case
According to the evaluation results of the public bidding procurement project of primary and secondary school teaching equipment of a municipal education bureau, the comprehensive score of company A is 89 points for the first candidate supplier for winning the bid, and the comprehensive score of company B is 88.50 points for the second candidate supplier for winning the bid. Company B believed that its offer was the lowest, the objective scoring items provided supporting materials that met the requirements, and the subjective scoring items had a total of 12 points, even if all the subjective scores were lost, the estimated score was more than 88.50 points, so it raised a written challenge to the purchaser and the agency. In order to ensure the independent review of the review committee and reduce the "illegal interference" of human factors in the review, the local supervision and management department stipulates that all personnel except the review committee are not allowed to enter the review site. Modeling and analysis of review conclusions and other functions, resulting in the agency failed to grasp the relevant situation of the review site in a timely manner, and the review report did not record in detail the review of the gains and losses.
After verification and confirmation by the evaluation committee, Mr. Li, an expert responsible for reviewing the bidding documents of Company B, made a mistake in understanding the terms of a certain scoring item, resulting in Company B meeting the requirements but not being identified, and the actual score of Company B should be 90.50 points. The remaining members of the review committee did not review the bidding documents of Company B, nor did they check the evaluation data of expert Li, which directly affected the evaluation results. In accordance with the relevant provisions of Article 75 of the Regulations for the Implementation of the Government Procurement Law of the People's Republic of China (hereinafter referred to as the "Implementation Regulations") and Article 55 of the Administrative Measures for the Bidding and Bidding of Government Procurement of Goods and Services (Decree No. 87 of the Ministry of Finance, hereinafter referred to as Order No. 87), the members of the evaluation committee have not independently reviewed the bidding documents of each supplier in accordance with the evaluation procedures, evaluation methods and evaluation standards specified in the procurement documents. The purchaser and the agency decided to re-carry out the procurement activities, and at the same time reported the relevant situation in writing to the Municipal Finance Bureau.
analysis
First of all, the background of this case reflects a perception of "generalizing from the side", focusing on "independent review" and ignoring the premise of "according to law". Judging from the evaluation basis determined by the legal system of government procurement, whether it is a bidding method or other procurement methods, the evaluation committee "shall, in accordance with the principles of objectivity, fairness and prudence, conduct independent evaluation in accordance with the evaluation procedures, evaluation methods and evaluation standards stipulated in the procurement documents; Articles 34 and 41 of the "Implementing Regulations" and Article 24 of the "Interim Measures for the Administration of Competitive Consultation and Procurement Methods in Government Procurement" all have clear provisions in this regard. While emphasizing the relevant principles of review, it is clear that "orderly compliance" is the basic premise of "independent review", that is, "independent review" is not the same as "arbitrary review" or "division of labor review". The Notice of the Ministry of Finance on Further Standardizing Issues Concerning the Evaluation of Government Procurement (Cai Ku [2012] No. 69, hereinafter referred to as Document No. 69) stipulates that "the members of the review committee and the relevant personnel of the review work shall not interfere with or affect the normal review work, shall not express or imply their tendencies and guiding opinions, and shall not modify or refine the review procedures, evaluation methods, evaluation factors and evaluation standards determined by the procurement documents." "If the review committee finds that there are ambiguities or major defects in the procurement documents that make it impossible to carry out the review work, or that the content of the procurement documents violates laws, administrative regulations, relevant national mandatory provisions, mandatory standards, and government procurement policies, it shall take the policy of "stopping the review and explaining the situation in writing to the purchaser or agency" in combination with the relevant provisions of Article 41 of the Implementation Regulations, Articles 25, 51, 65 and 69 of Order No. 87 Rather than advocating for changes to the review process, methods and standards. For some minor defects or expressions in the bidding and response documents, such as unclear meanings, inconsistent expressions of similar issues, or obvious text and calculation errors, etc., the supplier shall be required to make necessary clarifications, explanations or corrections in writing on the premise that the scope of the bidding and response documents is not exceeded or the substantive content of the documents is changed.
