Zheng Cairen, the government procurement dispute handling in 2022 May face three changes

2022-05-26 0 By

Three major changes are expected in the handling of government procurement disputesOn December 4, 2020, the Ministry of Finance issued the Draft Of the Government Procurement Law of the People’s Republic of China (Revised Draft) (hereinafter referred to as the Revised Draft of the Government Procurement Law), soliciting public opinions. Will the 2022 revised Government Procurement Law be reviewed and approved?The revised draft of the Government Procurement Law reflects some changes in the handling of government procurement disputes. The author puts forward some personal opinions on these changes and hopes to discuss them with people in the field.Question of qualifications of subject of the complaint’s change of the government procurement law article 52, “think purchasing files, purchasing process, and the winning of suppliers, the volume of their own rights and interests are harmed as a result, can be in the know or should know the rights and interests are harmed seven working days from the date of, in written form to the purchasing people questioned.”Article 55 of the Government Procurement Law stipulates that, “If a supplier is not satisfied with the reply given by the purchaser or the procurement agency, or the purchaser or the procurement agency fails to give a reply within the specified time, it may complain to the government procurement supervision and administration department at the same level within 15 working days after the expiration of the reply period.”Article 11 of The Measures for Questioning and Complaining about Government Procurement (Order No. 94 of the Ministry of Finance) stipulates, “The supplier raising the questioning shall be the supplier participating in the procurement activities of the project in question.If a potential supplier has obtained its contestable purchase documents according to law, it may challenge such documents.Any challenge to the procurement documents shall be raised within 7 working days from the date of obtaining the procurement documents or the expiration of the period for the announcement of the procurement documents.”According to the above provisions, there are two criteria for judging whether the subject of challenge complaint is eligible: first, the subject of challenge complaint should be the supplier participating in the procurement activities of the project in question;Second, in the case of questioning and complaining about procurement documents, the subject of questioning and complaining should be the potential supplier who has obtained the procurement documents that can be questioned according to law.Only from the relevant contents of Article 109 and Article 111 of Chapter vii dispute Handling in the Revised Draft of government Procurement Law, the qualification of the subject of challenge complaint has not changed significantly.However, there are new provisions in articles 18 and 19 of the revised Draft of the Government Procurement Law on the definition of suppliers and the conditions for suppliers to participate in government procurement activities.According to Article 18 of the revised Draft of the Government Procurement Law, “suppliers refer to legal persons, unlegal organizations or natural persons who participate in government procurement activities and are willing to provide goods, construction or services to purchasers.”Article 19 of the revised Draft of the Government Procurement Law stipulates that “suppliers participating in government procurement activities shall have the ability to undertake procurement projects.Where laws, administrative regulations and relevant state regulations have provisions on the qualifications of suppliers, suppliers shall meet the corresponding requirements.The purchaser may, according to the special requirements of the procurement project, set specific conditions for the supplier, but shall not discriminate or discriminate against the supplier based on unreasonable conditions such as geography, ownership.Suppliers under the following circumstances shall not participate in government procurement activities :(1) being declared bankrupt;(2) unpaid taxes or social security funds;(3) being restricted or prohibited from participating in government procurement activities due to illegal acts;(4) other circumstances in which they are prohibited from participating in government procurement activities in accordance with laws, administrative regulations and relevant state regulations.If the purchaser has evidence to prove that the supplier has breached the procurement contract with the purchaser or his subordinate unit in the past and failed to take reasonable remedial measures in time, the purchaser may refuse to participate in the procurement activities, but it shall be clearly stated in the procurement documents in advance.”According to the above provisions in the revised Draft of the Government Procurement Law, there are three new criteria to judge whether the subject of a challenge complaint is eligible. First, the subject of a challenge complaint should not only provide goods, construction or services to the purchaser, but also be “willing” and “capable”.Willing, refers to the participation in government procurement activities is the supplier’s true intention;Competent means that the supplier should have the ability to undertake the procurement project.Obviously, so the purpose of the rules is trying to eliminate the “no intention” or “no” but try to the sham as the genuine of participants, that is to say, if there is no real intention of the government procurement activities, or do not have the ability to undertake the project procurement, the supplier of the subject does not belong to the government procurement law sense, also do not have question of qualifications of subject of the complaint.However, judgment “will” and “ability” the standard is not clear, especially “willing” belongs to the subjective factors, in the practice of judging takes objective evidence to reflect, there is a certain difficulty, this “the