The legal situation of single-source procurement methods

"Procurement practice, single-source procurement mode of identification of the existence of vague and ambiguous, unclear boundaries, the budget unit to change the single-source procurement mode declaration process is not very standardized, the single-source procurement mode of approval and audit is also more difficult to grasp, for which we have issued a "notice on strengthening the management of single-source procurement" (hereinafter referred to as the "Notice"), and to refine specific requirements To improve the efficiency of the implementation of government procurement." Hainan Provincial Department of Finance government procurement related person in charge of the introduction. "Notice" pointed out that the single-source procurement has four applicable circumstances:

First, only from the sole supplier of procurement. According to "Regulations for the Implementation of the Government Procurement Law," Article 27, due to the use of irreplaceable patents, proprietary technology, or public **** service projects with special requirements, resulting in only one particular supplier from the procurement, you can use a single source procurement.

Second, unforeseen emergencies occur, can not be procured from other suppliers. Market supply capacity, supply time to meet emergency needs, the purchaser shall not be excluded from competition due to emergency procurement. Due to the lack of reasonable planning by the procurer of the project with the urgency of the project does not have unforeseeable, does not belong to the application of this provision.

Third, it is necessary to ensure consistency of the original procurement project or service support requirements, the need to continue to purchase from the original supplier, and the total amount of funds for additional purchases does not exceed the original contract amount of ten percent of the purchase. The subject of additional purchases can be different from the original procurement program, but need to comply with the consistency of the original procurement program or supporting.

Fourth, the failure of open tendering and other changes to a single source procurement. Open tendering and other ways to fail and bidding (response) after the end of the deadline to participate in the bidding (response) of only one supplier, or after qualification examination to meet the eligibility conditions of only one supplier, or in the evaluation of the qualifications during the evaluation of only one supplier, need to be changed to a single-source procurement method.

According to the "Notice", the use of irreplaceable patents, proprietary technology that can only be procured from a particular supplier of the project, the use of single-source procurement, need to meet three conditions:

First, the objective positioning of the project function to determine the need to use the specified patents, proprietary technology or services, rather than the subjective requirements of the purchaser. Just because the project is technically complex or technically difficult, can not be used as a single source procurement.

Second, the use of the project patents, know-how or services are irreplaceable. Functional positioning of the project must use specific patents, know-how or services, and there is no alternative technical solutions that can achieve the same requirements of the project functional positioning. If you can use different patents, know-how or services to replace, can meet the same or similar project functional positioning of the technical requirements of the target, and does not affect the quality of the project and the use of efficiency, can not be used in a single source procurement method to determine the supplier.

Third, because the product or production process patents, proprietary technology or services with exclusivity, resulting in the implementation of other suppliers or provide, only by a particular supplier.

"Notice" clearly, the determination of a single source of procurement is divided into the amount of public bidding to achieve the standard (before the start of procurement activities), does not meet the amount of public bidding standard (before the start of procurement activities), public bidding and other failures to change to a single source of procurement of the three cases, and for different situations, whether to invite professionals to the procurement of the situation can only be from a particular supplier to produce a specific argumentation Opinions, whether the need for publicity in the Hainan Provincial Government Procurement Network, whether the need for the approval of the financial sector and so on has been clarified.

"Notice" also clarifies the single-source procurement application information and process, up to the amount of public bidding standards for government procurement projects, the purchaser intends to use a single-source procurement, by the purchaser reported by the competent budgetary unit stamped consent to apply for approval of the same level of the financial sector, and submit the following materials: approval form for the approval of changes in the mode of government procurement, the amount of the project budget, budgetary approval document or the source of funds. Proof of source of funds, argumentative information, publicity materials and other materials that the financial sector think need to be provided.

In addition, the Hainan Provincial Department of Finance also provides a single-source procurement in the form of an annex to the public announcement of objections to the validation form, the approval form for changes in the mode of government procurement, single-source procurement consultation record reference template.

