How can I tell if a bid response material is valid?

Case 1

Bureau A's "Government Information System Upgrading and Transformation Project" adopts competitive negotiation to implement procurement, and the supplier qualification requirements of the procurement documents include "providing the 2023 audit report or credit certificate issued by the opening bank". During the qualification review, the consultation group found that the credit certificate provided by supplier D, which was titled "Management Office X" at the beginning of the document and not the purchaser A bureau or the project procurement agency, and the consultation group believed that supplier D did not meet the qualification requirements of the project and informed it that it could not enter the consultation and review process. After the announcement of the transaction results, Supplier D raised a complaint and complained to the financial department because of the dissatisfaction with the reply to the question, Supplier D complained: "Two days before the deadline for submission of response documents, the company submitted an application to the opening bank for the issuance of credit certification documents, due to the need for other projects at the same time, the bank issued a certificate for different procurement projects (procurement units), and the staff who prepared the response documents negligently mixed the information, although the title is wrong, but the materials have been included to prove it' Credit status' all contents, and meet the qualification requirements of 'provide credit certificate issued by the opening bank'. Therefore, the decision of the Consultative Group violated the provisions of the Notice on Promoting Fair Competition in Government Procurement and Optimizing the Business Environment, which stipulates that 'suppliers shall not be restricted or affected by non-substantive format and form issues such as binding, paper, and document sequencing', and is an error in the determination of qualifications. ”

Case 2

The procurement project of biochemical equipment in H City Maternal and Child Health Hospital was completed by public bidding. During the performance of the contract, the audit department found that the manufacturer's "Medical Device Production License" provided by the winning supplier was stamped with the seal of "only for the bidding of the hospital in E county", and the hospital was not the procurement unit of the project. According to the audit, the qualification of the project bidding documents requires the supplier to provide the manufacturer's medical device production license, and the supplier provides a certificate of "only for the bidding of other units" for the legal source of the product, indicating that it has not obtained the valid authorization of the manufacturer of the bidding product, which should be regarded as an invalid certificate, and the purchaser has "failed to conduct qualification review in accordance with the regulations". (Note: The winning supplier explained to the audit statement that it was misplaced as other project materials when preparing the bidding documents)

Case Study

Is the certificate (supporting material) valid in the case scenario?

In government procurement projects, the procurement documents require the supplier to provide the corresponding certificate (or supporting materials, the same below) to prove that the supplier (or product) is legal and valid and meets the procurement needs. How do purchasers or experts determine whether a certificate is valid? The author believes that it can be summarized in the following aspects.

1. Whether the certificate is genuine. Laws and regulations prohibit the provision of false materials to win bids. In practice, the circumstances of providing false materials include fabricating non-existent performance, forging materials (or certificates) that match the needs, deliberately tampering with (or covering) data, fictitious personnel information, etc., as well as similar behaviors such as suppliers concealing the true situation that they are large enterprises in the "SME Declaration Letter", declaring that they are small and medium-sized (micro) enterprises in order to obtain bidding qualifications or price deductions. In the author's opinion, the materials in this case were incorrectly titled and stamped with seals for other projects, which are objectively not false materials.

2. Whether the certificate has legal effect. Whether a document has legal effect, one depends on the provisions of relevant laws and regulations, such as some certificates have mandatory annual inspection requirements, and if they do not pass the annual inspection, they will be deemed invalid; if some certificates clarify the effective time, scope, and content, they will be deemed invalid if they exceed (or do not include); For example, the authorization letter of the product manufacturer is required to prove that the product has traceability and the quality is promised by the manufacturer after sale, and the authorization letter naturally needs to be issued by the manufacturer and stamped with the official seal and signed by the legal person. In the author's opinion, the credit certificate in the case is issued by the depositary bank, and the medical device production license is approved and issued by the relevant state departments, both of which have legal effect.

3. Whether the form and content of the certificate meet the substantive requirements of the procurement documents. In some cases, the procurement documents will make substantive requirements for the form and content of the certificate, such as the foreign language certificate must be accompanied by a Chinese translation and be responsible for the accuracy of the Chinese translation; if the test report or product color page required must contain the technical indicators of the procurement demand, otherwise it will be regarded as a non-response; and if the written commitment letter must contain specific content, otherwise it will be deemed invalid.

For example, the SME Declaration Letter for Goods Procurement shall provide relevant content such as the manufacturer of the product, its products, data and other relevant content, otherwise it shall be deemed invalid.

In this case, the credit certificate issued by the bank is required to be used as an indirect reflection of the "sound financial accounting system", and the procurement document does not make specific requirements for the form and content, and the error in the title does not affect the substantive requirements of the credit certificate. The "Medical Device Production License" is issued by the supervision department, the content is relatively fixed, belongs to the industry qualification conditions, and is stamped with the seal for other projects, and does not affect the substantive content to be reflected in the certificate.

