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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II THE FILING OF COMPLAINTS AND THE ACCEPTANCE CHAPTER III THE HANDLING OF COMPLAINTS AND THE DECISIONS CHAPTER IV LEGAL LIABILITIES CHAPTER V SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. With a view to preventing and rectifying the illegal or inappropriate government procurement acts, protecting the legitimate rights and interests of the suppliers of the government procurement activities, safeguarding the state interests and social public interests and establishing a sound and highly efficient government procurement complaints handling mechanism, the present Measures are formulated in accordance with the Government Procurement Law of the People's Republic of China (hereinafter referred to the Government Procurement Law). Article 2. The present Measures shall apply to the suppliers' initiating of complaints to the financial departments pursuant to the law, the financial departments' acceptance of complaints and making of decisions. Article 3. The financial departments of the people's governments at the county level or above shall be responsible for accepting and handling the complaints of the suppliers in accordance with the law. The Ministry of Finance shall be responsible for handling the complaints of the suppliers in the government procurement activities under the central budget projects. The financial departments of the local people's governments at the county level or above shall be responsible for handling the complaints of the suppliers in the government procurement activities under the budget projects at the same level. Article 4. The financial departments of all levels shall publicize their respective telephone number, fax and other matters that may facilitate the suppliers' filing of complaints through the media designated by the financial departments for releasing the government procurement information. Article 5. When the financial departments handle the complaints, they shall adhere to the principle of fairness, impartiality, convenience and high efficiency so as to safeguard the state interests and social public interests. Article 6. A supplier shall be subject to the real name system when it (he) files a complaint. Such complaint shall have specific matters to complain against and factual basis. No one may file any false or malicious complaint. CHAPTER II THE FILING OF COMPLAINTS AND ACCEPTANCE Article 7. Where a supplier considers that the procurement documents, course, bid and transaction results have caused any damage to its (his) legitimate rights and interests, it (he) may initially challenge the purchaser or procurement agency. If the purchaser or procurement agency fails to give a satisfactory response or doesn't give a response within the prescribed time limit, the supplier may file a complaint to the financial department at the same level within 15 working days after the expiry of the time limit for response. Article 8. When a complainant initiates a complaint, it (he) shall submit a complaint and shall offer enough number of duplicates on the basis of the number of the purchaser, procurement agency against whom the complaint is filed (hereinafter referred to the party against whom a complaint is filed) and the supplier(s) relating to the matters complained about. A complaint shall mainly contain: (1) the name, address, telephone number of the complainant and the party against whom the complaint is filed ; (2) specific matters complained about and the factual basis; (3) challenge and response thereto and relevant certification materials; and (4) date of filing a complaint. The complaint shall be signed. If the complainant is a natural person, it shall be signed personally. If the complainant is a legal person or any other organization, it shall be signed by the legal representative or the main person-in-charge and shall be affixed with the official seal. Article 9. A complainant may entrust an agent to handle the complaint related matters. When the agent deals with such matters, it (he) shall not only submit a complaint, but also a power of attorney of the complainant to the financial department at the same level. The power of attorney shall clearly state the specific power and matters under entrustment. Article 10. A complainant who initiates a complaint shall meet the following conditions: (1) It (he) is a supplier who has participated in the government procurement activities; (2) It (he) has made a challenge in pursuance of the law before initiating a complaint; (3) The content of the complaint shall be consistent with the present Measures; (4) It (he) initiates a complaint within the valid period for doing so; (5) It (he) is under the jurisdiction of this financial department; (6) The same matters complained about haven't been tackled as a complaint by the financial department; and (7) Other conditions provided by the financial department of the State Council. Article 11. After the financial department receives a complaint, it shall examine it within 5 working days. If the complaint doesn't meet the relevant conditions, the financial department shall handle it respectively according to the following provisions: (1) If the content of the complaint doesn't satisfy the relevant requirements, it shall inform the complainant to make corrections and lodge a new complaint; (2) If the complaint isn't within the jurisdiction of this department, it shall transfer it to the competent department and notify the complainant of it; (3) If the complaint doesn't meet the other conditions, it shall, in written form, inform the complainant of the rejection and make an explanation. As for a complaint that meets the relevant conditions, it shall be deemed to have been accepted as of the date on which the financial department receives it. Article 12. The financial department shall serve duplicates on the party against whom a complaint is filed and the suppliers related to the matters complained about within 3 working days after it accepts a complaint. Article 13. The complainant and suppliers relating to the matters complained about shall, within 5 working days after they receive the duplicates of the complaint, make a written explanation to the financial department and shall submit the relevant evidence, basis and other materials. CHAPTER III THE HANDLING OF COMPLAINTS AND DECISIONS Article 14. In principle, the financial department shall adopt the approach of written examination when handling a complaint. If it considers necessary, it may make an investigation so as to obtain proofs as well as organize the complaint and the party against whom the complaint is filed to make cross-examination face-to-face. Article 15. If the financial department makes an investigation in pursuance of the law, the complainant, the party against whom a complaint is filed and the entities and persons relating to the complaint shall faithfully provide the pertinent information as well as the pertinent materials needed by the financial department. Article 16. If the complainant refuses to help the financial department to make investigation in accordance with the law, it (he) shall be deemed to have withdrawn the complaint on its (his) own initiative; if the party against whom the complaint is filed refuses to submit the relevant evidence, basis and other materials, it (he) shall be deemed to have waived its (his) rights and have admitted