitted the application, and the clear stipulations ultimately borne by the faulty party can, to a certain extent, improve the current situation of zero cost of complaints and restrict the supplier's behavior. Reduce the probability of malicious false complaints. Strengthen punishment of malicious complainants. For example, the Ministry of Finance of the People ’s Republic of China ’s Government Procurement Information Announcement No. 533 last year, the complainant was included in the list of bad behavior records by the Ministry of Finance because “the inspection report provided in the complaint is inconsistent with the archived materials of the inspection report issuing unit, Administrative penalties for prohibiting participation in government procurement activities within one year. Although the complaint was “with a door”, the complainant could not “willful behavior”, otherwise it would be easy to “ignite the fire”.
In addition, in several information announcements, the Ministry of Finance determined that the complaint was unfounded and rejected the complainant's complaint. However, during the processing, other issues of the project were found, and the purchaser was eventually ordered to rectify or the project was abandoned. It can be seen that during the supervision and inspection of the financial department, more attention is paid to the inspection of the entire project, not just the issues mentioned by the complainant, but also other issues found during the inspection. ( Reporter Yan Yan)