Decree No. 94 of the Ministry of Finance of the People's Republic of China on Questioning and Complaining about Government Procurement

Ministry of Finance of the People's Republic of China

Ministry of Finance Order 94

The Measures for Questioning and Complaining about Government Procurement have been reviewed and approved by the Office of the Minister of Finance. It is hereby promulgated and shall come into force as of March 1, 2018.

　　Minister Xiao Jie

December 26, 2017

Measures for questioning and complaining about government procurement

Chapter 1 General provisions

Article 1 In order to regulate the questioning and complaint behavior of government procurement and protect the legitimate rights and interests of parties participating in government procurement activities, this method is formulated in accordance with the "Government Procurement Law of the People's Republic of China", "Implementation Regulations of the Government Procurement Law of the People's Republic of China" and other relevant laws and regulations.

Article 2 These measures apply to the raising and response of questions regarding government procurement, as well as the filing and handling of complaints.

Article 3 Government procurement suppliers (hereinafter referred to as suppliers) shall adhere to the principles of legality, compliance, honesty and credibility when raising questions and complaints.

Article 4 The response to questions and complaints regarding government procurement shall adhere to the principles of law and regulations, equal rights and responsibilities, fairness and impartiality, simplicity and efficiency.

Article 5 The purchaser is responsible for responding to supplier inquiries. If the purchaser entrusts a procurement agency to purchase, the procurement agency shall respond within the scope of the authorization.

The financial departments of the people's governments at or above the county level (hereinafter referred to as the financial departments) are responsible for handling supplier complaints in accordance with the law.

Article 6 Supplier complaints shall be handled by the local finance department according to the budget level of the purchaser.

Complaints related to cross regional joint procurement projects, where the purchaser belongs to the same budget level, shall be handled by the finance department specified in the procurement documents in advance. If there is no prior agreement, the finance department that received the complaint first shall be responsible for handling it; If the purchaser belongs to different budget levels, the finance department with the highest budget level is responsible for handling it.

Article 7 The purchaser and procurement agency shall specify in the procurement documents the method of receiving the inquiry letter, contact department, contact phone number, and mailing address.

The financial departments at or above the county level shall publish information on the ways of accepting complaints, contact departments, contact phone numbers, and mailing addresses on the government procurement information release media designated by the financial departments at or above the provincial level.

Article 8 Suppliers may entrust agents to question and file complaints. The power of attorney shall specify the name or title of the agent, the matters to be represented, specific powers, duration, and related matters. If the supplier is a natural person, they should sign by themselves; If the supplier is a legal person or other organization, it shall be signed or sealed by the legal representative and the main person in charge, and stamped with the official seal.

Agents who raise questions and complaints should submit a power of attorney signed by the supplier.

Article 9 For those who participate in government procurement activities in the form of a consortium, their complaints shall be jointly raised by all suppliers forming the consortium.

Chapter 2   Question raising and reply

Article 10 If a supplier believes that their rights and interests have been harmed by the procurement documents, procurement process, winning bid or transaction results, they may, within 7 working days from the date of knowing or should have known that their rights and interests have been harmed, raise a written question to the purchaser or procurement agency.

The procurement documents may require the supplier to raise a one-time challenge to the same procurement procedure within the statutory challenge period.

Article 11 The supplier who raises a question (hereinafter referred to as the questioning supplier) shall be a supplier involved in the procurement activities of the questioned project.

Potential suppliers who have obtained their questionable procurement documents in accordance with the law may raise questions about the documents. Those who question the procurement documents shall raise them within 7 working days from the date of obtaining the procurement documents or the expiration of the procurement document announcement period.

Article 12 Suppliers who raise doubts shall submit a questioning letter and necessary supporting materials. The questioning letter should include the following contents:

（1） The name or title, address, postal code, contact person, and contact phone number of the supplier;

（2） Doubt the name and number of the project;

（3） Specific and clear questions and requests related to the questions;

（4） Factual basis;

（5） Necessary legal basis;

（6） Date of raising the question.

If the supplier is a natural person, they should sign by themselves; If the supplier is a legal person or other organization, it shall be signed or sealed by the legal representative, main person in charge, or authorized representative, and stamped with the official seal.

Article 13 The purchaser and procurement agency shall not refuse to accept the questioning letter issued by the questioning supplier within the statutory questioning period. They shall respond within 7 working days after receiving the questioning letter and notify the questioning supplier and other relevant suppliers in writing.

Article 14 If a supplier questions the evaluation process, winning bid or transaction results, the purchaser or procurement agency may organize the original evaluation committee, competitive negotiation group, inquiry group or competitive negotiation group to assist in answering the questions.

