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172 political information announcements are warnings and more "mirrors"

来源: 中国政府采购报打印August 06, 2019 08:49 Source: China Government Procurement News [ Print ]

2019 年上半年财政部发布的政府采购信息公告作了统计分析,今年 1 -6 月财政部共发布政府采购信息公告 172 则,即中华人民共和国财政部政府采购信息公告第七百一十二号至第八百八十三号,这其中包括投诉处理决定 74 则、监督检查处理决定 28 则、投诉及监督检查处理决定 2 则、“ 2018 年政府采购代理机构监督检查” 42 则以及行政处罚决定 26 则。 A reporter from China Government Procurement News recently made a statistical analysis of the government procurement information announcements issued by the Ministry of Finance in the first half of 2019. From January to June this year , the Ministry of Finance issued 172 government procurement information announcements , namely Procurement Information Announcements No. 712 to 883, which include 74 complaint handling decisions , 28 supervision and inspection processing decisions, 2 complaints and supervision and inspection processing decisions , " 2018 Government Procurement Agents Institutional supervision and inspection " 42 and 26 administrative punishment decisions .

172 则信息公告中,大部分财政部都作出对相关方责令整改的处理,有近三分之一的公告涉及的投诉事项被认定为缺乏事实依据被驳回,有 15 则公告财政部作出警告的行政处罚,有 1 则公告财政部作出对相关方罚款行政处罚,有 9 则公告财政部作出对相关方列入不良行为记录名单、一年内禁止参加政府采购活动的行政处罚,此外,还有 1 则公告财政部作出对相关方罚款、列入不良行为记录名单、三年内禁止参加政府采购活动的行政处罚。 Of the 172 information announcements, most of the Ministry of Finance have dealt with the rectifications ordered by the relevant parties. Nearly one-third of the complaints involved in the announcements were found to be lack of factual basis and rejected, and 15 announcements were made by the Ministry of Finance. One of the warning administrative penalties was announced that the Ministry of Finance issued administrative penalties for fines of related parties, and nine announced that the Ministry of Finance issued administrative penalties for including relevant parties in the list of bad behavior records and forbidding participation in government procurement activities within one year. There was one announcement that the Ministry of Finance imposed administrative penalties on fines of related parties, inclusion in the list of bad behavior records, and banning participation in government procurement activities for three years.

“花样多” Differential or Discriminatory Treatment of Suppliers

Looking at the government procurement information announcement issued by the Ministry of Finance in the first half of the year, the issues involved included procurement documents, procurement process, winning bid results, and information announcements. “投标文件中提供的相应材料不满足招标文件中的要求”“招标文件存在评审标准分值设置未与评审因素的量化指标相对应”以及“招标文件中存在以不合理的条件对供应商实行差别待遇或者歧视待遇”占比最多,尤其是招标文件中存在五花八门的“门槛”,对供应商实行差别或歧视待遇,如将供应商赠送内容作为评审因素、采购文件规定被处以三万元以上罚款的供应商不得参加政府采购活动、采购文件将特定金额的合同业绩作为评审因素以及采购文件将投标产品质量和服务没有不良记录作为投标人资格条件的情形等。 Among them, the announcements related to procurement documents include "the corresponding materials provided in the bidding documents do not meet the requirements in the bidding documents", "the existence of evaluation criteria for the bidding documents does not correspond to the quantitative indicators of the evaluation factors", and "the existence of Unreasonable conditions have the largest proportion of "differential or discriminatory treatment" against suppliers, especially the "threshold" in the bidding documents, which discriminates or discriminates against suppliers, such as the supplier's gift content as a review factor, procurement The document stipulates that suppliers who have been fined more than 30,000 yuan shall not participate in government procurement activities, procurement documents using a certain amount of contract performance as a review factor, and procurement documents that have no bad records of bidding product quality and services as qualifications for bidders.

