1, confused the question with the question.
Inquiry refers to the supplier's consulting and questioning about what he doesn't know and asking for information and explanation. Some suppliers don't understand the difference between inquiry and inquiry, and regard inquiry as inquiry, while buyers or their entrusted agencies regard inquiry as inquiry indiscriminately. The difference between questioning and questioning lies in:
Different themes. According to Article 11 of Decree No.94, the supplier who raised the question should be the supplier who participated in the procurement activities of the questioned project. If a potential supplier has obtained the procurement documents that he can legally question, he can question these documents. The subject of inquiry is relatively wide, and there is no requirement that it must be a supplier participating in the procurement activities of the inquiry project, and all potential suppliers should be included.
Things are different. If the supplier believes that the procurement documents, procurement process or the result of winning the bid or closing the transaction have harmed his interests, he may raise doubts. Inquiry is not limited by specific matters, as long as it is related to procurement activities, it is not necessarily related to the rights and interests of the inquirer.
The handlers are different. There are special procedures for handling inquiries, and the procedures for handling inquiries are stipulated in Decree No.94 and the normative documents formulated by the provinces. The answer to the question was not specified.
The requirements for certification materials are different. Questioners must provide relevant certification materials according to law, and interrogators generally do not need to provide certification materials.
Time limits and forms are different. There is a strict time limit for suppliers to ask questions, and they should be asked in writing. There is no time limit for asking questions, and it is not limited to written form. The time limit for reply is also different: reply within 3 working days of inquiry and reply within 7 working days of inquiry.
The legal consequences are different. If the supplier is not satisfied with the inquiry reply, he can complain to the government procurement management department, which must deal with it according to law. If the supplier is not satisfied with the inquiry, it can continue to report to the relevant departments, but the relevant departments may not necessarily handle it, and may also start the supervision and inspection procedures.
2. The supplier reported that the problem was query.
Some suppliers nominally use inquiries (such as an inquiry letter), but they do not provide any indication, facts or supporting materials that their rights and interests have been harmed. In this case, the supplier only reflects the problems existing in the project to the purchaser or agency, which is essentially different from questioning because the rights and interests are damaged.
3. Inquire about the illegal acts pointed out by the supplier.
The supplier only pointed out the illegal acts in the procurement activities, but did not make it clear that these illegal acts harmed their own rights and interests. Such "pointing out" still reflects the problem and does not belong to doubt.
4. treat things that have nothing to do with yourself as problems.
As mentioned above, the questions raised by suppliers must be matters that they think their rights and interests are damaged. Although some doubts may harm the rights and interests of suppliers, they may not necessarily harm the rights and interests of the questioned suppliers. For those matters that are objectively impossible to harm the rights and interests of the skeptics, the skeptics can't take the way of questioning to defend their rights and relief. For example, a supplier queries that the procurement document requires the supplier to set up an after-sales service organization at the purchaser's location, which discriminates against the supplier and damages the supplier's right to participate in government procurement fairly. However, if the questioner is a local supplier and his after-sales service organization is in the local area, this requirement of procurement documents cannot damage his right to participate in procurement fairly. It is foreign suppliers who should question this requirement.
5. Replace the rejection with a rejection letter.
The premise that the purchaser or agency does not accept the challenge is the legal review of the challenge letter. Therefore, we must receive the inquiry letter from the supplier first. Rejecting the inquiry letter will not be able to check whether the supplier's inquiry meets the statutory conditions. Article 13 of Decree No.94 also makes it clear that "the purchaser and procurement agency shall not refuse the inquiry letter sent by the supplier in question within the statutory inquiry period".
6, refused to accept on the grounds that the question was not established.
At the time of acceptance, the review of supplier inquiry only examines whether it meets the statutory conditions, not whether the inquiry is true. Whether the problem is true or not can only be decided after investigation and verification after acceptance.
7, refused to accept on the grounds of insufficient evidence.
Whether the evidence questioned by the supplier is sufficient can only be determined after investigation, verification and even evidence collection. Article 12 of Decree No.94 stipulates that suppliers only need to provide inquiry letter and necessary supporting materials to raise questions. Even if the supplier's questioning evidence is insufficient, it should be rejected in the reply, not in the acceptance review stage.
It should be noted that there is a difference between "necessary" proof materials and "sufficient" proof materials. The necessary proof material is only a part of the necessary proof material to prove the truth and establishment of the doubt. Based on these evidential materials, it is not necessary to draw the conclusion that the doubts are true and established. And sufficient proof materials are all necessary proof materials to prove the truth and establishment of doubts. Based on these evidential materials, it is inevitable that the doubts are true and established.
