Complaints about the prevalence of medical devices, but you have the right to question it?

After promulgation and promulgation of the Measures for Questioning and Complaint about Government Procurement on February 2, the issue of 'you are not entitled to challenge' and 'I have the right to challenge' have often been heard in practice and once again become the concern of the industry Hot spots.

On the basis of careful study of Order 94, the author discusses the question whether suppliers are eligible and analyzes and extracts four key points, especially whether the parties concerned in the consortium that are generally concerned by the industry can separately raise questions Made an analysis.

I hope to start a discussion to inspire the industry to further study and explore the relevant provisions of the 94 orders and accurate grasp and implement the new regulations after March 1.

According to Article 52 of the Government Procurement Law and Article 10 of Order 94, the main body of the challenge should be the supplier What is the supplier? Article 21 of the Government Procurement Law gives the definition that "the supplier is the Procurer to provide goods, construction or services of legal persons, other organizations or natural persons'.

In practice, there is a special type of government procurement supplier in addition to the above three types (corporate, other organizations and natural persons), which is the Commonwealth. The Commonwealth does not belong to the legal person, nor does it belong to other organizations, nor even Belong to natural person.

Article 24 of the Government Procurement Law stipulates that "more than two natural persons, legal persons or other organizations may form a consortium to participate in government procurement activities and jointly participate in government procurement as a supplier." Clearly, the consortium is of a nature Special government procurement supplier.

In the past practice, the purchaser often encountered such a distress about whether a particular supplier has the right to challenge, and in many cases, it considers that the supplier has no right to challenge it, but finds no legal basis.

And the official implementation of 94, the purchaser such distress will be completely resolved - Article 94, Article 11, paragraph 1 provides that 'the suppliers questioned should be involved in the procurement of the challenged project', the right to The scope of the supplier that has been challenged is defined, that is, the supplier can only challenge the procurement activities involved, but can not challenge the procurement which is not involved or not involved.

In this paper, I use the prequalification approach and the use of post-qualification government procurement projects as an example, the right to question the supplier under various circumstances analysis.

First, the use of pre-qualified.

According to different stages of prequalification activities, suppliers basically have different challenges in the following three situations:

① The suppliers who obtain the prequalification documents in accordance with the law for free may challenge the prequalification documents and the government procurement activities before the application documents for prequalification are filed;

② The supplier submitting the application documents for prequalification may question the procurement activities after the deadline for filing the application documents for prequalification, such as prequalification results;

(3) If the prequalified supplier fails to obtain the procurement documents (purchase documents, competitive negotiation documents, etc.) from the relevant media at a later stage, the procurement process, the successful bidding process or the result of the transaction (hereinafter Referred to as the procurement results) questioned.

Second, the use of qualified post-trial.

The use of qualified post-trial government procurement projects, suppliers basically exist the following two cases of different challenges:

① Suppliers that acquire procurement documents according to law but do not submit tender documents or response documents according to the provisions of the procurement documents can only challenge the procurement process of the procurement documents, procurement documents and submittal documents before the deadline of the response documents, and have no right to question the procurement deadline After the procurement process, the procurement results questioned;

② According to the law to obtain procurement documents according to the provisions of the procurement documents submitted to the tender documents or response documents suppliers, procurement documents, procurement process and procurement results can be questioned.

In the post-qualification public procurement of government procurement projects, because the qualification review work completed before the bid evaluation, so I think there should be another case, that is, the supplier to withdraw from the latter part of the procurement activity is 'subjective will' Or 'objective objectionable', specific questions should be specific analysis of whether suppliers have the right to challenge.

For example, a government procurement service open bidding project, supplier A to obtain the tender documents and successful submission of tender documents, bid opening, supplier A revocation of bidding documents, I believe that because they did not participate in the back of the qualification examination and evaluation activities, and therefore not entitled Questioned the qualification results and the successful bidder.When the supplier B failed to pass the qualification examination, was he entitled to question the successful bidding result?

The author believes that supplier B has the right to challenge the successful bidding result, that is to say, there should be "subjective non-participation" and "objective non-participation" for the participation in the procurement activities of the challenged items.

'Subjective does not participate', supplier A is subjective does not participate in the post-qualification and compliance reviews and other activities; and suppliers B, subjective reasons not to participate in the subsequent compliance review and other activities, which objectively causes suppliers I can not participate in the procurement activities, I think it should be entitled to challenge the follow-up procurement activities.

In this case, if the law stipulates that after the qualifications of such government procurement projects are reviewed and before the bid evaluation work, the purchaser should inform each supplier about the result of the qualification examination, then, at this moment, the supplier believes that the supplier B does not have the right to win the bid The results questioned.

Thus it can be seen in practice that the question of whether suppliers are qualified or not should be grasped firmly and concretely in the question of whether or not they are involved in the suppliers of the procurement activities in question.

