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Policies and regulations

Decree No. 94 of the Ministry of finance of the people's Republic of China

2019-02-18 21:23:00
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No. 94

 

The measures for questioning and complaining about government procurement has been deliberated and approved by the office meeting of the Minister of finance. It is hereby promulgated and shall come into force as of March 1, 2018.

Minister Xiao Jie

December 26, 2017

Query and complaint measures for government procurement

Chapter I General Provisions

Article 1 These measures are formulated in accordance with the government procurement law of the people's Republic of China, the regulations for the implementation of the government procurement law of the people's Republic of China and other relevant laws and regulations for the purpose of regulating the questioning and complaint behaviors of government procurement and protecting the legitimate rights and interests of the parties involved in government procurement activities.

Article 2 These measures are applicable to the raising and answering of queries and complaints in government procurement.

Article 3 suppliers of government procurement (hereinafter referred to as suppliers) shall adhere to the principle of abiding by laws and regulations and being honest and trustworthy when raising queries and complaints.

Article 4 the government procurement query reply and complaint handling shall adhere to the principles of law and regulations, equal rights and responsibilities, fairness and justice, simplicity and efficiency.

Article 5 the purchaser shall be responsible for the supplier's query and reply. If a purchaser entrusts a purchasing agency to purchase, the purchasing agency shall make a reply within the scope of authorization.

The financial departments of the people's governments at or above the county level (hereinafter referred to as the financial departments) are responsible for handling complaints from suppliers according to law.

Article 6 the complaints of suppliers shall be handled by the financial department at the corresponding level according to the budget level of the purchaser.

For cross regional joint procurement project, if the buyer's budget level is the same, the financial department agreed in advance in the procurement document shall be responsible for handling the complaint; otherwise, the financial department receiving the complaint first shall be responsible for handling the complaint; If the budget level of the purchaser is different, the financial department with the highest budget level shall be responsible for the handling.

Article 7 the purchasing agent and the purchasing agent shall state in the purchasing documents the ways, departments, telephone numbers and addresses of receiving the letter of query.

The financial department at or above the county level shall publicize the way of accepting the complaint, the contact Department, the contact telephone number and the mailing address in the media designated by the financial department at or above the provincial level.

Article 8 suppliers may entrust agents to question and complain. The power of attorney shall state the name of the agent, matters of agency, specific authority, time limit and relevant matters. If the supplier is a natural person, it shall be signed by the supplier himself; If the supplier is a legal person or any other organization, it shall be signed or sealed by the legal representative or the main person in charge and sealed with the official seal.

The supplier shall submit a letter of authorization and challenge to the agent.

Article 9 If a consortium participates in government procurement activities, the complaint shall be jointly raised by all the suppliers constituting the consortium.

The second chapter is the question and reply

Article 10 if a supplier considers that his rights and interests have been damaged by the procurement documents, procurement process, winning the bid or the transaction result, the supplier may, within 7 working days from the date when he knows or should have known that his rights and interests have been damaged, raise a query in writing to the purchaser and the purchasing agency.

The procurement document can require the supplier to raise one-time query for the same procurement procedure within the legal query period.

Article 11 the supplier who raises the question (hereinafter referred to as the query supplier) shall be the supplier participating in the procurement activities of the questioned project.

If the potential supplier has obtained the procurement document that can be questioned according to law, it can challenge the document. Any query on the procurement document shall be raised within 7 working days from the date of obtaining the procurement document or expiration of the announcement period of the procurement document.

Article 12 the supplier shall submit a letter of challenge and necessary supporting materials when raising a query. The letter of challenge shall include the following contents:

(1) the name, address, postcode, contact person and telephone number of the supplier;

(2) the name and serial number of the project in question;

(3) specific and clear questions and requests related to the questions;

(4) factual basis;

(5) necessary legal basis;

(6) the date of the challenge.

If the supplier is a natural person, it shall be signed by the supplier himself; If the supplier is a legal person or any other organization, it shall be signed or sealed by the legal representative, the main person in charge or its authorized representative, and the official seal shall be affixed.

Article 13 the purchaser and the purchasing agency shall not reject the query letter sent by the query supplier within the legal query period, and shall reply within 7 working days after receiving the query letter, and notify the query supplier and other relevant suppliers in writing.

Article 14 If a supplier questions the evaluation process, winning the bid or the result of the transaction, the purchaser and the purchasing agency may organize the original bid evaluation committee, competitive negotiation group, inquiry group or competitive consultation group to assist in answering the query.

Article 15 the reply shall include the following contents:

(1) questioning the name or name of the supplier;

(2) the date of receiving the letter of query, the name and number of the query project;

(3) the items to be questioned, the specific contents of the query reply, the factual basis and the legal basis;

(4) inform the supplier of the right to complain in accordance with the law;

(5) the name of the respondent;

(6) the date of reply to the query.

