For a financial investment project, the final settlement price stipulated in the contract is subject to review. After the completion of the project, the financial evaluation center entrusts the cost agency to audit, and requires that the final audit value shall not exceed 110% of the winning bid amount. The reason is: Article 67 of the "Regulations for the Implementation of the Procurement Law of the People's Republic of China" If the purchaser has any of the following circumstances, the financial department shall order it to make corrections within a time limit, give a warning, and punish the directly responsible person in charge and other directly responsible personnel in accordance with the law, and notify it: (5) The procurement amount of additional goods, projects or services with the same subject matter as the contract in the performance of the procurement contract exceeds 10% of the procurement amount of the original contract.
Is it reasonable?
Keywords: financial investment review
Obviously, the requirements of the Financial Investment Review Center are very unreasonable, and the Financial Investment Review Center has misunderstood two different legal relationships, one is the administrative supervision legal relationship implemented by the Procurement Law, and the other is the civil legal relationship.
Article 67 of the Regulations for the Implementation of the Procurement Law: "In any of the following circumstances, the financial department shall order the purchaser to make corrections within a time limit, give a warning, and punish the directly responsible person in charge and other directly responsible personnel in accordance with the law, and notify him: (5) The purchase amount of additional goods, projects or services with the same subject matter as the contract in the performance of the procurement contract exceeds 10% of the procurement amount of the original contract;If the project has been completed and accepted, then it can no longer be corrected at the completion acceptance stage, and can only be given a warning or other administrative punishment. The responsibilities seen in the "Regulations for the Implementation of the Procurement Law" are the responsibilities of administrative law and the administrative responsibility of internal sanctions. The two parties to this legal relationship of administrative supervision are respectively the administrative subject and the administrative counterpart, and the rights and obligations of third parties are not affected.
In the previous question, it often involves the question of how much more than the amount of the project change needs to be tendered, and how much the additional procurement part needs to be tendered, and the "Regulations for the Implementation of the Procurement Law" stipulates that the additional procurement amount in the performance of the procurement contract exceeds a certain amount and needs to bear administrative responsibility.
When conducting financial evaluation, the Financial Investment Review Center shall conduct the review based on the principle of legality. The core of the principle of legality is to comply with the provisions of the Civil Code. The Civil Code regulates the personal relationship and property relationship between equal subjects, so when procurement, the civil legal relationship is formed between the purchasing unit and the employing unit rather than the administrative legal relationship. Therefore, the financial review department should not be bound by the "Regulations for the Implementation of the Procurement Law" during the review, but should review the actual completion settlement amount of the contractor in accordance with the contract based on the contract.
When the Financial Investment Review Center finds that the settlement amount of the completion is higher than 10% of the winning bid amount, the Financial Investment Review Center needs to investigate the responsibility of the relevant personnel to the relevant departments, instead of using the attitude of preventing administrative liability to limit the settlement amount in the civil contract. This practice not only violates the principle of authenticity of financial investment review, but also violates the principle of strict compliance with contracts in the Civil Code.
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