The following is the full text of the Notice

Hainan Provincial Department of Finance on strengthening the management of single-source procurement notice

Provincial budget units, cities and counties Finance Bureau, the centralized purchasing agency, the social agency:

In order to further strengthen the management of single-source procurement, according to the "People's Republic of China *** and the State Government Procurement Act" and its implementing regulations and other laws and regulations, is now on the relevant matters of the notice As follows:

First, the application of single-source procurement

(a) can only be procured from a single supplier. According to "Regulations for the Implementation of the Government Procurement Law," Article 27, due to the use of irreplaceable patents, proprietary technology, or public **** service projects with special requirements, resulting in only one particular supplier from the procurement, you can use a single source of procurement.

1. The use of irreplaceable patents, proprietary technology that can only be procured from a particular supplier of the project to use single-source procurement, the need to meet the conditions of three aspects: First, the objective positioning of the project function to determine the need to use the specified patents, proprietary technology or services, rather than the subjective requirements of the purchaser. Simply because the project is technically complex or technically difficult, can not be used as a single-source procurement reasons. Second, the use of the project patents, know-how or services are irreplaceable. Functional positioning of the project must use specific patents, know-how or services, and there is no alternative technical solutions that can meet the same requirements of the functional positioning of the project. If different patents, know-how or services can be used as substitutes to meet the same or similar technical requirements of the project's functional positioning, without affecting the quality and efficiency of the project, single-source procurement cannot be used to identify suppliers. Third, because the product or production process patents, proprietary technology or services have the exclusivity, resulting in the inability to be implemented or provided by other suppliers respectively, can only be provided by a particular supplier.

2. Public **** service projects with special requirements for single-source procurement, taking into account the special nature of public **** service projects and the transformation of government functions, combined with expert opinion, to determine whether the procurement for a particular supplier.

3. State administration of the procurement project has a unified planning and implementation requirements, has unified the organization of government procurement and require the buyer to a specific supplier procurement.

(ii) the occurrence of unforeseen emergencies can not be procured from other suppliers. Market supply capacity, supply time to meet emergency needs, the purchaser shall not be excluded from competition due to emergency procurement. Due to the lack of reasonable planning by the procurer to cause the project has an urgent nature, does not have the unforeseeable, does not belong to the application of this article.

(C) must ensure the consistency of the original procurement project or service support requirements, the need to continue to purchase from the original supplier, and the total amount of funds for additional purchases does not exceed the original contract amount of ten percent of the procurement. The subject of additional purchases can be different from the original procurement program, but need to comply with the consistency of the original procurement program or supporting.

(D) the failure of open tendering and other changes to the single-source procurement. Open tendering and other ways to fail and bidding (response to the end of the deadline to participate in the bidding (response to the supplier only one, or after qualification examination to meet the eligibility requirements of only one supplier or in the evaluation of the period of qualified suppliers only one, need to be changed to a single-source procurement methods.

Second, single-source procurement to determine

(a) to reach the amount of open tendering standards (before the start of procurement activities)

1. In line with the first paragraph of Article 1 of this notice (a category 1 and 2, paragraph (c) of the applicable circumstances and reach the amount of open tendering standards for government procurement projects, the purchaser intends to use a single-source procurement, reported to the same level of the finance department for approval before, shall invite Professionals can only be procured from a particular supplier to issue a specific argumentation Each professional should be issued separately, the argumentation should be complete and clear. Professionals to form the argumentation group should be composed of more than three odd, professionals can be randomly selected from the government procurement evaluation expert database, can also be selected by the purchaser, selected by themselves, in principle, should be selected from outside the unit. Professionals and single-source suppliers have "Regulations for the Implementation of the Government Procurement Law," the provisions of Article 9 of the relationship of interest, should be recused. Professional demonstration of the purchaser in Hainan Province, the government procurement online publicity, publicity period of not less than five working days, the content of the publicity should include:

(1) the purchaser, the name and content of the procurement project;

(2) the goods or services to be procured to the description;

(3) the use of a single-source procurement method of the reasons for the description;

(4) the proposed name of the only supplier

(5) the specific argumentation of the professionals on the uniqueness of the relevant supplier due to patents, proprietary technology and other reasons, as well as the names, work units and titles of the professionals;

(6) the duration of the publicity;

(7) the purchaser, the purchasing agent, the financial sector's contact address, contact person and contact telephone number.