Regarding issues such as the supplier's gift content as a review factor and suppliers who have been fined more than 30,000 yuan from participating in government procurement activities, Professor Cheng Xie of the China University of Political Science and Law stated that Article 22, paragraph 2 of the Government Procurement Law provides: The purchaser may stipulate specific conditions for the supplier according to the special requirements of the procurement project, but shall not impose differential or discriminatory treatment on the supplier on unreasonable conditions. This provision on the one hand gives the purchaser autonomy in purchasing, and can set qualification conditions and review factors independently according to the special requirements of the procurement project, but on the other hand, it also limits this autonomy of the purchaser, that is, no Differential or discriminatory treatment of suppliers on unreasonable conditions. There are two main criteria for judging whether the qualifications and evaluation factors determined by the purchaser constitute a difference or discriminatory treatment: Is it closely related to the procurement needs? Does it constitute equal treatment for all suppliers? “根据采购项目的特殊需要”来设定评审因素。 Supplier gift content is used as a review factor. On the one hand, generally, gift content is not directly related to procurement requirements. Using gift content as a review factor means that the purchaser uses factors that are not directly related to purchase requirements as a review factor. In accordance with the first criterion mentioned above, the purchaser did not set the review factors "according to the special needs of the procurement project". On the other hand, as the gift content itself is difficult to quantify, using it as a review factor may constitute different treatment for different suppliers. From these two perspectives, using the supplier's gift content as a review factor violates the provisions of Article 22, paragraph 2 of the Government Procurement Law, which constitutes unreasonable conditions for differential or discriminatory treatment of suppliers. Suppliers who have been fined more than 30,000 yuan are not allowed to participate in government procurement activities, mainly related to the understanding and application of Article 22, paragraph 5, of the Government Procurement Law. The limitation is mainly that the supplier had no record of major violations during the first three years of participating in government procurement activities. Article 19 of the Implementing Regulations of the Government Procurement Law further stipulates that the records of major violations mentioned in Article 22, Paragraph 1, Item 5 of the Government Procurement Law refer to suppliers who have been penalized or ordered to suspend production, business, or licenses for illegal operations. Or administrative penalties such as licenses and large fines. With regard to the amount of fines, the application of the "hearing" of the Administrative Penalty Law was borrowed. In practice, the specific amount of "a larger amount of fine" is mainly determined according to the hearing standards of various localities and departments. "Fine fines of more than 30,000 yuan" sometimes do not meet the criteria of "large fines" determined by local or competent authorities, and therefore do not constitute a major illegal record. The bidding documents stipulated that "suppliers who have been fined more than 30,000 yuan shall not participate in government procurement activities", which raises the "threshold" for participating in government procurement activities and excludes those who have been fined more than 30,000 yuan but do not yet constitute "major violations of law." Suppliers violate the provisions of Article 22 (1) of the Government Procurement Law, which constitutes differential or discriminatory treatment of suppliers on unreasonable conditions.

"Contract performance of a certain amount cannot be used as a qualification for a supplier, nor can it be a substantive condition for evaluation." Meng Yuan, a lawyer of Hankun Law Firm, believes that although a contract of a certain amount is not directly targeted at the size of an enterprise However, because the contract amount is related to operating income, its essence is to restrict SMEs through operating income. An enterprise with no performance (such as new registration) or not participating in a project with a large contract amount does not mean that the company cannot complete the current bidding project. Using a certain amount of contract performance as a review factor violates Article 22 of the Government Procurement Law. "Purchasers can stipulate specific conditions for suppliers based on the special requirements of procurement projects, but they must not discriminate against suppliers on unreasonable conditions. Or discriminatory treatment, "and Article 3 of the Interim Measures for Promoting the Development of Small and Medium-sized Enterprises by Government Procurement," No unit or individual shall obstruct and restrict the free access of SMEs to the government procurement market in the region and industry, and government procurement activities shall not use registered capital. "Different or discriminatory treatment of small and medium-sized enterprises shall be imposed on the scale conditions of suppliers such as total assets, operating income, employees, profits, tax amount, etc.". 号令”)第十七条规定:“采购人、采购代理机构不得将除进口货物以外的生产厂家授权、承诺、证明、背书等作为资格要求,对投标人实行差别待遇或者歧视待遇”,而“投标产品质量和服务没有不良记录”属于承诺、证明一类,因此不得作为资格要求。 In addition, Meng Yuan stated that Article 17 of the "Administrative Measures on Tendering and Bidding of Government Procurement of Goods and Services" (hereinafter referred to as " Order No. 87 ") stipulates that: "Purchasers and procurement agencies shall not authorize and promise manufacturers other than imported goods. , Qualifications, endorsements, etc. as qualification requirements, to implement differential or discriminatory treatment for bidders ", and" no bad record of bidding product quality and service "belong to the category of commitments and certifications, and therefore shall not be used as qualification requirements.

