Government procurement of imported products recognized
119 Article 3 provides that the so-called imported products refers to the Chinese Customs clearance into the territory of China and produced outside the customs. That is, imported products need to meet the three conditions, one is through the Chinese Customs declaration; the second is the inspection and release into the territory of China; the third is produced outside the customs. On the customs territory and special customs supervision area products recognized, "the General Office of the Ministry of Finance on government procurement of imported products management issues related to the notice" (Finance Office of the library [2008] No. 248, hereinafter referred to as "No. 248" ) Article 2 states that According to the "People's *** and the State Customs Law" According to the "People's *** and the State Customs Law". Article 2 provides that, according to the provisions of the Customs Law of the People's Republic of China (hereinafter referred to as the Customs Law), the current customs territory of China refers to the administrative jurisdiction of the People's Republic of China (hereinafter referred to as the Customs Law), and excludes Hong Kong, Macao, and Taiwan, such as the Golden Horse, and other separate customs territories. Bonded zones, export processing zones, bonded port zones, Zhuhai Park of Zhuhai-Macao cross-border industrial zone, the Chinese side of the China-Harbin Khorgos International Border Cooperation Center, comprehensive bonded zones and other areas, for the Customs Special Supervision Areas, which are only in the customs tariff treatment and trade control of the implementation of special policies that are different from the rest of the territory of China's Customs, but is still part of the People's Republic of China*** and State Customs areas, the customs in accordance with the Customs Law. Customs supervision is carried out in accordance with the Customs Law. Therefore, all the products produced or processed by enterprises in the special customs supervision area (including imported materials from abroad) and sold to other areas within the country are not regarded as imported products under government procurement. Special customs supervision areas from abroad, and then after customs clearance procedures from the special customs supervision areas into other parts of the territory of the product, should be recognized as imports. In addition, 248 Article 3 provides, after many flows, can not provide customs declaration of the product, should be in accordance with the following methods of verification: (a) through normal channels of imported products, regardless of the number of flows within the territory, although the intermediate commercial link does not retain the import declaration of documents, but through the layers of backward, and ultimately find the import agent or import consignee, so that you can check with the Customs import declaration, the import agent or import consignee, the import agent can be found. Thus, you can query the Customs record of import declarations. This method is generally applicable to production equipment, machinery, automobiles and other bulk commodities. (B) through the smuggling of illegal imports of products, due to the lack of import declarations, there is no record of import declarations, therefore, should be through the goods or their packaging and other evidence of origin marking to indirectly prove that it is produced outside the product. SecondGovernment Procurement Imported Products Approval Procedures
According to the provisions of Article 248 of the Fifth and Sixth, purchasers to purchase imported products, must be in the beginning of the procurement activities before the application to the financial sector and obtain the approval of the financial sector review and approval before the procurement activities. Procurement activities. Procurement activities before the commencement of the procurement activities without obtaining the consent of the financial sector to carry out procurement activities, as a refusal to purchase imported products, should be made clear in the procurement documents do not allow imported products to participate in the provisions. Not clearly stipulated in the procurement documents do not allow the participation of imported products, also regarded as a refusal to participate in imported products. Procurement activities only after the start of the organization reported to the financial sector to review and approve the procurement activities, is a violation. The financial sector audit agreed to purchase imported products, should be specified in the procurement documents can be purchased imported products, but if the information asymmetry and other reasons, there are still to meet the demand for domestic products to participate in the procurement competition, the purchaser and its commissioned by the purchasing agent shall not be restricted, should be in accordance with the principle of fair competition in the implementation of the procurement. For the implementation of the agreement to supply the government centralized purchasing directory of products, centralized purchasing agency in the organization of procurement, can not limit the imported products on the shortlist, but the purchaser in the procurement of imported products on the shortlist before the need to report to the financial sector to review and agree. For non-agreed supply of government centralized purchasing directory products, the purchaser did not issue the financial sector agreed to purchase imported products, centralized purchasing agencies are not allowed to organize the procurement of imported products.According to the different types of imported products, the purchaser to submit different materials, as follows:
First of all, the 119th Article VIII of the general situation provides that the purchaser reported to the financial sector to review, should be issued The following materials: (a) "Government Procurement of Imported Products Application Form"; (b) on the encouragement of imported products of national laws and regulations, copies of policy documents; (c) imported products belong to the industry of the municipalities, autonomous regions above the competent department issued by the "Government Procurement of Imported Products belonging to the competent department of the industry opinion"; ( ( 4) expert group issued by the "Government Procurement of Imported Products Expert Opinion". Secondly, No. 119 of the ninth, tenth, eleventh on the other circumstances were stipulated: First, purchasers intend to purchase imported products belonging to national laws and regulations and policies to encourage the importation of products, in the report of the financial sector to review, it should be issued No. 119 of the Article VIII, paragraph (a), paragraph (b) of the material ; second Procurers intend to purchase imported products belonging to national laws and regulations and policies expressly provide for restrictions on imports of products, in the report of the financial sector review, should be issued No. 119 Article VIII (a), (c) and (d) materials ; Procurers intend to purchase the national restrictions on imports of major technology and equipment and major industrial technology, should be issued with the Development Reform Commission's Opinions ; Procurers intend to purchase state restrictions on the import of major scientific instruments and equipment, should be issued by the Ministry of Science and Technology ; Thirdly, Procurers intend to purchase other imported products, in the report of the financial sector for examination and approval, it should be issued 119 Article VIII, paragraph (a) of the material, and at the same time, paragraph (c) or paragraph (d) of the material. (c) or (d) at the same time.
