[Letter on the Reply to Proposal No.2010 (Finance and Taxation No.220) of the Fourth Session of the 13th National Committee of the Chinese People’s Political Consultative Conference]
On the Fourth Session of the 13th National Committee of the Chinese People’s Political Consultative Conference
Letter of Reply to Proposal No.2010 (Finance and Taxation No.220)
Your proposal on standardizing the bidding behavior of government procurement centers and government-funded construction projects has been received. In consultation with the Ministry of Finance, our reply is as follows.
Your comments and suggestions have strong pertinence and important reference value, and the relevant situation is reported as follows.
A, about the cancellation of the government procurement center and other units of the bidding agency qualification.
In the field of bidding, the first paragraph of Article 12 of the Bidding Law stipulates that the tenderer has the right to choose a bidding agency and entrust it to handle the bidding matters. No unit or individual may designate a tendering agency for the tenderee in any way. Paragraph 2 of Article 14 stipulates that there shall be no subordinate relationship or other interest relationship between the tendering agency and the administrative organ or other state organs. State-owned enterprises such as central enterprises and local state-owned enterprises, as tenderers, have the right to choose their own bidding agencies according to law. Some state-owned enterprises have subordinate bidding agencies, so it is not appropriate to force them to choose the social third-party bidding agency in the territory (project location) of the construction project.
In the field of government procurement, China’s government procurement adopts the mode of combining centralized procurement with decentralized procurement. According to Article 16 of the Government Procurement Law, centralized procurement agencies are procurement agencies. The people’s governments at or above the level of cities and autonomous prefectures with districts shall set up centralized procurement institutions according to the needs of organizing centralized procurement of government procurement projects at the corresponding level. Centralized procurement institutions are non-profit legal persons, and handle procurement matters according to the entrustment of purchasers. Over the years, centralized procurement institutions have played an active role in giving full play to the scale effect and specialization advantages of procurement, and it is not practical to completely cancel the government procurement center. With the promotion of the integration of public resource trading platforms, many local public resource trading centers have assumed the functions of centralized procurement agencies in the process of local government institutional reform, and it is not practical to cancel the procurement agency function at present.
Second, on promoting electronic bidding and procurement
In recent years, our Committee and relevant departments in the State Council have actively promoted the electronization of the whole bidding process. Formulate and promulgate the Measures for Electronic Bidding (Order No.20 of 2013 issued by 8 departments including the National Development and Reform Commission), the Notice on Printing and Distributing the Bidding and Purchasing Action Plan of internet plus (2017-2019) (No.357 of the Development and Reform Law [2017]) and the Notice on Actively Responding to the Epidemic and Innovating the Bidding Work to Ensure the Stable Operation of the Economy (Development and Reform) We will further promote the electronization of the whole bidding process, and realize online operation in such links as issuing bidding announcements, downloading bidding documents, submitting bidding documents, opening bids, evaluating bids, and publicizing winning bids. Innovate electronic administrative supervision, realize dynamic recording, trace tracing and transparent disclosure of information in the whole transaction process, and further improve the pertinence, convenience and standardization of administrative supervision. Since 2018, our Committee and relevant departments have accelerated the revision of the Bidding Law, and the Bidding Law (Revised Draft for Review) (hereinafter referred to as the "Draft") has been reported to the State Council and included in the 2021 Legislative Work Plan of the State Council. The "Draft" further clarifies that except for special circumstances such as national security and state secrets, projects that must be subject to tender according to law should adopt electronic bidding.
The Ministry of Finance actively promotes the work related to electronic government procurement, and relies on information technology and big data technology to track and dynamically supervise the key links of government procurement, effectively regulating procurement behavior. At present, we are studying and formulating policy documents related to the "internet plus government procurement" action, which will further improve the top-level design of government procurement informatization, promote the deep integration of government procurement and the Internet, and improve the efficiency, transparency and regulatory effectiveness of government procurement.
Three, about standardizing the bidding procurement procedures
As for your suggestion that "pre-qualification is strictly prohibited before bidding", the second paragraph of Article 15 of the Regulations for the Implementation of the Bidding Law stipulates that if a tenderer uses the pre-qualification method to examine the qualifications of potential bidders, it shall issue a pre-qualification announcement and prepare pre-qualification documents. Whether or not to examine the qualifications of potential bidders is the autonomy of the tenderer, and the tenderer can conduct pre-qualification on the premise of complying with laws and regulations. The problem that the pre-qualification threshold is too high and the potential bidders are excluded in practice is rooted in the fact that the tenderee has not set the pre-qualification conditions and procedures reasonably according to the requirements of laws and regulations.