Any supplier, unit or individual on the use of single-source procurement methods of publicity have objections, can be in the publicity period will be written feedback to the purchaser, the purchasing agent, and at the same time copied to the financial sector at the same level. Purchaser, the procurement agency to receive the use of single-source procurement method of publicity after the objection, shall, within five working days after the expiration of the publicity period, the organization of additional argumentation reference template see Annex 1)), after the argumentation that the objection is established, it shall be taken in accordance with the law of the other procurement methods; after the argumentation that the objection is not established, it shall be objected to the views of the argumentation and the situation of the publicity of the same level of the financial sector. Purchaser, the procurement agency shall supplement the conclusion of the demonstration to inform the dissenting suppliers, units or individuals.

2. In line with the first paragraph (a) of Article 1 of this Notice, Category 3, paragraph (b) of the applicable circumstances and the amount of public bidding to meet the standards of government procurement projects, the purchaser intends to use a single-source procurement, no need to invite professionals to issue a validation opinion, no need to be publicized in the Hainan Provincial Government Procurement Network, but should be announced in the completion of the procurement activities.

(B) does not meet the amount of open tendering standards (before the commencement of procurement activities)

1. In line with the first paragraph of Article 1, paragraph 1, categories 1 and 2, paragraph (c) of the applicable circumstances and does not meet the amount of open tendering standards of public procurement projects, the procurer intends to use single-source procurement should invite professionals to only be able to procure from a particular supplier to issue a specific argumentative opinion. No need to publicize the Hainan Provincial Government Procurement Network, without the approval of the financial sector.

2. In line with the first paragraph (a) of Article 1 (a) of this Notice, Category 3, paragraph (b) of the applicable circumstances and does not meet the amount of open tendering standards for government procurement projects, the purchaser intends to use a single-source procurement, do not need to invite professionals to issue a validation opinion, without the need for publicity in the Hainan Provincial Government Procurement Network does not need to obtain the approval of the financial sector.

Meet the first paragraph (d) of Article 1 of this notice of the applicable circumstances and to reach the amount of open tendering standards for government procurement projects, the purchaser intends to use a single-source procurement, in the report of the financial sector before the approval of the evaluation should be organized to assess the experts on the procurement documents do not have the unreasonable terms and conditions or the procurement process of lawful compliance with the issuance of a specific argumentation Opinions to provide suppliers to challenge the situation, and the proposed use of a single source of the reasons and the name of the supplier in the Hainan Provincial Government Procurement Online publicity for not less than five working days. After the approval of a single source, the purchaser shall not make substantive changes to the subject matter of the procurement and related requirements.

Third, a single source of procurement application information and process

Reach the amount of public bidding standards for government procurement projects, the purchaser intends to use a single source of procurement, reported by the purchaser of the competent budgetary unit stamped consent to apply for approval of the same level of the financial sector and submit the following materials:

1. Approval of the change in the mode of government procurement form (Attachment 2). Approval form should contain the following: the name of the budget unit, the name of the procurement project, project overview and other basic project information; application for single-source procurement and the reasons for the description of the proposed name of the sole supplier and other content; the competent budgetary unit agreed to the opinion and seal.

2. Project budget amount, budget approval documents or proof of source of funds.

3. Argumentative information. More than three professionals on the relevant suppliers due to patents, proprietary technology and other reasons for the uniqueness of the specific argumentation, as well as the names of professionals, work units and titles. Professionals can only be procured from the only supplier of the argument should be complete, clear, clear, based on a sound and reasonable, unclear or ambiguous or insufficient basis for the opinion is invalid, does not have the validity of the argument.

