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Clarify the boundaries of inquiry and questioning

来源: 中国政府采购报打印09:32, December 27, 2019 Source: China Government Procurement News [ Print ]

■ Zhang Zhijun

Case background

In a government procurement service project, procurement was implemented through competitive negotiation. After legal procedures, Company A was identified as a contract supplier. After the conclusion of the transaction announcement, the unsettled supplier B sent a written letter to the procurement agency to consult the evaluation experts on the specific scoring of each evaluation factor of the bidding documents.

Purchasing agency believes that although the written letter of company B is marked as a question letter in its title, from the point of view of the content, it only wants to know the company's evaluation score, and has not made relevant claims or claims, nor provided necessary information. The facts and legal basis should belong to the inquiry letter stipulated in the "People's Republic of China Government Procurement Law" (hereinafter referred to as the "Government Procurement Law"). As the inquiry involved confidential content, the procurement agency decided not to reply after obtaining the consent of the purchaser.

Afterwards, Company B filed a complaint with the financial department, stating that the purchaser and the procurement agency did not respond to the supplier's query, and demanded that the purchaser and the procurement agency be investigated for their corresponding legal responsibilities in accordance with the law.

Case analysis

The focus of the dispute in this case was whether the letter submitted by Company B was an inquiry letter or a challenge letter. “询问函”和“质疑函”混用的情况。 In practice, because the supplier does not understand the different laws and regulations regarding challenge and inquiry, it is often easy to mix "inquiry letter" and "question letter".

“供应商对政府采购活动事项有疑问的,可以向采购人提出询问……”其第五十二条指出:“供应商认为采购文件、采购过程和中标、成交结果使自己的权益受到损害的,可以在知道或者应知其权益受到损害之日起七个工作日内,以书面形式向采购人提出质疑。”从上述两个法条的规定来看,询问的目的是为了解决疑惑,而质疑的目的是为了维权。 Article 51 of the "Government Procurement Law" stipulates: "If a supplier has questions about government procurement activities, it may ask the buyer ..." Article 52 states: "The supplier considers the procurement documents and procurement process If the bid and the result of the transaction cause damage to their rights and interests, they may challenge the purchaser in writing within seven working days from the date when they knew or should know that their rights and interests were damaged. "From the provisions of the above two laws It seems that the purpose of inquiry is to resolve doubts, and the purpose of questioning is to defend rights.

Therefore, the difference between a letter submitted by a supplier in writing and whether it is a letter of inquiry or a question is whether the content of the letter asks related matters or claims. If the written letter submitted by the supplier is only for consulting certain matters, understanding the relevant situation, and no claims and claims are made, the letter can be considered as an inquiry letter; if the letter believes that its own legitimate rights and interests have been harmed and requires procurement If the person corrects the statement, the letter should be a letter of challenge. Under normal circumstances, the question letter often contains the content of the claim of the supplier, while the inquiry letter does not have the content of the claim.

In addition to the aforementioned main differences, other similarities and differences between the inquiry letter and the challenge letter are:

The first is that the initiators are different. According to the provisions of the "Government Procurement Law", as long as there are questions about government procurement activities, all suppliers can ask the purchaser or the agency; and the subject who has the right to challenge is a special subject, and only believes that their rights are subject to Suppliers can only be challenged if they are damaged.

A 供应商的权益受到损害,则只有 A 供应商自己才有资格提出质疑,其他供应商则不享有就该事件提出质疑的权利。 For example, during the government procurement process, a buyer ’s behavior caused damage to Supplier A ’s rights and interests. Only Supplier A was qualified to challenge it, and other suppliers did not have the right to challenge the incident. . If other suppliers put forward a dispute resolution request out of consideration of maintaining public order and good customs or social public interests, they can only take other methods such as reporting and accusation to require the purchaser to correct the illegal behavior.

The second is that the response time is different. “采购人或者采购代理机构应当在3 个工作日内对供应商依法提出的询问作出答复。”《政府采购法》第五十三条明确:“采购人应当在收到供应商的书面质疑后七个工作日内作出答复……” Article 52 of the "Implementation Regulations of the Government Procurement Law of the People's Republic of China" stipulates: "Purchasers or procurement agencies shall respond to inquiries made by suppliers in accordance with the law within 3 working days." The three articles are clear: "The purchaser shall respond within seven working days after receiving the written query from the supplier ..."

From the content of the letter submitted by Company B, the letter should be an inquiry letter, and the purchase agency's judgment on the nature of the letter was correct. It is important to point out that although the content of Company B's inquiry is a confidential matter, the procurement agency should also respond to the inquiry within the legal time limit, clearly telling him that the content of the inquiry is a confidential matter and shall not be provided according to law.

The third is different. According to Articles 51 and 52 of the "Government Procurement Law", the matters inquired can be various related matters in government procurement activities, and the questions questioned are limited to procurement documents, procurement processes and the results of successful bids .

Finally, in this case, the government procurement supervision department issued two opinions.

The first opinion is that complaints should be accepted. “关于某某项目的质疑函”,该行为已构成质疑。 The main reason is that: Company B submitted a “question letter about a certain project” to the procurement agency within the prescribed time limit , and this behavior has constituted a question. Company B's complaint behavior complies with legal procedures, and it shall accept the complaint according to law.

The second opinion is that complaints should not be accepted. The main reason is: Company B sent a letter to the procurement agency just to understand the relevant situation, and did not put forward its own claims and claims. The nature of the letter was an inquiry letter, not a challenge letter. Since Company B lodged a complaint without question, the complaint against Company B should be rejected and notified in writing.

In addition, due to the illegal behavior of the purchaser and procurement agency in this case that did not handle the inquiry as required, the financial department should also deal with it accordingly.

Legal link

94 号)第十九条第二款规定:“投诉人提起投诉应当符合下列条件:(一)提起投诉前已依法进行质疑……” Paragraph 2 of Article 19 of the "Measures for Questioning and Complaints about Government Procurement" (Order of the Ministry of Finance No. 94 ) stipulates that: "The complainant shall meet the following requirements when submitting a complaint: (1) before the complaint has been challenged according to law ...

94 号)第二十一条规定:“财政部门收到投诉书后,应当在 5 个工作日内进行审查,审查后按照下列情况处理:……(二)投诉不符合本办法第十九条规定条件的,应当在 3 个工作日内书面告知投诉人不予受理,并说明理由。” Article 21 of the Measures on Government Procurement Questions and Complaints (Order of the Ministry of Finance No. 94 ) states: "After receiving the complaint, the financial department shall review it within 5 working days, and after the review shall handle it in accordance with the following circumstances: ... (2) If the complaint does not meet the conditions stipulated in Article 19 of these Measures, the complainant shall be notified in writing within 3 working days and the reasons shall be stated. "

(Author: Shanghai Belden Project Management Consulting Co., Ltd.)