Article 15 The questioning response shall include the following contents:

（1） Doubt the name or title of the supplier;

（2） Date of receiving the inquiry letter, name and number of the inquiry project;

（3） The specific content, factual basis, and legal basis of the questioning matter and questioning response;

（4） Notify the questioning supplier of their right to file a complaint in accordance with the law;

（5） Name of the respondent in question;

（6） Date of response to the query.

The content of the questioning response shall not involve trade secrets.

Article 16 If the purchaser or procurement agency believes that the supplier's doubts are not valid, or if they are valid but do not affect the winning bid or transaction results, they shall continue to carry out procurement activities; If it is believed that the supplier's questioning is valid and affects or may affect the winning bid or transaction results, the following situations shall be handled:

（1） If there are doubts raised about the procurement documents and the procurement activities can continue through clarification or modification in accordance with the law, the procurement activities shall continue after clarifying or modifying the procurement documents; Otherwise, the procurement documents should be modified and the procurement activities should be restarted.

（2） If there are doubts raised about the procurement process, winning bids or transaction results, and the qualified suppliers meet the statutory quantity, the winning or transaction suppliers can be determined separately from the qualified candidates. The winning or transaction suppliers shall be determined separately in accordance with the law; Otherwise, procurement activities should be restarted.

If the questioning response leads to changes in the winning bid or transaction results, the purchaser or procurement agency shall report the relevant situation in writing to the local finance department.

Chapter 3 Filing of complaints

Article 17 If a supplier is dissatisfied with the response of the purchaser or procurement agency, or if the purchaser or procurement agency fails to respond within the prescribed time, a complaint may be filed with the financial department specified in Article 6 of these Measures within 15 working days after the response period expires.

Article 18 When filing a complaint, the complainant shall submit a complaint letter and necessary supporting materials, and provide copies of the complaint letter according to the number of the complained purchaser, procurement agency (hereinafter referred to as the complained party), and suppliers related to the complaint matter. The complaint letter should include the following contents:

（1） The names, mailing addresses, postal codes, contact persons, and contact phone numbers of the complainant and the respondent;

（2） Explanation of the questioning and questioning responses, as well as relevant supporting materials;

（3） Specific and clear complaint issues and complaint requests related to the complaint issues;

（4） Factual basis;

（5） Legal basis;

（6） The date of filing the complaint.

If the complainant is a natural person, they shall sign in person; If the complainant is a legal person or other organization, it shall be signed or sealed by the legal representative, main person in charge, or authorized representative, and stamped with the official seal.

Article 19 The complainant shall file a complaint in accordance with the information content specified in Article 7, paragraph 2 of these Measures and in the manner prescribed by it.

The complainant shall meet the following conditions when filing a complaint:

（1） Questioning has been conducted in accordance with the law before filing a complaint;

（2） The content of the complaint letter complies with the provisions of these measures;

（3） Filing a complaint within the valid period of the complaint;

（4） The same complaint has not been handled by the financial department;

（5） Other conditions stipulated by the Ministry of Finance.

Article 20 The matters complained by suppliers shall not exceed the scope of the questioned matters, except for the complaint matters raised based on the content of the questioned response.

Chapter 4 Complaint handling

Article 21 After receiving a complaint, the financial department shall conduct an examination within 5 working days and handle it according to the following circumstances:

（1） If the content of the complaint does not comply with the provisions of Article 18 of these Measures, the complainant shall be notified in writing to make corrections within 5 working days of receiving the complaint. The notice of correction shall specify the items that need to be corrected and a reasonable deadline for correction. If the correction is not made within the deadline or still does not meet the requirements after correction, it will not be accepted.

（2） If the complaint does not meet the conditions stipulated in Article 19 of these Measures, the complainant shall be notified in writing within 3 working days that it will not be accepted and the reasons shall be explained.

（3） If the complaint is not under the jurisdiction of this department, the complainant shall be notified in writing within 3 working days to file the complaint with the department with jurisdiction.

（4） If the complaint complies with the provisions of Article 18 and Article 19 of these Measures, it shall be accepted from the date of receipt of the complaint letter, and within 8 working days after receiving the complaint, a complaint response notice and a copy of the complaint letter shall be sent to the respondent and other parties related to the complaint matter.

Article 22 The respondent and other parties related to the complaint shall provide written explanations to the financial department within 5 working days from the date of receiving the complaint response notice and a copy of the complaint letter, and submit relevant evidence, basis, and other relevant materials.

Article 23 The financial department shall, in principle, handle complaint matters through written review. When deemed necessary, the finance department may conduct investigations and collect evidence or organize cross examinations.

The finance department may entrust relevant units or third parties to conduct investigations, evidence collection, inspection, testing, and appraisal in accordance with laws, regulations, or their respective responsibilities and authorities.