4. Whether the content of the certificate harms the legitimate rights and interests of the parties. Materials that are false, have no legal effect, or do not meet the substantive requirements of the procurement documents will naturally cause damage to the legitimate rights and interests of the relevant parties once they are erroneously recognized. However, if the supplier adds, subtracts or modifies the content of the editable material, it will be judged on a case-by-case basis.

One situation is that the content of the response is inconsistent with the procurement requirements, which has an impact on the determination of the conclusion (outcome). If the "SME Declaration Letter" provided by the supplier is clearly inconsistent with the procurement documents, it is likely to affect the judgment result of "whether the supplier is a small and medium-sized enterprise in the industry specified in the project"; if the delivery time promised by the supplier does not meet the requirements, it may lead to contract disputes once the bid is awarded; and if a complete test report is required, the "missing and missing" part of the supplier is likely to be the content that does not meet the procurement needs. The addition or deletion of the above-mentioned similar content may lead to damage to the legitimate rights and interests of the parties.

In the other case, there is an obvious formal (format) or clerical error, but it does not affect the purchaser or the expert to make an objective judgment on the corresponding matter. For example, in the "Government Procurement Guiding Case No. 40" issued by the Ministry of Finance, the supplier misunderstood the format and promised that "our company was a supplier that provided overall design, specification preparation, project management, supervision, testing and other services for the project in the early stage", and the purchaser found that "the supplier shall not provide overall design, specification preparation, project management, supervision, testing and other services for the procurement project in the process of confirming the transaction results" In order to believe that the project had been wrongly identified in the qualification review and re-evaluated, the financial department held that the purchaser should have known whether the supplier had provided "overall design, specification preparation or project management, supervision, testing and other services" for the procurement project; The existing facts do not affect the signing of a government procurement contract with University B.

In the same way, the requirement for the Medical Device Production License itself is to prove the legitimacy of the product manufacturer's production, and the seal on the certificate "for other items only" does not affect the content of the certificate and will not cause damage to the rights and interests of other parties.

5. Whether the content of the certificate is a true expression of intent. According to the relevant provisions of the Civil Code of the People's Republic of China, civil juristic acts shall be established in accordance with the law if there is no fraud, coercion, material misunderstanding, obvious unfairness, etc., which are invalid, revocable, or modifiable. In the process of signing and performing a contract, the expression of the true intention of the parties has legal effect.

For example, in the "Government Procurement Guiding Case No. 33" issued by the Ministry of Finance, the supplier follows the template format of the "Genuine Software Commitment Letter" to "pre-install a genuine operating system on the computer products that it promises to submit", but does not indicate the "server" or "agent client" products required in the technical requirements. The financial department believes that the supplier has made a commitment in accordance with the format text provided in the bidding documents, the intention is true and clear, and the content of the commitment does not violate the relevant substantive requirements. The bid evaluation committee shall not determine that the supplier has failed the conformity review on the grounds that the genuine software commitment does not meet the requirements.

In the case of this case, the supplier provided a credit certificate to indicate the true financial credit status to the purchaser or expert, and the wrong title did not violate the above true expression, and similarly, the seal of "for other items only" on the "Medical Device Production License" did not violate the supplier's true intention to the purchaser (i.e., the product manufacturer has legal production qualifications).

In the author's opinion, the judgment of whether the certificate (material) is valid should be comprehensively judged from the aspects of whether it is genuine, whether it has legal effect, whether it violates the substantive requirements, whether it damages the legitimate rights and interests of the parties, and whether it is the true expression of the supplier's intentions. Accordingly, the circumstances in the case should not be held invalid.

How to deal with the case situation?

In the author's opinion, first, it can be regarded as an obvious clerical error and clarified. In the evaluation process, the purchaser or expert can treat it as "the content of obvious textual errors" in accordance with the provisions of Article 51 of the Administrative Measures for the Bidding and Bidding of Government Procurement of Goods and Services (Decree No. 87 of the Ministry of Finance), and request the bidder to make necessary clarifications, explanations or corrections in writing. Second, it can be used as a supplementary document when the contract is signed. When signing the contract, the supplier may be required to correct the error in the form of supplementary documents, which obviously will not make substantial changes to the matters determined in the bidding documents and the bidding documents of the winning bidder, similar to the clarification, explanation or correction in the evaluation process.

Of course, if it is discovered in the course of the performance of the contract, the author believes that it should be regarded as "there is no material misunderstanding, obvious unfairness, etc., which is invalid, revocable, or modifiable", and the contract is valid.

(Author: Li Ying, Lu Qian, Author's Affiliation: Guizhou Weihong Bidding Co., Ltd.)

Source: Chinese Government Procurement News