8. If you don't tell the supplier, you can re-question.
After reviewing the inquiry letter and the materials submitted by the supplier, the purchaser or the agency entrusted by it thinks that the inquiry letter does not conform to the provisions of Article 12 of Decree No.94 or the necessary supporting materials have not been submitted, and the supplier can revise and supplement it and re-question it, it shall inform the supplier of the reasons for not meeting the acceptance conditions and the time for re-questioning.
9. After questioning the answer, accept the question of the answer itself.
For the same question, after the reply is completed, if the questioner has new ideas or new proof materials, he can only lodge a complaint and should not question the content of the reply. Article 20 of Decree No.94 has stipulated that the complaint made by the supplier based on the content of the query reply is a legal complaint.
Investigate and deal with misunderstandings
10, adopting "whoever advocates gives evidence", and only dealing with the materials provided by the questioner.
After receiving the inquiry, the purchaser or its entrusted agency misuses "who advocates who gives evidence", does not understand the specific situation, does not collect relevant materials in the procurement process, and only analyzes and processes the materials provided by the questioner.
"Who advocates who gives evidence" is one of the important evidence rules in civil litigation, which means that the parties in civil litigation have the obligation to provide evidence to prove their claims, otherwise they will bear the adverse consequences of not giving evidence. Because the people's court must remain neutral, the law stipulates the evidence rule of "who advocates who gives evidence". However, this principle does not apply to the handling of government procurement queries and complaints. Government procurement has certain administrative attributes. Suppliers are obliged to provide evidence clues when questioning, and buyers and agencies are also obliged to investigate and collect evidence. They should not shirk their responsibilities by saying "who advocates who gives evidence".
1 1. Only internal written materials are retrieved, and external certification materials are not retrieved.
The purchaser or its entrusted agency only collects the certification materials related to the inquiry from the materials formed by organizing the procurement project, and does not collect external certification materials or consult the relevant departments for evidence collection.
This misunderstanding is common because it is unilaterally understood that the purchaser or its entrusted institution "has no right to investigate". The purchaser or its entrusted agency does not have the power of administrative compulsory investigation when handling inquiries, but it is not impossible to investigate and collect evidence. It is the universal right of every organization to investigate and understand the situation. When it comes to the certification materials related to the inquiry, the purchaser or the agency entrusted by it has the right to know the situation from the relevant departments, or make a consultation request to the professional organization, requesting a written explanation or consultation statement of the situation. These are not compulsory investigations and have nothing to do with the statutory investigation power of the administrative department.
12. All information from the Internet will be rejected as a factual basis.
The information voluntarily disclosed by the government department on its website can be directly used as evidence for ascertaining the facts, and it does not need the seal of the government department to confirm. For example, the information publicized in the national enterprise credit information publicity system can be directly used as proof materials, and the information queried in Credit China Network and China Government Procurement Network also belongs to direct proof materials. The information on the enterprise's own website can be used as a reference for proof materials. Unless otherwise specified in the procurement documents, the information on the supplier's website cannot be used to deny the supplier's response information in the bidding documents (response documents).
13, completely rely on experts to deal with the problem.
The subject of questioning acceptance is the purchaser or its entrusted agency, not the bid evaluation expert. The role of evaluation experts in dealing with questions is only auxiliary, not decisive, and they have no right to decide whether the questions are true or false.
14. Proof materials illegally obtained by the questioner are not excluded.
If the information kept confidential according to law is taken as the factual basis for asking questions, the questioner shall be required to explain in writing the legal way to obtain relevant information and provide supporting materials. The purchaser or the agency entrusted by him shall exclude the certification materials identified as obtained by illegal means and shall not be used as the basis for ascertaining the facts.
Answer questions and misunderstandings
15, the answer is no doubt.
Answering questions is not aimed at the facts and requirements put forward by the questioner, but perfunctory and negative. Such a reply does not meet the requirements of article 15 of Decree No.94, and is not a legal reply.
16. Transfer the materials as a reply.
If the opinions of the winning supplier are forwarded to the skeptics, it will be regarded as a reply; Transfer the evaluation materials or opinions of the evaluation experts to the questioner as a reply; Pass the obtained certification materials to the questioner as a reply.
17, the reply did not explain the factual basis and legal basis.