The content of the query reply shall not involve trade secrets.

Article 16 if the purchaser or the purchasing agency considers that the supplier's query is not established, or if it is established but does not affect the results of winning the bid or the transaction, it shall continue to carry out procurement activities; If it is considered that the supplier's query is tenable and affects or may affect the results of winning the bid or closing a deal, the case shall be handled according to the following circumstances:

(1) if the procurement activities can be continued by clarifying or modifying the procurement documents in accordance with the law, the procurement activities shall be continued after the procurement documents are clarified or modified; Otherwise, the purchasing activities should be started again after modifying the purchasing documents.

(2) when the qualified suppliers meet the legal quantity, the successful or successful suppliers can be determined separately from the qualified candidates for winning the bid or closing the deal, and the successful suppliers shall be determined in accordance with the law; Otherwise, procurement activities should be resumed.

If the query response leads to changes in the results of winning the bid or the transaction, the purchaser or the purchasing agency shall report the relevant information in writing to the financial department at the corresponding level.

Chapter III complaint filing

Article 17 If the supplier is not satisfied with the reply of the purchaser or the purchasing agency, or if the purchaser or the purchasing agency fails to reply within the prescribed time limit, the supplier may file a complaint to the financial department specified in Article 6 of these measures within 15 working days after the expiration of the reply period.

Article 18 when making a complaint, the complainants shall submit a letter of complaint and necessary supporting materials, and provide copies of the complaint letter according to the number of the complained purchasers, procurement agencies (hereinafter referred to as the complainants) and suppliers related to the complaints. The complaint letter shall include the following contents:

(1) the names, correspondence addresses, postal codes, contact persons and telephone numbers of the complainants and the complainants;

(2) explanation of questions and answers to questions and relevant supporting materials;

(3) specific and clear complaints and complaints related to complaints;

(4) factual basis;

(5) legal basis;

(6) the date of filing the complaint.

If the complainants are natural persons, they shall be signed by the complainants themselves; If the complainants are legal persons or other organizations, they shall be signed or sealed by the legal representative, the principal person in charge, or their authorized representatives, and sealed with the official seal.

Article 19 The complainants shall file complaints in accordance with the information content stipulated in the second paragraph of Article 7 of these measures and in the manner prescribed by them.

A complaint filed by a complainant shall meet the following conditions:

(1) the complaint has been questioned according to law before the complaint is filed;

(2) the contents of the complaint letter conform to the provisions of these measures;

(3) to file a complaint within the validity period of the complaint;

(4) the same complaint has not been handled by the financial department;

(5) other conditions prescribed by the Ministry of finance.

Article 20 the matters complained by the supplier shall not exceed the scope of the matter that has been questioned, except for the complaint based on the content of the query reply.

Chapter IV complaint handling

Article 21 after receiving the letter of complaint, the financial department shall examine it within 5 working days, and handle it according to the following circumstances after examination:

(1) if the contents of the complaint letter do not conform to the provisions of Article 18 of these measures, the complainants shall be informed in writing to make corrections within 5 working days after receiving the letter of complaint. The notice of supplementation and correction shall specify the items to be supplemented and corrected and the reasonable time limit for making corrections. If it fails to make corrections in accordance with the time limit for making corrections, or fails to meet the requirements after making corrections, it shall not be accepted.

(2) if the complaint does not meet the conditions stipulated in Article 19 of these measures, it shall inform the complainants in writing of the rejection within 3 working days and explain the reasons.

(3) if the complaint is not under the jurisdiction of the Department, it shall inform the complainant in writing within 3 working days to file a complaint with the competent department.

(4) if the complaint complies with the provisions of Article 18 and Article 19 of these measures, the complaint shall be accepted as of the date of receiving the complaint, and the complaint response notice and copy of the complaint letter shall be sent to the respondent and other parties related to the complaint within 8 working days after receiving the complaint.

Article 22 the respondent and other parties related to the complaint shall, within 5 working days from the date of receiving the complaint response notice and the copy of the complaint letter, make an explanation in writing to the financial department and submit relevant evidence, basis and other relevant materials.

In principle, the complaints shall be handled in writing by the financial department. When the financial department considers it necessary, it may conduct investigation and collect evidence or organize cross examination.

The financial department may, in accordance with the provisions of laws and regulations or the responsibilities and authorities, entrust relevant units or a third party to carry out investigation and evidence collection, inspection, detection and appraisal.

The parties concerned shall be informed of the presence of the cross examination and a written record of the cross examination shall be made. The written record of cross examination shall be signed and confirmed by the parties concerned.