Opinion on the competent authorities of the industry,
248 No. Article IV provides that the purchaser purchases products belonging to the national restrictions on imports of products, in addition to the need to set up a district of municipalities, autonomous prefectures above the people's government issued an expert opinion of the financial sector, but also to be issued at the same time the product belongs to the competent authorities of the industry's opinion, which the product belongs to the national restrictions on imports of major technological equipment and equipment and the autonomous regions of the People's Government, the views of the competent authorities of the industry. Restrictions on imports of major technical equipment and major industrial technology, should be issued by the Development and Reform Commission's opinion; belongs to the national restrictions on imports of major scientific instruments and equipment, should be issued by the Ministry of Science and Technology's opinion. When the administrative department of the purchaser is also the competent department of the industry to which the product belongs, the competent department of the industry to which the product belongs shall issue an opinion. When the purchaser's administrative department and the procurement of products belonging to the industry is not the same as the competent department, the product is still the competent department of the industry issued by the opinion of the validity of the opinion.On the expert opinion,
248 Article VII provides, imported products expert opinion in principle by the purchaser's own organization, and its experts should be familiar with the product, and with the purchaser or the procurement agency has no economic and administrative affiliation and other relations. Imported products and procurement documents due to the evaluation of different imported products, imported products, experts can not be drawn from the financial sector to establish a pool of experts as imported products, experts drawn from the financial sector, experts should be drawn from the pool of experts, should be informed of the content of their argumentation and the corresponding responsibility. The financial sector should develop the corresponding expert appraisal standards and supervision methods, strengthen the management of the expert argumentation to ensure that the argumentation is scientifically accurate, in principle, shall not undertake or organize its expert argumentation work. At the same time, Article 119 of the twelfth and thirteenth provisions, expert group should be composed of more than five people in the singular, which must include a legal expert, product technical experts should be non-unit and familiar with the product experts. Representatives of the purchaser shall not participate in the demonstration as a member of the expert group. Participate in the demonstration of the experts shall not be involved in the procurement evaluation of the same project as the procurement evaluation experts. III Case Analysis Chongqing Shanwai Mountain Technology Co., Ltd. and Fujian Provincial Department of Finance Financial Administration Case Brief Introduction In July 2014, the bidding agency was commissioned by the Fujian Provincial Health Planning Commission to act as the agent of the Fujian Provincial Health Planning Commission for the construction of hemodialysis laboratories in some of the county-level hospitals. The bidding agent issued a notice of bidding documents on July 15, 2014 on Fujian Provincial Government Procurement Network. Ltd. of Chongqing mountain outside the mountain of some of the provisions of the bidding documents set up objections, on July 21 to the bidding agent to question, the bidding agent on July 28 on mountain outside the mountain company questioned the response. Shanwaishan company not convinced, on August 11 to the Fujian Provincial Department of Finance complaints, the Fujian Provincial Department of Finance on August 13 to the bidding agency and the Fujian Provincial Health and Family Planning Commission were made "on the suspension of the Fujian Provincial Health and Family Planning Commission part of the county hospitals hemodialysis room construction project procurement activities and the response to the complaints of the letter," requiring the two third party suspension of the procurement and the complaints of matters explained in writing. The letter requested the two third parties to suspend the procurement and to give explanations on the complaints in written form and submit relevant evidence materials. Combined with the bidding documents of the project, the materials submitted by the complainant and the respondent, and the expert opinion of the questioning meeting and other materials, the Fujian Provincial Department of Finance made a "Complaint Handling Decision" on September 23rd, which is mainly as follows: "...... Third, on the government procurement of imported products. Hemodialysis laboratory construction project purchaser Fujian Health Planning Commission under the Ministry of Finance "on the issuance