“花样“繁多的差别或歧视待遇,财政部按照政府采购法第七十一条、七十五条均对相关当事人给予相应处罚。 From the results of the information announcement , the Ministry of Finance will punish the relevant parties in accordance with Articles 71 and 75 of the Government Procurement Law for the numerous “different” or discriminatory treatments of suppliers by suppliers or purchasers .

Political review and evaluation specifications need to be strengthened

“三公”原则最为重要的环节,也是直接决定谁能成为中标供应商的关键点。 In government procurement, expert review is the most important link to achieve the "three public" principle of fairness, openness, and impartiality , and it is also a key point in directly determining who can win the bid. In the political information announcement in the first half of this year, the problems involved in the procurement process were mainly concentrated in the review process. 号令第四十五条第一款第七项“采购人或者采购代理机构负责组织评标工作,具体职责包括维护评标秩序,监督评标委员会依照招标文件规定的评标程序、方法和标准进行独立评审,及时制止和纠正采购人代表、评审专家的倾向性言论或者违法违规行为等”的规定。 For example, the management of the evaluation site is not standardized. In the "Qilu Hospital (Qingdao) Medical Equipment Procurement Project of Shandong University", Haiyi Hengan Project Management Co., Ltd. only commissioned a law firm staff to witness at the evaluation site, in violation of 87 Article 45, Paragraph 1 of Article 45, "Purchasers or procurement agencies are responsible for organizing bid evaluation, and their specific duties include maintaining the order of bid evaluation, and supervising the bid evaluation committee in accordance with the bid evaluation procedures, methods and standards. Independent review, timely stopping and correcting the propensity speeches or illegal acts of purchaser representatives and review experts ". In addition, the information announcement also revealed problems such as the incomplete content of the review report, the audio and video of the review not being properly stored, and the members of the bid evaluation committee scoring, modifying, and not signing.

Zhou Guangzhi, the government procurement office of the Tianjin Municipal Finance Bureau, believes that there are two main reasons for problems such as irregular management of the review site: First, the agency organization is not in place. On the one hand, some agencies have not fulfilled their organizational obligations on the grounds of non-intervention in reviewing and avoiding suspicions, such as checking the integrity of the data and checking whether the calculation results of the scores are correct, etc., leading to some problems that can be solved or avoided on the spot. And make up for the mistakes. On the other hand, the agency is neglected in the construction of hardware facilities, and the awareness of retaining evidence is not strong, such as the lack of monitoring equipment or unskilled operation, resulting in failure to record or record the entire process or fail to keep it intact. Second, the policy level of review experts is not high. Most experts believe that as long as they are responsible for the technical issues or the results of the review, they do not understand the requirements of the relevant legal system on the review process, leading to problems in the review process and details, such as signature confirmation and independent review. In response to the above issues, Zhou Guangzhi suggested that the first is to implement the agency's responsibility. Strengthen the agency to strengthen the construction of hardware facilities and staffing in accordance with relevant requirements to ensure the basic conditions for organizing procurement activities. Strengthen the organization and policy guidance of the review process, not just organize reviewers together and let everything go. The second is to strengthen policy training for review experts. “政府采购”和“评审”,自觉按照法定程序和要求进行评审,确保不出现低级错误和“硬伤”。 As an expert in government procurement review, you must not only understand technology and business, you also need to understand "government procurement" and "review", and consciously review in accordance with legal procedures and requirements to ensure that no low-level errors and "hard wounds" occur. The third is to strengthen the responsibilities of purchasers, agencies and review experts in questioning complaints. 次以上不成立的,要列入不良行为记录名单。 At present, if the supplier fails to make more than three complaints within a certain period of time, it shall be included in the list of bad behavior records. However, there is no such provision for purchasers, agencies and experts, and it is recommended that the liability provisions in this regard be strengthened. In addition, for major projects, specific categories of projects, such as safety related to the public interest, food and medicine, etc., it is necessary to implement a lifelong system of expert responsibility.

"Provide false materials to win the bid" Illegal laws and regulations still "flooded"

“明知故犯”。 Article 3 of the Government Procurement Law stipulates that China's government procurement activities follow the principles of openness, transparency, fair competition, fairness, and good faith, and relevant government procurement laws and regulations have clearly defined and strictly prohibited non-honest behavior, but in practice, there are still Many suppliers still choose to "know the wrongdoer".