the matters complained about. Article 17. Upon examination, the financial department shall make a handling decision as follows about the matters complained about respectively: (1) If the complainant withdraws the complaint, it shall terminates the handling of the complaint; (2) If the complaint lacks factual basis, the complaint shall be dismissed; (3) If the matters complained about are affirmed as true upon investigation, it shall be handled under pertinent provisions of the present Measures. Article 18. Upon examination, if the financial department determines that the procurement documents show obvious preference or discrimination and have resulted in or likely cause damage to the legitimate rights and interests of the complainant or other suppliers, the case shall be handled according to the following circumstances respectively: (1) If the procurement activity hasn't been completed yet, it shall order that corrections on the procurement documents be made, and the activity shall be carried on according to the corrected procurement documents; (2) If the procurement activity has been completed, but no government procurement contract is concluded, the financial department shall determine the procurement activity illegal and order the parties concerned to re-carry out the procurement activity; (3) If the procurement has already been completed, and a government procurement contract has been concluded, the financial department shall determine the procurement activity illegal and order the party against whom the complaint is filed to bear the corresponding compensation liabilities in accordance with the law. Article 19. Upon examination, if the financial department determines that the procurement documents or process has affected or likely has a bearing on the award or transaction result, or if there is any illegal act in the course of bid award or of transaction result, the case shall be handled according to the following circumstances respectively: (1) If no government procurement contract has been concluded, the financial department shall determine the whole or partial procurement act as illegal in light of different circumstances and order the party concerned to carry out a new procurement activity; (2) If the government contract has been signed but hasn't been executed yet, the financial department shall determine the contract illegal and order the party concerned to carry out a new procurement activity; (3) If the government procurement contract has already been executed, the financial department shall determine the procurement activity illegal; and if the said procurement activity results in any loss to the purchaser and complainant, the relevant liable persons shall bear the compensation liabilities. Article 20. The financial department shall, within 30 working days from the day when it accepts a complaint, make a decision on handling the matters complained about and shall, in written form, inform the complainant, the party against whom the complaint is filed and other interested government procurement parties that have to do with the handling result to the complaint of the said decision. Article 21. When the financial department makes a decision on handling a complaint, it shall make a decision letter on handling and shall affix its seal. The decision letter on complaint handling shall mainly include the following items: (1) The name and address of the complainant and the party against whom the complaint is filed; (2) If an agent is entrusted to handle the relevant matters, the name, occupation, address and contact form of the agent shall be included; (3) The specific content of, factual basis and legal basis for the decision on handling; (4) Informing the complainant of the rights to apply for administrative reconsideration or to lodge a lawsuit; and (5) The date on which the decision on handling the complaint is made. The service of the decision letter on handling the complaint shall be made in pursuance of the provisions on service in the civil procedural law. Article 22. The financial department may, according to concrete situations during the time period for handling a complaint, inform the party against whom the complaint is filed to suspend its purchase, but the suspension may not exceed 30 days at most. The party against whom the complaint is filed shall immediately suspend its purchase upon notification, and may not resume such purchase prior to the expiry of the legally prescribed time period or before the financial department issues a notice of resuming procurement activities. Article 23. The financial department shall release the result of handling the complaint through the media designated by the financial department at the provincial level or above for releasing the government procurement information Article 24. If the complainant refuses to accept the decision on handling made by the financial department, or if the financial department fails to handle the case within the prescribed time limit, the complainant may apply for administrative reconsideration or lodge an administrative lawsuit in the people's court. CHAPTER IV LEGAL LIABILITIES Article 25. When handling a complaint, if the financial department finds any illegal act of the complainant and its personnel, bid evaluation board or supplier, it shall have the power to handle or punish it (him). If it has no such power, it shall transfer the case to the competent organ. Article 26. The complaint filed by a complainant who is under any of the circumstances shall be a false or malicious one. The financial department shall dismiss its (his) complaint and list it (him) in the records of bad conducts, and give it (him) a punishment in accordance with the law: (1) It (he) has filed 3 or more complaints, but all of them are supported by no proof upon investigation; or (2) Fabricating stories or offering false complaint materials. Article 27. Where the illegal act of the party against whom a complaint is filed results in any loss to others, it (he) shall bear the civil liabilities in pursuance of the civil law. Article 28. In the process of handling a complaint, if any of the functionaries of a financial department abuses his power, neglects his duties or seeks private interests, he shall be given an administrative sanction; if any crime is constituted, he shall be subject to the criminal liabilities in accordance with the law. CHAPTER IV SUPPLEMENTARY PROVISIONS Article 29. No financial department may collect fees from a complainant and the party against whom a complaint is filed for handling a complaint. But as for the authentication expense incurred during the process of handling the complaint, it shall be paid by the party in the wrong in light of the principle - "The one who is in the wrong shall make payment"; if both parties are in the wrong, it shall be jointly and reasonably paid by both of them. Article 30. The financial departments shall set up a management system for the complaints handling archives and shall consciously accept the supervision and inspection conducted by the pertinent departments in accordance with the law. Article 31. The financial departments and the persons in the know shall be liable for keeping the commercial secrets and personal privacy that they get to know during the process of handling the complaints. Article 32. The present Measures shall come into effect as of September 11, 2004. |
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