The alleged challenge in the Government Procurement Law, called "Objections" in the Tendering and Bidding Law, is both a way for the parties to relieve themselves - Article 65 of the Bidding Law stipulates that "bidders and others Stakeholders have the right to challenge the tenderer ', that is, in the bidding system, the potential bidders of the interested parties can pre-qualification documents and bidding documents and other objections, the bidders of the stakeholders can also bid evaluation results Raise objections;

However, in the government procurement law system, the supplier's stakeholders do not participate in the specific government procurement activities, so they have no right to challenge such as a government procurement of goods open bidding projects, suppliers involved in the bidding activities of stakeholder D company (Supplier C has a strategic relationship with company D, and supplier C purchases raw materials from company D for manufacturing) is not entitled to challenge any procurement process of the government procurement project.

In practice, it is necessary to entrust stakeholders and suppliers proxy Article 94 of Decree 94 provides that the supplier may entrust the agent to challenge the entrusted agent to challenge it on his behalf and shall submit the power of attorney signed by himself and comply with the relevant provisions of the Article.

Article 9 of Decree No. 94 states that 'Complaints appearing in consortia for government procurement activities should be jointly filed by all suppliers making up the Commonwealth.' There is industry view that either party to the consortium may individually challenge that no 'Collective battle' can act 'alone.' However, I do not think the members of the consortium have any right to challenge it alone, for four main reasons.

First, the joint questioning should be the precondition for joint conspiracy to file a complaint

Article 17 of Decree 94 provides that the challenge of the supplier's right to file a complaint within the statutory time limit implies the premise of the supplier filing a complaint that he must first challenge the complaint.

While Article 9 of Decree 94 provides that when a consortium participates in a government procurement activity, its complaint should be filed jointly by all the members forming the consortium. If we combine the provisions of article 17 with pre-complaint procedures that require questioning before the complaint, we can infer Out: Before joint complaints should be jointly questioned this pre-procedure; Otherwise, if the Commonwealth questioned by one of the parties alone, then the late complaints how to do?

If the Consortium does not participate in the challenge of the party proposed, can it initiate a complaint with the other consortium that challenged it before? Obviously this contradicts the requirement that the supplier must first be challenged before the complaint is filed. Speaking, I think the Commonwealth should challenge the Commonwealth, the parties should also be 'collectively acting'.

Second, the issue of joint and several liability is not applicable to the issues raised by the parties to the Commonwealth

Article 24 of the Government Procurement Law stipulates that all parties to the Commonwealth shall jointly sign the procurement contract with the purchaser and shall jointly and severally hold the purchaser in respect of the matters agreed in the procurement contract.

This statutory 'joint and several liability' is obviously not directed at the government procurement process. That is, it does not emphasize that all parties in a consortium should bear joint and several liability while contracting a contract. Instead, it emphasizes that all parties in the consortium should, in the performance of the contract, Undertake legal joint and several liability.

Consortia questioned, apparently belongs to the content of the contracting process of the contract, rather than the process of contract performance, so I think the consortium to challenge the behavior, there is no 'joint and several liability' to say.

Third, more members of the consortium can only express their intention as a supplier

As the industry is unanimously agreed, the consortium is not a legal person, other organization or natural person. Article 24 of the Government Procurement Law stipulates that a consortium is "a supplier's identity" when it participates in government procurement.

In other words, the members of a consortium are, of course, legal persons, other organizations or natural persons. However, for a consortium, each member is no longer a specific supplier to participate in government procurement activities, and may simply interpret the parties that form the consortium as Is the "stakeholder" of the consortium, so all members of the consortium have no right to challenge it alone.

For example, a government procurement of goods open Bidding project, purchase People accept the consortium bid, E company and F company to form a consortium to participate in the tender, consortium bid in the consortium, E company and F company submitted three tender documents? Obviously not.

Even if a consortium is composed of more members, when participating in government procurement activities, when purchasing people or purchasing agencies count the number of suppliers, they will still be a supplier. In the process of participating in government procurement activities, the consortium Always be a sense of overall and identity to express.

Practice needs to be pointed out that the consortium questioned, if the consortium agreement clearly questioned by the lead person to the purchaser, the lead in the submission of a letter of doubt at the same time, should be accompanied by a consortium agreement to prove that Is the true meaning of the Commonwealth, said; if not clear, the Consortium submitted a questioning letter should be all members of the signature or seal.

Fourth, prior to the establishment of the consortium, either party could challenge it separately

In practice, all the parties that make up the consortium jointly put forward the question of whether there are obstacles and disconnections in the operation. The author analyzes that there is maneuverability.

Taking a public procurement project for public procurement as an example, it is understood in principle that after the announcement of the bidding announcement, Company G and Company H that intend to form a consortium should obtain the bidding documents as a consortium, that is, as a supplier Get a tender document.

Take a step back, maybe in practice, Company G and Company H each obtained the bidding documents. After studying the bidding documents, they decided to form a consortium to participate in the bidding. Then, after acquiring the bidding documents, Company G decided to form a consortium with Company H before Is it possible to challenge the bidders for the bidding documents in the legal questioning period?

The answer is in the affirmative, so when Company G acquired the bidding documents as a supplier, it certainly has the right to challenge it during the period of legal challenge, which is not a 'collective' argument.

G companies and H companies form a consortium to submit the tender documents, H companies can 'stand alone' on the successful bidder to challenge the purchaser?

The answer is no, because Company H did not satisfy the requirement that the supplier who questioned should be the supplier that participates in the procurement of the challenged item. There is a 'collective' argument that only the consortium has the right to procure the successful bid result People questioned.