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Notice on Promoting Fair Competition in Government Procurement and Optimizing the Business Environment

来源: 08:44 August 05, 2019Source : 】 【 Print

Notice on Promoting Fair Competition in Government Procurement and Optimizing the Business Environment
[Issuing Unit] 3 [Symbol] Treasury 〔2019〕 No. 38
[Date of promulgation] 2019-07-26 [Article category] 2099
[Date of implementation] 2019-09-01 [Regulation level] Regulatory documents of the Ministry of Finance
【Timeliness】 effective 【QR code】

Treasury 〔2019〕 No. 38

Notice on Promoting Fair Competition in Government Procurement and Optimizing the Business Environment

Treasury 〔2019〕 No. 38

The central budget units, the financial departments (bureaus) of provinces, autonomous regions, municipalities directly under the Central Government, and cities separately planned, and the Finance Bureau of the Xinjiang Production and Construction Corps:

In order to implement the relevant requirements of the "Deepening Government Procurement System Reform Plan" reviewed and approved by the Central Committee for Deep Reform and the "Notice of the General Office of the State Council on Focusing on Enterprises' Concerns and Further Promoting the Implementation of the Optimizing Business Environment Policy" (Guobanfa [2018] No. 104) To build a unified, open, and orderly government procurement market system, we hereby notify the following issues related to promoting fair competition in the government procurement field and optimizing the business environment:

I. Comprehensively clean up the regulations and practices that hinder fair competition in the field of government procurement

All regions and departments should strictly implement the requirements of relevant laws and regulations such as the "People's Republic of China Government Procurement Law" and guarantee the rights of various market entities to participate in government procurement activities on an equal basis. We must comprehensively clean up the regulations and practices that hinder fair competition in the field of government procurement, and focus on clearing and correcting the following issues:

(1) Differential or discriminatory treatment of suppliers based on supplier ownership, organizational form, or equity structure, unequal terms for private enterprises, and products and services provided by domestic and foreign-funded enterprises in China Discrimination;

(2) Except for the case of contracted supply, fixed-point procurement applicable to small-scale and sporadic procurement, and other circumstances stipulated by the Ministry of Finance, the shortlisted means to set up a candidate database, directory database, and qualification database as qualification conditions for participating in government procurement activities, hindering supply Enter the government procurement market;

(3) Require suppliers to perform unnecessary registration and registration before government procurement activities, or require the establishment of branches, or obstacles to enter the government procurement market in disguise;

(4) Setting or disguising thresholds such as the scale and duration of suppliers to restrict suppliers' participation in government procurement activities;

(5) Require suppliers to purchase designated software as conditions for participating in electronic government procurement activities;

(6) Failure to promptly, effectively and completely release or provide procurement project information in accordance with the law, preventing suppliers from participating in government procurement activities;

(7) It is mandatory for the purchaser to choose a procurement agency by random means such as grabbing or lottery, or by comparison and selection, and interfere with the purchaser's independent selection of the procurement agency;

(8) Setting up matters for examination, approval, filing, supervision, punishment, and charges without legal basis;

(9) Except for the circumstances stipulated in Article 68 of the "Administrative Measures on Tendering and Bidding of Government Procurement of Goods and Services", the purchaser is required to determine the successful bidder and supplier by random means;

(10) Other circumstances that hinder fair competition in violation of the relevant provisions of laws and regulations.

All regions and departments must promptly clean up the regulations and practices that hinder fair competition in the field of government procurement, and the results of the cleanup must be disclosed to the society in a timely manner and submitted to the Ministry of Finance before October 31, 2019.

Strict implementation of the fair competition review system

Various regions and departments shall formulate government procurement system methods involving market entities, strictly implement the fair competition review system, fully listen to the opinions of market entities and relevant industry associations and chambers of commerce, evaluate the impact on market competition, and prevent the problem of exclusion and restriction of market competition. Focus on reviewing whether the system and measures set up unreasonable and discriminatory access conditions to exclude potential suppliers from participating in government procurement activities, whether to set up administrative approvals that have no legal and regulatory basis or have a record of approval, and whether to give preferential treatment to specific suppliers in violation of regulations. Those that are considered to have no effect of eliminating or restricting competition may be promulgated and implemented; those that have effects of eliminating or restricting competition shall not be promulgated or adjusted to comply with relevant requirements, and shall not be promulgated without fair competition review.

During the implementation of government procurement-related systems and measures, their impact on the unified national market and fair competition should be evaluated regularly or in a timely manner. Those that hinder unified markets and fair competition should be revised or improved in a timely manner or abolished.

Third, strengthen the implementation management of government procurement

Optimize procedures for procurement activities. Where the legal representative of the supplier has issued a power of attorney, the legal representative of the supplier shall not be required to obtain the procurement documents in person or to participate in bid opening, negotiation, etc. at the scene. Suppliers shall not be required to provide information that purchasers and purchasing agencies can inquire through the Internet or related information systems. Except for the necessary originals, suppliers shall not be required to provide paper materials for materials that suppliers can provide online. Suppliers who submit various declaration letters and commitment letters in accordance with regulations shall not be required to provide relevant certification documents issued by relevant departments.