Secondly, the independent review is embodied in the following three aspects: First, the form of the review. All members of the evaluation committee shall review all bidding or response documents one by one, compare and evaluate them according to the evaluation methods and standards specified in the procurement documents, and shall not use the so-called division of labor model to "cut corners", nor shall they remove the highest and lowest quotations in the quotation, and shall summarize the scores of each supplier. The second is the review data. For example, necessary communication can reduce unnecessary errors and ensure that the objective scoring items of suppliers are consistent, and if there is a dispute between the members of the review committee that need to be jointly determined, it is necessary to make a conclusion according to the principle of minority obeying the majority. For other subjective scoring items that need to be judged with the help of professional knowledge, they should give full play to their knowledge reserves, professional experience and other advantages, and score fairly in accordance with the evaluation standards. Necessary communication can clarify key points, resolve ambiguities, expand ideas, improve cognition, and improve efficiency, but it is not allowed to negotiate and score subjective evaluation factors, or even directly excerpt from the "take-it-or-leave-it" doctrine. The third is the reciprocity of rights and responsibilities in the review. Purchasers and agencies have the obligation and should also take necessary measures to ensure that the review is carried out in strict confidentiality while implementing the "independent review in accordance with the law", and to ensure that it is not subject to "illegal interference" beyond the provisions of the system, and the evaluation experts who have been selected and hired into the database shall participate in the government procurement review in an independent capacity, obtain remuneration for labor services, and be responsible for their evaluation behavior. Therefore, the review experts should also establish a strong sense of integrity and risk awareness, so that they do not contact the supplier privately before the end of the review, and do not accept the clarification and explanation proposed by the supplier. Actively study and master the norms of the government procurement system, abide by the review discipline, do not express or accept the tendencies of others, and put an end to the illegal review behavior caused by factors such as "subconscious" and "take it for granted".
Secondly, as the organizer of the review, the agency enters the review site to perform its duties, and the review committee is under the framework of the legal system, mutual supervision, mutual restraint, and mutual assistance, and there is no mutually exclusive impact on the "independent review according to law" with the review committee. Due to the strict prohibition of purchasers, agencies and other review work organization personnel to enter the review site, and the lack of sufficient online supervision and technical support, the entire review process is in a closed state, other personnel can not intuitively and effectively grasp the review process and details, lack of effective supervision and constraints, the division of labor and review errors made by the review committee are difficult to find in time, and they can not be corrected and stopped in time. If the staff of the agency in the organization of the review work to supervise the review committee in accordance with the law, illegal interference in the review or other violations of laws and regulations, the review committee can be in accordance with the law to the purchaser, the agency feedback, and report to the financial department, which is conducive to ensuring the fairness and objectivity of the review, to avoid the right to arbitrary review behavior.
Finally, the agency staff is not a person who has nothing to do with the review work, and the agency should perform the relevant duties in accordance with the law and organize the review work. According to Articles 45, 66 and 69 of Order No. 87, the purchaser and the agency, as the organizers of the review work, need to strengthen the supervision and management of the review site and take necessary measures to ensure that the review is carried out in strict confidentiality. Article 66 of Order No. 87 has made it clear that it is strictly forbidden to enter the review site for persons who have nothing to do with the review work except for the representatives of the purchaser and the organizers of the review site, and the staff of the agency, as the specific organizers of the review work, are obviously not within the scope of the prohibition from entering the review site. In the review process, the agency needs to perform duties such as maintaining the order of the review, supervising the review committee in accordance with the law, organizing the supplier to clarify in writing, checking the review data and results, and recording the review of the evaluation experts.
启示
First, the agency staff can not be equated with "illegal interference with the review", the supervision and management department will inevitably link the two, to ensure that the independent review of the review committee is not illegally interfered with, prohibit the relevant staff from entering the review site, deprived the agency of the right to organize the review work, in violation of the relevant provisions of Order No. 87 Article 45 and Article 66. In the review process, the purchaser or agency not only undertakes the review organization work, but also belongs to the supervision and management of the supervision and management department, the core of concern should be whether the review work is organized and carried out in accordance with the law and whether the relevant personnel who enter the review site effectively perform their duties, whether they have made a tendentious explanation to the review committee, and whether there are illegal situations such as requiring the review committee not to review in accordance with the prescribed evaluation standards. A "one-size-fits-all" ban on the review organizers from entering the review site will result in the review work of the review committee not being subject to any restrictions, and if there is any illegal behavior, it may lead to the inability to correct it in time, and even have serious consequences.
The second is to have a positive attitude towards the agency entering the review site, unloading the burden of the "presumption of guilt" that the agency entering the review site is equivalent to illegally interfering in the review activities, and at the moment of promoting electronic bidding and procurement and digital transformation, multiple measures should be taken at the same time, configure high-definition audio-visual equipment, promote review data screening and abnormal situation warning technology, give full play to the role of the online supervision platform, and provide "supervision technology blessing" in electronic intelligent review With the help of the increase in the capacity and scope of the announcement of the winning bid (transaction) results, we will effectively strengthen the supervision and management of the review work. If it is found that there are violations of laws and regulations by purchasers, agencies, review experts, suppliers and other parties, they should be dealt with in accordance with the law, and they should not only pursue formal supervision and ignore the guarantee of review quality and project quality and efficiency.
(Author: Huang Chao Author's Affiliation: Ningguo Municipal Government Procurement Center, Anhui Province)
Source: Chinese Government Procurement News