For example, there is only one sentence "invalid query" or "invalid query", but there is no explanation on what facts, materials and legal basis to determine invalid query or invalid query.
18, no reply to the questioner's inquiry request.
When answering the questioner's query request, there was no response or evaluation. If the questioner asks to confirm that the bid is invalid, he fails to analyze whether the bid is invalid or not when answering. Such a reply does not conform to the provisions of article 16 of Law No.94.
19. Not all the questions have been answered.
I didn't answer all the facts and requirements put forward by the questioner, but chose some questioning situations to answer them.
20. Failing to inform the questioner of the right to complain.
Article 15 of Decree No.94 makes it clear that the answer to questions should include informing suppliers that they have the right to complain according to law.
2 1. The time of filing the complaint and the organ accepting the complaint were not informed.
Some replies only indicate that complaints can be made, but there is no specific time limit (for example, within/0/5 working days after the expiration of the legal reply). Some organs that do not stipulate to accept complaints only write complaints to the financial departments at the same level.
22. The supplier concerned was not informed of the reply.
Generally, multiple suppliers participate in government procurement activities, and the answers to questions raised by suppliers involve other suppliers participating in the same procurement activities. Therefore, other relevant suppliers should also be informed, especially the questions raised about the winning bid and the closing result.
23, reply to change the bid, record the transaction results.
Paragraph 2 of Article 16 of Decree No.94 stipulates that if the result of winning the bid or closing the transaction is changed due to the questioning reply, the purchaser or agency shall report the relevant information in writing to the finance department at the same level.
24. The agent will not inform the buyer after replying.
The agency accepts the entrustment of the purchaser to carry out procurement activities, and the procurement results shall be borne by the purchaser. In the process of query processing, although according to the principal-agent agreement, the agency has the right to handle and answer the queries raised by suppliers, and has the right to reply in the name of the agency alone, the contents and results of the reply should be informed to the purchaser.
25. Reply within the statutory time limit.
The inquiry shall be answered within seven working days from the date of acceptance, and the overdue reply is invalid. The questioner may lodge a complaint within fifteen working days after the expiration of the reply.
26. Give a positive or negative answer to uncertain facts.
If the purchaser or its entrusted agency still cannot judge whether the query is true according to the evidential materials provided by the questioner and the results of investigation and evidence collection, it shall make an unconfirmed and uncertain answer.
If the bid price is lower than the cost, because the cost is determined by the winning bidder, the cost itself may contain the business secrets of the winning bidder. Under normal circumstances, outsiders cannot accurately judge whether it is lower than the cost. For the question below cost, it is unreasonable to answer "below cost" or "not below cost". The correct answer should be: according to the proof materials provided by the questioner and the investigation and evidence collection, it is impossible to confirm whether the winning bid price is lower than the cost.
27, the report of the financial department as a reply.
If the questioner inquires about the false bid-winning materials provided by the winning bidder, and the purchaser or its entrusted agency verifies that the inquiry is true, it shall deal with the fact that the winning bidder provided false materials when replying to the inquiry. If the questioner asks to determine that the winning bid is invalid, it shall directly determine that the winning bid is invalid. Because the winning bidder provides false materials to win the bid, it needs to be reported to the financial department for administrative punishment, which is another case of administrative punishment. And the financial department should not be required to make administrative punishment as a query answer.
28. Reveal the commercial secrets of suppliers.
Article 53 of the Government Procurement Law stipulates that "... the contents of the reply shall not involve trade secrets". Article 43 of Decree No.94 also clearly stipulates this. According to the Anti-Unfair Competition Law, trade secrets refer to technical and commercial information that is not known to the public, has commercial value and is kept confidential by the obligee. However, according to the Regulations on the Implementation of the Government Procurement Law, the information to be disclosed is no longer a trade secret, such as quotation, unit price, contract price, service commitment, etc.
29. All true questions will be repurchased.
In order to improve the efficiency of procurement, Article 73 of the Government Procurement Law and Article 71 of the Regulations for the Implementation of the Government Procurement Law clearly stipulate that if the procurement parties violate laws and regulations in the procurement process, they should deal with them according to different situations, instead of re-purchasing. Article 16 of Decree No.94 also clarifies several situations in which the supplier's query is not established, or it is established but does not affect the winning bid and transaction results, and the query is established and affects or may affect the winning bid and transaction results. It is by no means a "one size fits all" requirement to restart government procurement activities.
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