Refine the implementation requirements of procurement activities. If the purchaser is allowed to perform the contract by subcontracting, it shall specify the specific content, amount or proportion of subcontracting performance in the procurement documents. The format and form requirements of the bidder (response) documents by the purchaser and the procurement agency shall be simplified and clear, and shall not restrict and affect the supplier bidding (response) due to non-substantial format and form issues such as binding, paper, and document ordering. Where electronic procurement is realized, the purchaser and procurement agency shall provide the electronic procurement documents to the supplier free of charge; if electronic procurement has not been implemented for the time being, the purchaser and the procurement agency shall be encouraged to provide paper procurement documents to the supplier for free.

Regulate margin collection and refund. The purchaser and the procurement agency shall allow the supplier to choose to pay or submit the deposit in the form of non-cash, such as checks, money orders, promissory notes, and guarantees. If the bidding (response) security deposit is received, the deadline for the arrival (submission of guarantee) agreed by the purchaser and purchasing agency shall be the same as the bidding (response) deadline, and shall be returned to the supplier in a timely manner in accordance with regulations. Where a performance bond is received, the method, time, and conditions for non-return of the performance bond shall be stipulated in the purchase contract, and the liability for breach of the performance bond shall be specified. Purchasers and procurement agencies shall not collect security deposits without legal or regulatory basis.

Pay purchase funds in a timely manner. The government procurement contract shall stipulate the method, time and conditions for the payment of funds, and shall clearly specify the liability for breach of contract for overdue payments. For those who meet the payment conditions stipulated in the contract, the purchaser shall pay the funds to the supplier account agreed in the contract within 30 days after receiving the invoice, and shall not delay payment on the grounds of agency changes, personnel turnover, policy adjustments, etc. Obligations not specified in the contract are conditions for payment to the supplier.

Improve compensation and compensation mechanisms for suppliers' interests. The purchaser and the supplier shall clearly stipulate the parties' liability for breach of contract in the government procurement contract. Where the government procurement contract is changed, suspended or terminated due to reasons of the purchaser, the purchaser shall compensate or compensate for the losses suffered by the supplier in accordance with the contract.

Fourth, accelerate the promotion of electronic government procurement

Promote the electronic implementation of procurement projects. It is necessary to accelerate the improvement of the online transaction function of the electronic government procurement platform, realize the online release of procurement announcements, provide procurement documents, submit bidding (response) documents, and implement electronic bid opening and electronic review. Gradually establish the connection between the electronic government procurement platform and the financial business and the internal management of procurement units, and improve and optimize online processes such as contract signing, performance acceptance, credit evaluation, user feedback, submission of invoices, and payment of funds.

Accelerate the implementation of the "Internet + government procurement" action. Actively promote the construction of electronic government procurement platforms and electronic stores, establish and improve unified technical standards and data specifications, gradually achieve national connectivity, promote data sharing with public resource trading platforms, and improve the convenience of suppliers' participation in government procurement activities .

V. Further improving the transparency of government procurement

Strengthen the transparency of government procurement. Improve the service functions of the government procurement information release platform. Government procurement information publishing platforms such as the China Government Procurement Network and local branch networks should provide convenient and free online retrieval services to provide market entities with all legally disclosed government procurement information free of charge. Promote the opening of bids to the public and, on the premise of ensuring the normal order of bid opening, allow other people except bidders and their representatives to observe the bid opening activities.

Promote public procurement intentions. Purchasing intentions include main procurement items, procurement content and demand profile, budget amount, estimated procurement time, etc. In order for suppliers to understand procurement information in advance, regions and departments should create conditions to actively promote the disclosure of procurement intentions (except for confidential information). Since 2020, some central departments and localities have been selected to conduct public procurement intention pilots. On a trial basis, the procurement intentions of budget units at all levels were gradually realized.

Six, improve the government procurement challenge complaint and administrative ruling mechanism

Unblock suppliers' complaint channels. Research and establish a fast adjudication channel that is compatible with "Internet + government procurement" to provide suppliers with unified standards, efficient and convenient rights protection services. Questions and complaints raised by suppliers shall be promptly answered and handled by purchasers, procurement agencies and financial departments at all levels. To improve the internal control system of challenge response, conditional purchasers and centralized procurement agencies should separate the government procurement challenge response post from operation execution position, and further improve the government procurement challenge complaint handling mechanism.

Administrative penalties shall be implemented in accordance with the law and regulations. Financial departments at all levels in implementing administrative procurement penalties shall guarantee the parties' right to inform, to state, to plead, to hear, etc., and to ensure that the procedures are legal. Adhere to the principle of combining punishment and education, properly apply and distinguish between light punishment, mitigation of punishment and non-penalty. The administrative punishment should be equivalent to the facts, nature, circumstances and social harm of the illegal act.

All regions and departments should fully understand the importance of maintaining a fair market order for government procurement and optimizing the business environment for government procurement, strengthen organizational leadership, clarify job responsibilities, make careful arrangements, strengthen supervision and inspection, and ensure that all requirements are implemented.

This notice comes into effect on September 1, 2019.

Ministry of Finance

July 26, 2019