Regarding your suggestion that it is forbidden to have tendentious clauses in the bidding documents and set unreasonable qualification conditions, the Regulations on Optimizing the Business Environment drafted by our Committee and relevant departments clearly stipulates that bidding and government procurement should be open, transparent, fair and just, and market players of all ownership systems and different regions should be treated equally according to law. In the field of bidding, Article 32 of the Regulations for the Implementation of the Bidding Law stipulates that a tenderer shall not restrict or exclude potential bidders or bidders with unreasonable conditions, including not providing different project information to potential bidders or bidders for the same bidding project; Shall not set qualifications, technical and commercial conditions that are incompatible with the specific characteristics and actual needs of the project subject to tender or irrelevant to the performance of the contract; It is not allowed to take the performance and awards of a specific administrative region or a specific industry as the conditions for extra points or winning the bid in projects that must be subject to tender according to law; May not adopt different qualification examination or bid evaluation criteria for potential bidders or bidders; No specific patent, trademark, brand, country of origin or supplier shall be restricted or designated; It is not allowed to illegally limit the ownership or organizational form of potential bidders or bidders in projects that must be subject to tender according to law. In order to further promote the special rectification of the business environment in the field of bidding and tendering, in 2019, our Committee issued the Work Plan for the Special Rectification of the Business Environment in the Field of Bidding and Tendering of Engineering Projects (Development and Reform Office Regulations [2019] No.862), and together with relevant departments, promoted the comprehensive clean-up of bidding and tendering system documents that violated fair competition.Clean up, investigate and correct all kinds of unreasonable restrictions and barriers imposed on enterprises of different ownership in bidding laws and regulations, policy documents, bidding announcements, invitations to bid, pre-qualification announcements, pre-qualification documents, bidding documents and bidding practices, and seriously investigate and deal with a large number of illegal acts of excluding or restricting potential bidders. On this basis, in February 2021, our Committee issued and implemented the Notice on Establishing a Long-term Mechanism for Optimizing the Business Environment in the Field of Bidding (Development and Reform Regulation [2021] No.240, hereinafter referred to as "Document No.240"), and made arrangements for standardizing the formulation of local bidding system rules, comprehensively implementing the "double random and one open" supervision mode, and establishing a normalized collection and verification mechanism for clues that damage the business environment. In the field of government procurement, the current legal system of government procurement clearly stipulates that suppliers should not be treated differently or discriminated against under unreasonable conditions, including setting qualifications, technology and business conditions that are incompatible with the specific characteristics and actual needs of procurement projects or have nothing to do with contract performance; Not to the performance of a specific administrative region or a specific industry, awards as a bonus condition or bid, clinch a deal conditions; No specific patents, trademarks, brands or suppliers shall be restricted or designated; It is not allowed to illegally limit the ownership form, organization form or location of suppliers. If the supplier thinks that he has been treated unfairly in government procurement activities, he can raise questions to the relevant procurement units or complain to the relevant departments according to law.
As for your suggestion that experts should determine the winning bidder on the spot when the bid evaluation is completed, the bid evaluation results should not be fed back to the tenderer. According to the current legal system of bidding and government procurement, it is determined that the candidate winning the bid is the legal duty of the tenderer (purchaser). After the bid evaluation is completed, the bid evaluation committee shall submit a written bid evaluation report to the tenderer and recommend qualified candidates winning the bid. The tenderer shall determine the winning bidder according to the bid evaluation report and the recommended winning candidate. Article 55 of the Regulations on the Implementation of the Bidding Law stipulates that the tenderee shall determine the winning candidate ranked first as the winning bidder for the project that must be subject to bidding according to law with state-owned funds as the controlling or leading position.
Four, on the formulation of standard bidding documents
The preparation of standard bidding documents is of great significance for standardizing the preparation of prequalification documents and bidding documents, eliminating all kinds of unreasonable restrictions and barriers imposed on enterprises of different ownership in the bidding process, and promoting the openness, fairness and justice of bidding activities. In the field of bidding, our committee and relevant departments have successively issued a series of standard documents such as Pre-qualification Document for Standard Construction Bidding, Standard Construction Bidding Document, Concise Standard Construction Bidding Document, Standard Design and Construction General Contract Bidding Document, Standard Equipment Procurement Bidding Document, Standard Survey Bidding Document, Standard Design Bidding Document and Standard supervision bidding Document. At the same time, do a good job in the implementation of the above-mentioned standard documents, ensure the pre-qualification documents and bidding documents of projects that must be tendered according to law, and use the above-mentioned standard texts in strict accordance with regulations. In the field of government procurement, the Ministry of Finance has carried out useful explorations in formulating information release format specifications and contract standard texts, and will strengthen research in future work and promote related work in an orderly manner.