The relevant parties shall be notified to be present during the cross examination, and a record of the cross examination shall be made. The cross examination record shall be signed and confirmed by the parties involved.

Article 24 When the financial department conducts investigations and evidence collection in accordance with the law, the complainant, the respondent, and the units and personnel related to the complaint shall truthfully report the situation and provide the relevant materials required by the financial department.

Article 25 If the complainant fails to provide relevant evidence, basis, and other relevant materials regarding the complaint matter that should bear the burden of proof, it shall be deemed that the complaint matter is not established; If the respondent fails to submit relevant evidence, basis, and other relevant materials as required by the complaint response notice, it shall be deemed that they have waived their right to explain and shall bear adverse consequences in accordance with the law.

Article 26 The financial department shall make a decision on the handling of the complaint within 30 working days from the date of receipt of the complaint.

Article 27 If the financial department needs to conduct inspection, testing, appraisal, expert review, or require the complainant to supplement materials when handling complaint matters, the time required shall not be counted in the complaint handling period.

The required time referred to in the preceding paragraph refers to the period from the date when the financial department issues relevant documents or correction notices to relevant units, third parties, and complainants to the date when relevant feedback documents or materials are received.

If the financial department conducts inspection, testing, appraisal, or expert review to relevant units or third parties, it shall inform the complainant of the required time.

Article 28 During the handling of complaint matters, the financial department may, depending on the specific circumstances, notify the purchaser and procurement agency in writing to suspend procurement activities. The suspension of procurement activities shall not exceed 30 days.

After receiving the notice of suspension of procurement activities, the purchaser and procurement agency shall immediately suspend the procurement activities. The procurement activities shall not be carried out until the statutory suspension period ends or the financial department issues a notice to resume the procurement activities.

Article 29 In the process of handling complaints, if any of the following situations occur, the financial department shall reject the complaint:

（1） After acceptance, it was found that the complaint did not meet the statutory acceptance criteria;

（2） The complaint lacks factual basis and is not established;

（3） The complainant fabricated facts or provided false materials;

（4） The complainant obtained proof materials through illegal means. If there are obvious doubts about the legality of the evidence source, and the complainant cannot prove that the method of obtaining it is legal, it shall be deemed as obtaining the proof materials through illegal means.

Article 30 If the financial department accepts a complaint and the complainant applies in writing to withdraw the complaint, the financial department shall terminate the complaint handling procedure and notify the relevant parties in writing.

Article 31 If the complainant's complaint about the procurement documents is verified by the financial department, the complaint shall be deemed established. If the confirmed complaint does not affect the procurement results, continue with the procurement activities; If it affects or may affect the procurement results, the financial department shall handle it according to the following situations:

（1） If the winning bidder or successful supplier has not been determined, they shall be ordered to restart the procurement activities.

（2） If the winning bidder or successful supplier has been determined but has not yet signed the government procurement contract, the winning bidder or successful supplier shall be deemed invalid and ordered to restart the procurement activities.

（3） If the government procurement contract has been signed but not yet fulfilled, the contract shall be revoked and the procurement activities shall be ordered to be resumed.

（4） If the government procurement contract has been fulfilled and causes losses to others, the relevant parties may file a lawsuit in accordance with the law, and the responsible person shall bear the liability for compensation.

Article 32 If the complainant's complaint about the procurement process or results is verified by the financial department, the complaint shall be deemed established. If the confirmed complaint does not affect the procurement results, continue with the procurement activities; If it affects or may affect the procurement results, the financial department shall handle it according to the following situations:

（1） If the winning bidder or successful supplier has not been determined, they shall be ordered to restart the procurement activities.

（2） If the winning bidder or successful supplier has been determined but the government procurement contract has not yet been signed, the winning bidder or successful bidder result shall be deemed invalid. When qualified suppliers meet the statutory quantity, if they can be selected from qualified candidates for winning bids or transactions, the purchaser shall be required to determine the winning or transaction suppliers in accordance with the law; Otherwise, it shall be ordered to restart the procurement activities.

（3） If a government procurement contract has been signed but not yet fulfilled, the contract shall be revoked. When qualified suppliers meet the statutory quantity, if they can be selected from qualified candidates for winning bids or transactions, the purchaser shall be required to determine the winning or transaction suppliers in accordance with the law; Otherwise, it shall be ordered to restart the procurement activities.

（4） If the government procurement contract has been fulfilled and causes losses to others, the relevant parties may file a lawsuit in accordance with the law, and the responsible person shall bear the liability for compensation.

If the complaint raised by the complainant regarding the invalidation of the bid is valid, the financial department shall determine that the invalidation of the bid is invalid.