4. Publicity materials. In Hainan Provincial Government Procurement Network issued by the proposed single-source procurement of publicity materials and publicity during the period of no objection or objection is not established.

5. The financial sector that need to provide other materials.

Belonging to the first paragraph of Article 1 of this notice (a category 1 and category 2, (c) the application of the situation, you need to provide all of the above information; belonging to the first paragraph of Article 1 of this notice (a) the application of category 3 in addition to providing 1, 2, 5 information, but also need to provide the state administrative departments to require the purchaser to procure from a particular supplier of the written documents; belonging to the first paragraph of the application of the second of this notice, except for the following In addition to the information provided in 1, 2 and 5, it is also necessary to provide written confirmation of the time and time of completion of the tasks assigned by the competent authorities at the higher level or by the government at the current level; in the case of the applicability of article 1 (d) of this Notice, in addition to the information provided in 1, 2, 4 and 5, it is also necessary to provide the purchaser and the purchasing agent with the procurement documents and the procurement process, whether there are any suppliers to challenge the challenge and the handling of challenges to the statement, as well as the information provided by the evaluating experts on the procurement documents and the procurement process. Evaluation experts issued by the procurement documents are not unreasonable terms or the procurement process is legal and compliant argumentation.

Fourth, the implementation of single-source procurement

(a) Organization of consultations. Purchasers, procurement agencies should be organized with relevant experience in the establishment of a procurement team of professionals, and suppliers to agree on a reasonable transaction price and to ensure the quality of the procurement project. Procurement team should prepare a record of consultations (see annex 3 for reference template), and signed by all personnel of the procurement team. Record of consultations include:

1. According to "Government Procurement non-tendering procurement methods" (Ministry of Finance Decree No. 74) Article 38 of the public notice, the public notice of the situation.

2. Date and place of consultation, the list of procurement staff.

3. Suppliers to provide the cost of the subject matter of the procurement, the contract price of similar projects, as well as related patents, proprietary technology and other information.

4. The main terms of the contract and the price agreed.

(ii) determine the transaction. Purchasers to complete the single-source consultations on their own or receive a record of consultations submitted by the purchasing agent within five working days after the results of consultations to determine the transaction supplier.

(c) Publication of the announcement. Purchaser or procurement agency shall determine the date of the supplier of the transaction within two working days from the date of the Hainan Provincial Government Procurement Network announcement of the results of the transaction, and at the same time issued a notice of the transaction.

(d) sign the contract. Purchaser and the successful supplier shall be issued within 30 days from the date of the notice of the transaction, in accordance with the matters determined by the procurement documents to sign a government procurement contract.

(v) contract announcement. The purchaser shall sign the contract within 2 working days from the date of the contract will be announced in the Hainan Provincial Government Procurement Network, except those involving state secrets, commercial secrets.

(F) performance acceptance. Purchaser, the purchasing agent shall, in accordance with the provisions of the government procurement contract organization performance acceptance, and timely payment.

V. Other

(a) a single source to fulfill the term in principle not more than 1 year, laws and regulations or provincial and ministerial documents have special provisions.

(2) The approval of the use of single-source procurement method of government procurement projects, should also be in the budget management integration system for government procurement plans for the record.

(c) This notice involves the confirmation of the results of the procurement, contract signing and information disclosure of the time period, the state or the province put forward a higher time limit requirements, according to the implementation of the higher requirements.

(D) classified government procurement, universities and research institutes to purchase scientific research equipment, single-source management of other provisions, from its provisions.

(e) This notice shall come into force on April 1, 2022, and shall be valid for five years, and the "Interim Measures for the Management of Single-Source Procurement at the Provincial Level in Hainan Province" (Qiong Cai Cai [2018] No. 91) shall be repealed at the same time.

Annexes:

1. Single-source procurement public notice of objections to the validation form (reference template)

2. Approval form for changes in the mode of government procurement

3. Single-source procurement consultation record (reference template)

Hainan Provincial Department of Finance

February 10, 2022