draft amendment to the government procurement law” did not give a clear answer, hope in the government procurement law finally revised or embodied in the implementation regulations.Second, the subject of the challenge complaint should meet the legal qualifications for suppliers to participate in government procurement activities as stipulated in the revised draft of the Government Procurement Law.The Ministry of Finance pointed out in the key points of the case no. 29, the guiding case of the third batch of administrative rulings on government procurement: “If a potential supplier has obtained the procurement document according to law, it can challenge the document, but it should comply with the relevant provisions of Article 22 of the Government Procurement Law.A market subject that clearly does not have the necessary equipment and technical expertise to perform the contract is not a potential supplier.”Because of “the draft amendment to the government procurement law” article 19 of the government procurement law article 22 suppliers to participate in government procurement activities the legal qualifications of the revised, 29 cases with instructional cases points related content, questioned the complaints body shall conform to the “draft amendment to the government procurement law” the regulation of suppliers to participate in government procurement activities of legal qualifications.Since the focus of this paper is to analyze the changes in the treatment of government procurement disputes, rather than the specific content of the changes in the legal qualification conditions for suppliers to participate in government procurement activities, it will not be further expanded here.Third, the subject of questioning complaint is not the subject of the purchaser’s refusal to participate in government procurement activities.Article 19, Paragraph 3, of the Revised Draft of the Government Procurement Law grants the purchaser the right to refuse relevant suppliers to participate in government procurement activities. Therefore, if the subject of questioning complaint belongs to the subject that the purchaser explicitly refuses to participate in government procurement activities, it is not qualified as the subject of questioning complaint.According to paragraph 2 of Article 112 of the revised Draft of the Government Procurement Law, “When handling complaints, the government procurement supervision and administration department may first mediate and organize cross-examination when necessary.The time needed for inspection, testing, appraisal, expert review, obtaining evidence from the relevant units and for the relevant participants to supplement and correct the materials shall not be counted in the complaint handling period.”According to the above provisions, the complaint handling procedures in the revised Draft of the Government Procurement Law reflect two changes: First, it clearly stipulates that the complaint handling can be mediated in advance.Government procurement complaint handling behavior belongs to the administrative adjudication behavior of financial department to adjudicate civil disputes closely related to government procurement activities based on suppliers’ complaints and authorized by laws and regulations.In order to resolve disputes and disputes, the financial department may, in accordance with the principle of voluntary mediation between the parties, organize the parties to resolve disputes through consultation by means of suggestions, guidance and persuasion, as well as by providing factual investigation results, professional appraisals, expert argumentation opinions or legal opinions.If the dispute cannot be settled through mediation, an administrative ruling shall be made.Mediation in advance of complaint handling is conducive to promoting dispute settlement, and also conforms to the relevant spirit of mediation in administrative adjudication in opinions on Improving administrative Adjudication System and Strengthening Administrative Adjudication work.Second, it clearly stipulates that the time required for investigation will not be counted in the complaint handling period, giving the financial department more sufficient time for investigation.Article 27 of The Measures for Questioning and Complaining of Government Procurement (Order No. 94 of the Ministry of Finance) stipulates that “the time required for financial departments to deal with complaints, which requires inspection, testing, appraisal, expert evaluation and the complainant to supplement and correct the materials, shall not be counted in the complaint handling period.”The revised draft of the Government Procurement Law further extends the “required time” to include “the time required to collect evidence from relevant units and the time required for relevant participants to supplement and correct the materials”.In the complaint handling investigation work of financial departments, it takes a lot of time to collect evidence from relevant units and need relevant participants to supplement and correct the materials. The above revision conforms to the actual work and guarantees the fact investigation work of complaint handling to be more complete and complete.Article 58 of the Government Procurement Law stipulates that “if the complainant refuses to accept the decision of the government procurement supervision and administration department on complaint handling or the government procurement supervision and administration department fails to deal with the decision within the time limit, he may apply for administrative reconsideration or bring an administrative lawsuit to the people’s court.””A draft amendment to the government procurement law” the one hundred and fourteenth regulation, “the complainant of the government procurement supervision and regulation department complaint handling decision refuses or fails to make government procurement supervision and regulation department, can to people court to lodge a lawsuit, and can be resolved at the people’s court lawsuit request related government procurement dispute.”According to article 115 of the