Article 24 when the financial department conducts investigation and evidence collection in accordance with the law, the complainants, the complainants and the units and personnel related to the complaint shall truthfully report the situation and provide the relevant materials required by the financial department.

Article 25 If the complainants fail to provide relevant evidence, basis and other relevant materials for a complaint that should bear the burden of proof, it shall be deemed that the complaint is not established; If the respondent fails to submit relevant evidence, basis and other relevant materials in accordance with the requirements of the complaint response notice, it shall be deemed that he has given up the right to explain and bear the adverse consequences according to law.

Article 26 the financial department shall, within 30 working days from the date of receiving the complaint, make a decision on handling the complaint.

Article 27 If the financial department needs inspection, testing, appraisal, expert evaluation and correction of materials by the complainants, the time required for handling complaints shall not be included in the complaint handling period.

The time required as mentioned in the preceding paragraph refers to the date from which the financial department issues the relevant documents and the notice of supplement and correction to the relevant units, third parties and complainants to the date of receiving the relevant feedback documents or materials.

If the financial department conducts inspection, testing, appraisal and expert evaluation to relevant units and third parties, it shall inform the complainants of the time required.

Article 28 during the period of handling complaints, the financial department may, depending on the specific situation, notify the purchaser and the purchasing agency in writing to suspend the procurement activities, and the suspension time shall not exceed 30 days.

After receiving the notice of suspension of procurement activities, the purchaser and the procurement agency shall immediately suspend the procurement activities, and shall not carry out the procurement activities before the end of the statutory suspension period or the notice of resumption of procurement activities issued by the financial department.

Article 29 in the course of handling a complaint, the financial department shall reject the complaint in any of the following circumstances:

(1) after accepting the complaint, it is found that the complaint does not meet the legal acceptance conditions;

(2) there is no factual basis for the complaint and the complaint is not established;

(3) the complainants fabricate facts or provide false materials;

(4) the complainants obtain certification materials by illegal means. If there are obvious doubts about the legality of the evidence source, if the complainants can not prove the legality of the way of obtaining the evidence, it shall be deemed that the evidence materials have been obtained by illegal means.

Article 30 after the financial department accepts the complaint, if the complainant applies in writing to withdraw the complaint, the financial department shall terminate the complaint handling procedure and inform the relevant parties in writing.

Article 31 If the complaint filed by the complainants against the procurement documents is verified by the financial department, the complaint shall be confirmed as tenable. If the established complaints do not affect the procurement results, the procurement activities shall be continued; If the purchase result is affected or may be affected, the financial department shall deal with it according to the following circumstances:

(1) if the successful supplier or successful supplier is not determined, it shall be ordered to carry out procurement activities again.

(2) if a successful supplier has been determined but a government procurement contract has not been signed, the bid winning or transaction result shall be deemed invalid and the procurement shall be ordered to start again.

(3) if a government procurement contract has been signed but has not been fulfilled, the contract shall be cancelled and the procurement activities shall be ordered to resume.

(4) if the government procurement contract has been performed, causing losses to others, the relevant parties may file a lawsuit according to law, and the responsible person shall be liable for compensation.

Article 32 If the complaint filed by a complainant about the procurement process or procurement result is verified by the financial department, it shall confirm that the complaint is established. If the established complaints do not affect the procurement results, the procurement activities shall be continued; If the purchase result is affected or may be affected, the financial department shall deal with it according to the following circumstances:

(1) if the successful supplier or successful supplier is not determined, it shall be ordered to carry out procurement activities again.

(2) if a successful supplier has been determined but a government procurement contract has not been signed, the result of the bid winning or transaction shall be deemed invalid. If the qualified suppliers meet the legal quantity, the successful or successful suppliers can be determined from the qualified candidates for winning the bid or transaction, the purchaser shall be required to determine the successful or successful suppliers according to law; Otherwise, it is ordered to carry out procurement activities again.

(3) if a government procurement contract has been signed but not yet fulfilled, the contract shall be cancelled. If the qualified suppliers meet the legal quantity, the successful or successful suppliers can be determined from the qualified candidates for winning the bid or transaction, the purchaser shall be required to determine the successful or successful suppliers according to law; Otherwise, it is ordered to carry out procurement activities again.

(4) if the government procurement contract has been performed, causing losses to others, the relevant parties may file a lawsuit according to law, and the responsible person shall be liable for compensation.

If the complaint filed by the complainants on the behavior of bid abandonment is established, the financial department shall determine that the bid abandonment is invalid.