Article 33 The financial department shall make a complaint handling decision and affix an official seal. The complaint handling decision shall include the following contents:

（1） The names, mailing addresses, etc. of the complainant and the respondent;

（2） The facts and relevant basis identified in the handling decision, as well as the specific handling decision and legal basis;

（3） Notify the relevant parties of their right to apply for administrative reconsideration, the administrative reconsideration authority and the deadline for applying for administrative reconsideration, as well as their right and deadline for filing administrative litigation;

（4） The date on which the processing decision was made.

Article 34 The financial department shall deliver the complaint handling decision to the complainant and the parties related to the complaint, and promptly announce the results of the complaint handling on the government procurement information release media designated by the financial department at or above the provincial level.

The delivery of the complaint handling decision shall be carried out in accordance with the provisions of the Civil Procedure Law of the People's Republic of China on delivery.

Article 35 The financial department shall establish a complaint handling file management system and cooperate with relevant departments to conduct supervision and inspection in accordance with the law.

Chapter 5 Legal liability

Article 36 If the purchaser or procurement agency falls under any of the following circumstances, the financial department shall order them to make corrections within a specified period of time; If the circumstances are serious, a warning shall be given, and the directly responsible person in charge and other directly responsible personnel shall be punished by their administrative department or relevant authorities and notified:

（1） Reject the challenge letter issued by the supplier during the statutory challenge period;

（2） Failure to respond to doubts or responses that are clearly inconsistent with facts, and inability to provide reasonable explanations;

（3） Refusing to cooperate with the finance department in handling complaints.

Article 37 If the complainant makes three or more unfounded complaints within 12 months nationwide, the financial department shall include them in the list of records of misconduct.

If the complainant engages in any of the following behaviors, it is considered a false or malicious complaint, and will be included in the list of bad behavior records by the financial department. They will be prohibited from participating in government procurement activities for 1 to 3 years:

（1） Fabricating facts;

（2） Providing false materials;

（3） Obtaining proof materials through illegal means. If there are obvious doubts about the legality of the evidence source, and the complainant cannot prove that the method of obtaining it is legal, it shall be deemed as obtaining the proof materials through illegal means.

Article 38 If the financial department and its staff violate the provisions of these Measures and engage in other illegal and disciplinary behaviors such as abuse of power, dereliction of duty, and favoritism in the performance of their complaint handling duties, they shall be held accountable in accordance with relevant national regulations such as the Government Procurement Law of the People's Republic of China, the Civil Service Law of the People's Republic of China, the Administrative Supervision Law of the People's Republic of China, and the Implementation Regulations of the Government Procurement Law of the People's Republic of China; Those suspected of committing crimes shall be transferred to judicial authorities for handling in accordance with the law.

Chapter 6 Supplementary Provisions

Article 39 Doubt letters and complaint letters shall be written in Chinese. The template for questioning letters and complaint letters shall be developed by the Ministry of Finance.

Article 40 If the relevant parties provide foreign language documentary evidence or foreign language audio-visual materials, they shall attach a Chinese translation, which shall be stamped by the translation agency or signed by the translator.

The evidence formed outside the territory of the People's Republic of China provided by the relevant parties to the financial department shall indicate its source, be certified by a notary public in the country where it is located, and authenticated by the Chinese embassy or consulate in that country, or fulfill the certification procedures stipulated in the relevant treaties between the People's Republic of China and the country where the evidence is located.

The evidence provided by the relevant parties and formed within the Hong Kong Special Administrative Region, Macao Special Administrative Region, and Taiwan region shall go through the relevant certification procedures.

Article 41 The financial department shall not charge any fees to the complainant or the respondent for handling complaints. However, the third-party inspection, testing, identification and other expenses incurred in handling complaints shall be advanced by the supplier who submitted the application. After the complaint handling decision clarifies the responsibilities of both parties, the party responsible shall bear the burden according to the principle of "whoever is at fault shall bear the responsibility"; Both parties are responsible and should reasonably share the burden.

Article 42 The starting date of the period specified in these Measures shall not be counted in the period. If the last day of the period expires on a holiday, the first day after the holiday shall be deemed as the expiration date of the period. The period does not include transit time. If the questioning and complaint documents are mailed before the expiration date, they will not be considered expired.

The terms "above" and "below" specified in these regulations all include this number.

Article 43 Relevant insiders such as financial departments, purchasers, and procurement agencies shall keep confidential state secrets, trade secrets, personal privacy, and information that is not publicly disclosed according to law that they become aware of during the process of questioning, responding, and handling complaints.

Article 44 Provincial financial departments may formulate specific implementation measures in accordance with these Measures.

Article 45 These Measures shall come into effect on March 1, 2018. The "Measures for Handling Complaints against Government Procurement Suppliers" (Ministry of Finance Order No. 20) issued by the Ministry of Finance on August 11, 2004, are simultaneously abolished.