Article 48 of the Procurement Law clearly stipulates that with the consent of the purchaser, the winning bidder and the contractor may perform the contract by subcontracting in accordance with the law.
However, in procurement practice, there are many problems arising from subcontracting. Today, I will sort out some of the Ministry of Finance's answers to the subcontracting problem, I hope it can help you!
1. PPP projects (engineering construction projects) implement the policy, in accordance with Article 8 of the Administrative Measures for Promoting the Development of Small and Medium-sized Enterprises through Procurement (Treasury 2020 No. 46), 30% of the total budget is reserved for small and medium-sized enterprises for procurement, of which the proportion reserved for small and micro enterprises is 60%, and the measures are to require the first business that obtains the procurement contract to subcontract the above proportion in the procurement project to one or more small and medium-sized enterprises; In accordance with Article 12, if the procurement documents clearly require the contract to be subcontracted, it is clear that the contract amount of the SME in the subcontracting intention agreement shall reach the above proportion; In accordance with Article 13, the declaration letter of the small and medium-sized enterprises that won the bid shall be disclosed; In accordance with article 14, the agreement of intent to subcontract should be an integral part of the procurement contract. Questions: 1. Whether the name of the small and medium-sized enterprise in the subcontracting intention agreement submitted in the bidder's bidding documents needs to be clarified; 2. Whether the subcontractor needs to fill in the declaration letter of the small and medium-sized enterprise; 3. The PPP project contains a number of engineering construction projects, according to the provisions of the mandatory bidding, the project that reaches the bidding scale must be tendered, how can the subcontractor in the bidding documents of the above-mentioned bidders be determined?
The National Treasury Department replied:
1.The bidder's subcontracting intention agreement needs to specify the name of the subcontracted enterprise;
2.The bidder's SME declaration letter needs to fill in the name of the subcontractor clearly;
3.If a PPP project includes multiple engineering construction projects, the policy requirements shall be implemented in different specific projects.
2. Tao holds 98% of the shares of Company A and 60% of the shares of Company B, and Tao is not a legal person of the two companies. Can two small enterprises A and B form a consortium to participate in a procurement project specifically for small and medium-sized enterprises (the project is subject to consortium bidding)? Does this situation belong to Article 8 of the Administrative Measures for Promoting the Development of Small and Medium-sized Enterprises through Procurement, which - small and medium-sized enterprises that form a consortium or accept subcontracts shall not have a direct holding or management relationship with other enterprises and subcontractors in the consortium?
The National Treasury Department replied:
In the case mentioned in the message, two small enterprises A and B can form a consortium to participate in procurement activities specifically for small and medium-sized enterprises, which does not belong to the prohibited circumstances stipulated in Article 8 of the Administrative Measures for Promoting the Development of Small and Medium-sized Enterprises through Procurement.
3. In the first procurement practice, it is often encountered that the purchaser intentionally or unintentionally does not subcontract in accordance with the classification of the items in the "Classification Catalogue of Procurement Items", and packages the procurement objects of different industries or fields into a large package for procurement, for example, the school will collectively package the different categories of goods required by the school into a project with the same package number for procurement, which involves different categories of goods, such as office furniture, teaching aids, electronic computer equipment, electrical equipment, kitchen equipment, School security facilities and equipment and so on to choose a variety of package procurement. Then set the evaluation factors and evaluation standards of each category in the bidding documents, such as test reports and qualification certificates. Today, the socialized division of labor is becoming more and more refined, as a professional business of a certain category, it is obviously difficult to meet the bidding requirements of this cross-category project, so that it is difficult to participate in such procurement activities, which is obviously unreasonable and excludes competition, and even the extraction of review experts is difficult to classify, but the specific violation of the law is not very clear, what are the specific legal provisions of the procurement that are violated in this case?
The National Treasury Department replied:
The situation described in the message does not violate the relevant provisions of procurement.
4. The bidding documents of a ** procurement project stipulate that subcontracting is not allowed, and the winning bidder is a group company, which has set up a number of wholly-owned subsidiaries (such as A1, A2, A3...... across the countryIn the execution of the project, Group A uses part of the personnel, equipment and sites of its wholly-owned subsidiaries A1, A2 and A3 for the smooth implementation of the project. Or can it be understood as labor dispatch?
The National Treasury Department replied:
* After winning the bid, the contractor shall sign a procurement contract with the purchaser in its own name, and perform the contract in accordance with the law and shall not subcontract the contract.
5. In the subcontracting procurement of the ** procurement project, the ** merchant only participated in package 1 and did not participate in package 2. If the merchant believes that the procurement result of package 2 has damaged its rights and interests, please ask: does the merchant have the interest to challenge and complain about the procurement result of package 2?
The National Treasury Department replied:
According to the provisions of Article 11 of the Measures for Procurement Challenges and Complaints (Decree No. 94 of the Ministry of Finance), if the procurement result is questioned, the supplier must have participated in the procurement activities of the challenged project. The ** merchants who have not participated in the procurement activities of Package 2 are not qualified to question and complain about the procurement results of Package 2.
6. The "* Procurement Law" stipulates that ** institutions can charge registration information fees, and most of the ** institutions in Sichuan are charged according to the package in the registration, such as 6 packages for a project, the registration is 300 yuan, and the qualification requirements are the same.
The National Treasury Department replied:
According to the Administrative Measures for Bidding and Bidding for the Procurement of Goods and Services (Order No. 87), the price of the bidding documents shall be determined in accordance with the principle of making up for the cost of production and mailing, and shall not be for profit.
7. The budget of a procurement project is 1.2 million yuan, but the purchaser reasonably divides the project into two packages of procurement according to the service area, and the budget of each package does not exceed 1 million yuan.
The National Treasury Department replied:
If the project of the same item or category under the same budget item mentioned in the message reaches the decentralized procurement limit, it shall be divided into two procurement packages due to different service areas, and the procurement shall be carried out in accordance with the relevant provisions of ** procurement in accordance with the law.
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