The hottest guiding case No. 25 research instrumen

Guiding case No. 25 - L Institute research instrument and equipment purchase project complaint case

[exclusive release · government procurement administrative ruling guiding case]

guiding case No. 25

L Institute research instrument and equipment purchase project complaint case

keywords

obtaining bidding documents/procurement demand management/supplier organization form/differential discrimination treatment

case points

purchasers The agency sets review conditions in the process of suppliers' obtaining bidding documents, which constitutes differential or discriminatory treatment of suppliers with unreasonable conditions

if the purchaser or agency stipulates in the bidding documents that the bidding supplier should be the manufacturer or agent of the purchased products according to the actual needs and characteristics of the procurement project, it does not belong to the situation of "illegally limiting the organizational form of suppliers" stipulated in Article 20 of the regulations for the implementation of the government procurement law of the people's Republic of China

relevant basis

Article 22 of the government procurement law of the people's Republic of China

Article 20 of the regulations for the implementation of the government procurement law of the people's Republic of China

measures for the Administration of bidding for government procurement of goods and services (Order No. 87 of the Ministry of Finance), Article 17, Article 44

measures for government procurement queries and complaints (Order No. 94 of the Ministry of Finance), Article 29 Article 31

basic case

the purchaser l Research Institute entrusts the agency s company to conduct public bidding for the "l Research Institute research instrument and equipment purchase project" (hereinafter referred to as the project). On June 4, 2019, the agency s company issued a bidding announcement. On June 20, supplier C raised doubts. On June 26, the bid opening and evaluation of this project, the agency s company replied to the query and issued the announcement of the first package rejection. On June 28, the agency s company issued the announcement of the second bidding of the first package. On July 1, due to the existence of these problems, China's plastic machinery industry cannot meet foreign plastic machinery levelers as soon as possible, so the content article I excerpted is published for professionals, and the company issued the announcement of winning the second and third guarantees. On July 19, the first package of the project was opened and evaluated. On July 23, the agency s company issued the announcement of winning the first package

on July 23, supplier C filed a complaint with the Ministry of finance. The complaint items are: 1 The bidding announcement stipulates that "the bidder must be the manufacturer or agent of the products invested", depriving the distributor of the legal right to participate in government procurement, which belongs to the situation of "illegally limiting the organizational form of suppliers" stipulated in Item (7) of Article 20 of the regulations for the implementation of the government procurement law of the people's Republic of China. 2. The bidding announcement stipulates that suppliers need to provide copies of business licenses and other documents when purchasing bidding documents, which violates the provisions of Article 44 of the measures for the administration of bidding for government procurement of goods and services (Order No. 87 of the Ministry of Finance) on qualification review after bid opening, and the agency s company repeated the qualification review

the Ministry of Finance accepted the case according to law and obtained evidence from the relevant parties

the purchaser l Institute and agency s company said: 1 The qualification requirements of the bidding announcement stipulates that "the bidder must be the manufacturer or agent of the products invested, and the agent bidding must provide the special authorization of the manufacturer (if the products invested are imported products)". This provision is a requirement made on the premise that the products invested are imported products, and the content to be provided is the authorization of imported products, without any restriction on the organizational form of the supplier. 2. The bidding announcement stipulates that when purchasing bidding documents, suppliers need to provide "copy of the bidder's business license (copy with official seal)" "power of attorney of the legal representative (original) and the authorized person's ID card (copy with official seal) or unit introduction letter (original)". The above content is to confirm that the registration matters are the true meaning of the supplier, and does not involve qualification examination. 3. The government procurement contract has been signed and the procurement funds have been paid for this project

after investigation, in the bidding announcement, "II. The qualification of the bidder, so few users require widening requirements" shows, "3) the bidder must be the manufacturer or agent of the bidding products, and the agent bidding must provide the special authorization of the manufacturer (if the bidding products are imported products)" "9) this purchase accepts the bidding of imported products". "VII. Other supplementary matters" shows, "1. When purchasing the bidding documents, the following documents need to be provided: 1.1 copy of the bidder's business license (copy with official seal); 1.2 power of attorney of the legal representative (original) and the authorized person's ID card (copy plus 5 steps of impact testing machine to teach you how to use the official seal) or unit introduction letter (original)"

reason for handling

about complaint 1, the purchaser can specify the specific conditions of the supplier according to the special requirements of the procurement project. This project requires the bidder to be the manufacturer or agent of the bidding products, which does not constitute differential treatment or discrimination against suppliers under unreasonable conditions. In addition, the "organizational form" specified in Item (7) of Article 20 of the regulations for the implementation of the government procurement law of the people's Republic of China includes legal persons, other organizations and natural persons, and restricts manufacturers or agents from the situation of "illegally restricting the organizational form of suppliers" specified in this article

as for complaint 2, this project is a public bidding project. The relevant laws and regulations on government procurement do not restrict suppliers' access to bidding documents, and do not give purchasers and agencies the right and obligation to review suppliers in the process of obtaining bidding documents, that is, all potential suppliers can obtain bidding documents. The project requires suppliers to provide copies of business licenses and other documents when obtaining bidding documents, which has no legal basis, and the relevant practices are inconsistent with the reform direction of optimizing the business environment

handling results

according to the provisions of item (2) of Article 29 of the measures for questioning and complaining about government procurement (Order No. 94 of the Ministry of Finance), complaint 1 lacks factual basis; According to Article 31, complaint 2 is established

according to the provisions of item (4) of Article 31 of the measures for questioning and complaining about government procurement (Order No. 94 of the Ministry of Finance), if the government procurement contract has been performed and caused losses to others, the relevant parties may file a lawsuit in accordance with the law and the person shall bear the compensation

order the agency s company to set review conditions for suppliers to obtain bidding documents within a time limit

the relevant parties have not applied for administrative reconsideration or filed an administrative lawsuit on the handling decision within the statutory time limit

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