revised draft of the Government Procurement Law, “In the course of concluding a government procurement contract, a supplier may file a lawsuit with the people’s court in accordance with the law if it considers that the behavior of the purchaser or the procurement agency has infringed upon its legitimate rights and interests.After the people’s court has registered the case, the supplier shall not lodge a complaint to the government procurement supervision and administration department over the same government procurement dispute.If the supplier files a lawsuit during the complaint handling process, it shall promptly inform the government procurement supervision and administration department and terminate the complaint handling.”According to the above provisions, the provisions of the Revised Draft of the Government Procurement Law on the way to resolve disputes in government procurement reflect three changes: First, the revised Draft of the Government Procurement Law has abolished the administrative reconsideration relief procedure after complaint handling.If the complainant refuses to accept the decision on complaint handling or the government procurement supervision and administration department fails to deal with it within the time limit, administrative litigation shall be the only remedy procedure.As mentioned above, government procurement complaint handling behavior belongs to administrative adjudication and has quasi-judicial nature.There are three kinds of remedies for the follow-up of administrative adjudication: the first is that the counterpart has the right to choose administrative remedies and judicial remedies;The second is that the counterpart can only request administrative relief but not judicial relief;The third is that the counterpart can only request judicial relief but not administrative relief.The revised draft of the Government Procurement Law adopts the third type of relief approach, that is, the administrative reconsideration is cancelled and only the administrative litigation relief procedure is retained.Second, the revised draft of the Government Procurement Law stipulates that the complainant may request the people’s court to resolve the relevant government procurement disputes when bringing an administrative lawsuit.According to the provisions of the current government procurement law, if the complainant brings an administrative lawsuit, the examination object of the administrative lawsuit is the legality of the government procurement complaint handling behavior, and the government procurement dispute that the complainant expects to solve may be different from the legality of the government procurement complaint handling behavior.After the administrative trial, even if the judicial organ cancels or changes the government procurement complaint handling behavior, it does not mean that the government procurement dispute has been resolved.Article 61 of the Administrative Procedure Law stipulates that “in administrative litigation involving administrative licensing, registration, expropriation and requisition, as well as decisions made by administrative organs on civil disputes, if the parties apply for the settlement of relevant civil disputes together, the people’s court may hear the case together.”The revised draft of the Government Procurement Law stipulates that the complainant may request the people’s court to resolve relevant government procurement disputes simultaneously when bringing an administrative lawsuit, which is in line with Article 61 of the Administrative Procedure Law and conducive to the substantive settlement of government procurement disputes.Third, the revised draft of the Government Procurement Law explicitly grants suppliers the right to directly file civil lawsuits.According to the revised draft of the Government Procurement Law, if a supplier considers that its legitimate rights and interests are infringed upon by the behavior of the purchaser or the procurement agency during the conclusion of the government procurement contract, it may file a civil lawsuit against the purchaser or the procurement agency to the people’s court.Since the same dispute should not be handled by different authorities at the same time, the supplier’s choice of judicial remedy means that it has given up the administrative remedy and is no longer qualified for complaint. The financial department has the right to reject the complaint and terminate the complaint immediately if it has been accepted.Although there are similar provisions in Article 79 of the Government Procurement Law, that is, the parties involved in government procurement should bear civil liabilities in accordance with relevant civil laws and regulations if their illegal acts cause losses to others.However, this regulation is based on the premise that the parties involved in government procurement have committed illegal acts. Usually, the financial department makes the decision of complaint handling or supervision and inspection in advance, and the supplier has the precondition of filing a civil lawsuit.The revised draft of government Procurement Law grants suppliers the right to directly file civil lawsuits, that is to say, suppliers can directly solve government procurement disputes through civil lawsuits without first going through administrative relief channels such as questioning and complaining. This undoubtedly expands suppliers’ relief channels and is conducive to the settlement of government procurement disputes.However, this provision of the revised draft of the Government Procurement Law still deserves careful consideration.Limited to suppliers of civil lawsuit filed conditions “in the process of government procurement contract is concluded,” the process “” government procurement contracts should be narrow understanding for government procurement contract is signed, or a general understanding to issue an invitation to offer in the each purchase way until the government procurement contract is signed, suggested that the government procurement law final revision, use” general “,And make clear and explicit provisions.