of notice" (Caiku (2007) No. 119) Article VII, Article VIII and other relevant provisions of the organization of experts to carry out government procurement of imported products demonstration, and will be submitted to the financial sector to review the relevant materials, and obtained the approval of the financial sector. In the implementation of procurement activities, Fujian Health Planning Commission in accordance with the General Office of the Ministry of Finance "on government procurement of imported products management issues related to the notice" (Cai Ban Ku (2008) 248) point five 'financial departments agreed to purchase imported products, should be clearly stipulated in the procurement documents can be purchased imported products, but if due to asymmetry of information and other reasons, there are still meet If, due to information asymmetry and other reasons, there are still domestic products to meet the demand for participation in the procurement competition, the purchaser and its commissioned procurement agency shall not be restricted, and shall implement the procurement in accordance with the principle of fair competition', in the bidding documents, 'bidding for the goods (services) list' part of the fourth point provides that 'According to the Ministry of Finance,' Government Procurement of imported products management "(Caiku (2007) No. 119) and 'on the management of government procurement of imported products on the issue of notice' (Caikou library (2008) No. 248) requirements, the table 'whether to handle the imported products for approval procedures,' the column states that 'Yes' products allow original imported products to participate in the bidding, while meeting the demand for domestic products can also participate in the bidding ', in the second chapter of the 'Instructions to Bidders' description of the part 3.2.2.1 provisions According to the Ministry of Finance, "Government Procurement of imported products management approach" (Caiku (2007) No. 119) and "on the management of government procurement of imported products notice of the relevant issues" (Caiban library (2008) No. 248) requirements, this procurement project does not handle imported products for approval of products to refuse to participate in the bidding of imports, has been handled by the imported products for approval of procedures Products are allowed to imported products to participate in the bidding, while meeting the demand for domestic products can also participate in the bidding. As can be seen from the above, hemodialysis laboratory construction project does not meet the demand for domestic products to participate in the procurement competition to restrict, not in violation of the government procurement of imported products related policies. The complainant complained that 'the tender does not meet the conditions of procurement of imports, domestic hemodialysis machine serious discrimination', can not be established." Mountain outside the mountain company not convinced, to the court. The court's view Article 7 of the Administrative Measures for Government Procurement of Imported Products stipulates that: the purchaser needs to purchase products in China can not be obtained or can not be obtained on reasonable commercial terms, as well as laws and regulations that require the procurement of imported products, should be approved by the financial sector, the government procurement activities in accordance with the law. Article 8 provides that: the purchaser reported to the financial sector review, the following materials should be issued: (a) "Government Procurement of Imported Products Application Form"; (b) on the encouragement of imports of national laws and regulations, copies of policy documents; (c) imported products belonging to the industry of the municipalities of the district, autonomous regions and above the competent departments of the "Government Procurement of Imported Products of the competent departments of the industry opinions"; (d) the expert group issued the "Expert Opinion on Government Procurement of Imported Products"; (e) the "Government Procurement of Imported Products Expert Opinion". Expert Opinion on Government Procurement of Imported Products". The evidence submitted by Fujian Provincial Department of Finance, such as government procurement plan, application form for government procurement of imported products, expert opinion on government procurement of imported products, and audit form for government procurement of imported products, can prove that Fujian Commission for Health and Welfare has organized experts to validate government procurement of imported products, and obtained approval from the financial department. Fujian Provincial Department of Finance submitted evidence that the bidding goods (services) list, bidding documents, Chapter II "Instructions to Bidders", can prove that the procurement project allows original imported products to participate in the bidding, while meeting the demand for domestic products can also participate in the bidding, there is no exclusion of national brand products.