In the first half of this year, the main issue related to the results of the information announcement issued by the Ministry of Finance was to provide false materials to win the bid. “中山大学孙逸仙纪念医院采购医疗设备招标项目第1 包”,南昌禄发公司提供的血液透析设备铭牌显示的医疗器械注册号与投标文件中的不一致。 Suspected to provide invalid or false certification materials and other illegal acts, such as the information package No. 837 "Sun Yat-sen Sun Memorial Hospital Procurement Medical Equipment Bidding Project Package 1 ", Nanchang Lufa company nameplate The medical device registration number shown does not match the bidding document. After consulting the official website of the State Drug Administration, the medical device registration number in Nanchang Lufa's bidding documents did not exist. Judging from the announcement results, the Ministry of Finance not only imposed fines on the parties in accordance with the law, but also imposed administrative penalties that barred relevant suppliers from participating in government procurement activities within a certain period of time.

“重灾区”。 In addition, failing to announce government procurement contracts in accordance with regulations is also a “severe disaster area” for illegal acts by agencies and procurement units in the first half of the year . Such issues as incomplete government procurement information announcements, overdue transaction announcements, inconsistencies between the release date of the successful bid (transaction) announcement and the issuance date of the successful bid (transaction) notice, and failure to announce the government procurement contract in accordance with regulations.

2004 年就印发了《政府采购信息公告管理办法》(以下简称“ 19 号令”)对发布政府采购信息公告行为进行了明确规定。 Xu Huandong, a professor at the School of Government Management, Central University of Finance and Economics, said that in order to regulate government procurement information announcements, the Ministry of Finance issued the "Administrative Measures on Government Procurement Information Announcements" (hereinafter referred to as " Order 19 ") in 2004 to conduct government procurement information announcements. Clearly stated. Article 20 stipulates that "the bidders and bidders shall be responsible for making announcements on the designated publication media of government procurement information by the purchaser or the procurement agency entrusted by the purchaser." However, the designated media only has the right to publish the information and not the right to review. Therefore, there will be many irregularities in the information announcements issued: for example, the information release time is not standardized. In some places, announcements will be made today and bids will be opened tomorrow. Xu Huandong said that the shorter the time for publishing information and the narrower the scope, the fewer suppliers will participate in government procurement, and even the suppliers most likely to win the bid will lose their bidding opportunities due to failure to obtain procurement information in a timely manner. It has created a greater chance of winning the bidding for "the person of interest", which is often referred to as "hidden box operation". In addition, in some places, there are incomplete government procurement information announcements. For example, the procurement documents or service information on the bidding documents are too general. For specific procurement details, please refer to the bidding documents, and then sell the bidding documents at high prices. In response to the above problems, Xu Huandong believes that whether the government procurement information is released is related to the core issue of whether government procurement activities are standardized. On the one hand, the purchaser or the agency entrusted by it must do its part to raise awareness and pay attention to the quality of the content and format of the announcement. Where the purchaser entrusts the agency to issue an announcement, the announcement drafted by the agency shall be reviewed and bear corresponding responsibilities. Eliminate typos, incomplete content, and traps and other errors from the source of compiling procurement information, reduce supplier inquiries, questions and complaints, improve procurement quality and efficiency, and increase the credibility of government procurement. On the other hand, suppliers should also pay attention to the government procurement information disclosure of designated media. For institutions that fail to fulfill their obligation to disclose government procurement information and designated media to conduct activities that are contrary to the purpose of public welfare, report or complain to the financial department in a timely manner to safeguard their legitimate rights and interests. 19 号令进行了修订,并形成《政府采购公告和公示信息发布管理办法(征求意见稿)》,并向社会公开征求意见。 In addition, Xu Huandong also pointed out that at the beginning of this year, the Ministry of Finance revised Order No. 19 and formed the "Administrative Measures on Government Procurement Announcement and Public Information Release (Consultation Draft)", and publicly solicited opinions. It states that "the designated media shall take necessary measures to verify the identity of the government procurement announcement and public information publisher, and shall not delete or modify the information content without authorization. If the designated media finds that the government procurement announcement and public information content violates relevant laws and regulations, The right to refuse to release. "The" Draft for Soliciting Opinions "stipulates that the designated publication media of government procurement information is given as the" gatekeeper "of the information announcement. Not only those who publish the information, but also the content of the information. In the past, the era of information dissemination of purchasers or agencies will end, which is extremely important to improve the transparency of procurement information disclosure. ( Hyunyan)

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