Article 33 when making a decision on handling a complaint, the financial department shall make a written decision on handling the complaint and affix its official seal. The complaint handling decision shall include the following contents:

(1) the names and correspondence addresses of the complainants and the complainants;

(2) the facts and relevant basis identified in the handling decision, and the specific handling decision and legal basis;

(3) the time limit for the party to file an application for reconsideration and the administrative right to file a reconsideration application and (3) the time limit for the party to file an application for reconsideration and to file an administrative lawsuit; and;

(4) the date on which the decision was made.

Article 34 the financial department shall serve the complaint handling decision on the complainants and the parties concerned with the complaint, and timely announce the complaint handling results on the government procurement information release media designated by the financial department at or above the provincial level.

The service of the decision on complaint handling shall be implemented with reference to the provisions on service in the Civil Procedure Law of the people's Republic of China.

Article 35 the financial department shall establish a file management system for handling complaints and cooperate with the supervision and inspection conducted by relevant departments according to law.

Chapter V Legal Liability

Article 36 in any of the following circumstances, a purchaser or a purchasing agency shall be ordered by the financial department to make corrections within a time limit; If the circumstances are serious, a warning shall be given, and the person in charge directly responsible and other persons directly responsible shall be punished by the administrative department or the relevant authorities, and a notice shall be given:

(1) reject the query letter issued by the supplier in the legal query period;

(2) failing to reply to the query or the reply is obviously inconsistent with the facts, and no reasonable explanation can be made;

(3) refusing to cooperate with the financial department in handling complaints.

Article 37 If a complainant complains three times or more within 12 months of the whole country and finds no evidence, the financial department shall list it in the list of records of bad behavior.

If a complainant has one of the following acts, it is a false or malicious complaint. The financial department shall list it in the list of records of bad behavior and prohibit him from participating in government procurement activities for one to three years:

(1) fabricating facts;

(2) providing false materials;

(3) obtaining certification materials by illegal means. If there are obvious doubts about the legality of the evidence source, if the complainants can not prove the legality of the way of obtaining the evidence, it shall be deemed that the evidence materials have been obtained by illegal means.

Article 38 the financial department and its staff members violate the provisions of these measures and commit other illegal and disciplinary acts such as abuse of power, dereliction of duty, favoritism and malpractice in performing their duty of handling complaints, According to the government procurement law of the people's Republic of China, the civil servant law of the people's Republic of China, the administrative supervision law of the people's Republic of China, and the regulations for the implementation of the government procurement law of the people's Republic of China, the corresponding responsibilities shall be investigated; If a crime is suspected, it shall be transferred to the judicial organ according to law.

Chapter VI supplementary provisions

Article 39 letters of query and complaint shall be in Chinese. Model letters of complaint and challenge are developed by the Ministry of finance.

Article 40 Where the relevant parties provide documentary evidence or audio-visual materials in foreign languages, a Chinese translation shall be attached, which shall be sealed by the translation agency or signed by the translator.

The evidence formed outside the territory of the people's Republic of China provided by the relevant parties to the financial department shall state the source, be certified by the notary organ of the country where the evidence is located, and certified by the embassy or consulate of the people's Republic of China in that country, or perform the certification procedures stipulated in the relevant treaties between the people's Republic of China and the country where the evidence is located.

The evidence provided by the relevant parties in the Hong Kong Special Administrative Region, Macao Special Administrative Region and Taiwan shall go through the relevant certification procedures.

Article 41 the financial department shall not charge any fees from the complainants and the complainants when handling complaints. However, the third-party inspection, testing, identification and other expenses incurred due to handling the complaint shall be paid by the supplier applying for the application in advance. After the decision of handling the complaint has made clear the responsibilities of both parties, the party who bears the responsibility shall bear the responsibility according to the principle of "the one who is at fault shall bear the responsibility"; If both parties have responsibilities, they shall be reasonably shared by both parties.

Article 42 the date of the beginning of the period stipulated in these Measures shall not be counted as the period. If the last day of the expiration of a period is a holiday, the first day after the holiday shall be the date of expiration. The period does not include the time in transit. If the documents of query and complaint are mailed before the expiration of the period, they shall not be considered as overdue.

"Above" and "below" as stipulated in these Measures shall include the original figure.

Article 43 the financial departments, purchasers, purchasing agencies and other relevant insiders shall keep confidential the state secrets, business secrets, personal privacy and information that is not disclosed according to law that are known in the process of answering questions and handling complaints.

Article 44 the provincial financial departments may formulate specific implementation measures in accordance with these measures.

Article 45 These Measures shall come into force as of March 1, 2018. The measures for handling complaints from suppliers of government procurement (No. 20 order of the Ministry of Finance) promulgated by the Ministry of Finance on August 11, 2004 shall be repealed at the same time.



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