V. Handling of Complaints about Tendering and Bidding
The current legal system of bidding and government procurement has clearly defined the administrative supervision department of bidding and procurement. In the field of bidding, the first paragraph of Article 4 of the Regulations for the Implementation of the Bidding Law stipulates that the development and reform department of the State Council shall guide and coordinate the national bidding work and supervise and inspect the bidding activities of major national construction projects. The State Council industry and information technology, housing and urban construction, transportation, railways, water conservancy, commerce and other departments, in accordance with the provisions of the division of responsibilities to supervise the bidding activities. The second paragraph stipulates that the development and reform departments of local people’s governments at or above the county level shall guide and coordinate the bidding work in their respective administrative areas. The relevant departments of the local people’s governments at or above the county level shall, in accordance with the prescribed division of responsibilities, supervise the bidding activities and investigate and deal with illegal acts in bidding activities according to law. Where the local people’s governments at or above the county level have other provisions on the division of supervision responsibilities of their subordinate departments related to bidding activities, such provisions shall prevail. The fourth paragraph stipulates that the supervisory organ shall supervise the objects of supervision related to bidding activities according to law. In order to further unblock the channels of bidding objections and complaints, our Committee further requested the local bidding administrative supervision departments to improve the complaint handling mechanism, accept, investigate and handle complaints in a timely manner according to law, and publicize the administrative punishment decision online; According to the relevant laws and regulations and the responsibilities of the relevant administrative supervision departments, the division of responsibilities for complaint handling is listed in a list to avoid repeated acceptance or mutual shirking; Encourage the exploration of establishing a complaint handling mechanism for specific departments through local legislation,Prevent departments from shirking each other in areas where it is really difficult to coordinate and clarify regulatory responsibilities. In the field of government procurement, the Government Procurement Law? Article 13 stipulates that the financial departments of people’s governments at all levels are responsible for the supervision and management of government procurement, and perform their duties of supervision and management of government procurement activities according to law. Other relevant departments of the people’s governments at all levels shall perform supervision and management duties related to government procurement activities according to law.
As for your suggestion that the bidding issue should be included in the scope of discipline inspection and supervision, at present, the administrative supervision and discipline inspection and supervision of bidding and procurement activities have their own emphasis. The administrative supervision department of bidding and procurement exercises business supervision over bidding and procurement activities, and the discipline inspection and supervision department has established an effective coordination mechanism to supervise whether there are malpractices for personal gain, abuse of power and dereliction of duty in the process of performing their duties. Any unit or individual has the right to file a complaint and report any illegal act in bidding and purchasing activities. Among them, those that belong to the business scope shall be handled by the administrative supervision departments; Those belonging to the category of clean government and anti-corruption shall be handled by the discipline inspection and supervision department. Through collaborative supervision, we will form a joint force of supervision and strive to solve the illegal and illegal problems in bidding and procurement activities.
VI. Consideration for the next step
In the next step, our Committee will combine the research and absorb your suggestions, thoroughly implement the spirit of the Regulations on Optimizing the Business Environment, continue to implement Circular No.240, establish a platform for collecting clues that damage the business environment, and study and establish a system for collecting and reporting problem clues to information officers; Cooperate with the Ministry of Justice to speed up the legislative review of the Draft and listen to the opinions and suggestions of NPC deputies, CPPCC members and representatives of private enterprises more widely; Strengthen the supervision linkage with the Commission for Discipline Inspection, strengthen the administrative supervision of bidding, establish and improve the disciplinary mechanism of "one place is broken and everywhere is limited", actively explore and promote the comprehensive supervision mode of public resource transactions, and earnestly safeguard the fair competition order in the field of bidding; Timely issue policy documents to further promote the electronic bidding process during the 14th Five-Year Plan period, and revise and improve some standard bidding documents, so as to create a stable, fair, transparent and predictable bidding market environment for all kinds of market entities to invest and start businesses.
Thank you for your concern and support for development and reform.
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National Development and Reform Commission
October 14th, 2021