如何规避公开招标界定现象?

网址:http://www.biaoshufang.com 时间:2019-05-29

固然我国法律规则,公开招标是政府采购的主要采购方式,但其肯定采用公开招标是有一定适用条件的,即:到达了公开招标数额规范的采购对象才肯定采用公开招标方式。本案例固然其合计总额超越了市级分散采购的限额规范20万元,但没有到达公开招标数额规范,即100万元。政府采购货物和效劳的公开招标数额规范是指省级以上人民政府或其受权的市级人民政府制定的到达和超越一定金额规范,就必需采用公开招标采购方式停止采购,是低数额规范。

Although public bidding is the main procurement method of government procurement according to the law of our country, there are certain applicable conditions for it to adopt public bidding. That is to say, only when the procurement object reaches the norm of the amount of public bidding, public bidding will definitely be adopted. Although the total amount of this case exceeded the quota standard of 200,000 yuan for decentralized procurement at the municipal level, it did not reach the norm of the amount of public bidding, that is, 1 million yuan. The norm of the amount of public bidding for government procurement of goods and services refers to the norm of arrival and exceeding a certain amount formulated by the people's governments at or above the provincial level or their authorized municipal governments. It is necessary to stop procurement by means of public bidding, which is the minimum amount norm.
之所以将公开招标作为主要采购方式,是由于公开招标采购方式相关于其他采购方式而言,有许多优点。
The reason why public bidding is regarded as the main procurement method is that public bidding procurement method has many advantages related to other procurement methods.
一是公开透明,大限度地避免糜烂现象的发作。公开招标采购方式能表现公开、公平、公正,是“阳光下采购”,透明度相对高,监视机制较为完善,从而加大了糜烂产生的“本钱”和难度,所以能大限度地避免糜烂现象的发作。二是公平竞争,实行优的经济效益。公开招标采购使一切契合资历的供给商都有时机参与竞争,采购人经过“货比三家”,能采购到性价比高、价钱相对廉价、效劳优的采购对象,从而节约财政资金。三是供给商在竞争中经过互相比拟,扬长避短,改良消费工艺,进步整个社会消费力程度,到达共同进步社会效益的目的。
First, it is open and transparent, so as to avoid the occurrence of erosion to the greatest extent. Public bidding procurement can best show openness, fairness and fairness. It is "procurement in the sunshine". Its transparency is relatively high and its monitoring mechanism is relatively perfect, which increases the "cost" and difficulty of erosion, so it can avoid the occurrence of erosion to the greatest extent. Second, fair competition and optimal economic benefits. Public bidding and procurement make all qualified suppliers have the opportunity to participate in the competition. The purchaser can obtain the purchasing object with the highest cost performance, relatively cheap price and best service through "three goods ratio", thus saving financial funds. Third, suppliers in the competition through mutual comparison, make use of strengths and avoid weaknesses, improve consumer technology, improve the level of social consumption, to achieve the goal of common progress in social benefits.
因而,我国《政府采购法》第二十八条规则,采购人不得将应当以公开招标方式采购的货物或者效劳化整为零或者以其他任何方式躲避公开招标采购。
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Therefore, Article 28 of the Government Procurement Law of our country stipulates that the purchaser shall not divide the goods or services that should be purchased by public bidding into zero or evade public bidding by any other means.
那么,什么是化整为零躲避公开招标采购行为呢?《政府采购法施行条例》第二十八条规则,在一个财政年度内,采购人将一个项目下的同一品目或者类别的货物、效劳采用公开招标以外的方式屡次采购,累计资金数额超越公开招标数额规范的,属于化整为零方式躲避公开招标。也是采购人把到达公开招标数额规范的政府采购项目人为分割为数个小项目,使得每个项目的预算金额都未到达法定公开招标数额规范,以此躲避公开招标。
So, what is the behavior of evading public bidding and procurement by turning it into zero? Article 28 of the Regulations for the Implementation of the Government Procurement Law stipulates that, in a financial year, the purchaser repeatedly purchases goods or services of the same category or category under a project by means other than public bidding. If the cumulative amount of funds exceeds the norm of the amount of public bidding, the purchaser evades public bidding by turning them into zero. It is also the purchaser who divides the government procurement project which reaches the norm of the amount of public bidding into several small projects artificially, so that the budgetary amount of each project does not reach the norm of the legal amount of public bidding, in order to avoid public bidding.
为了标准采购人的行为,避免采购人采取化整为零躲避公开招标,《政府采购法》第七十一条规则,采购人将应当采用公开招标方式而擅自采用其他方式采购的,监管部门将责令其限期矫正、给予正告,能够并处分款,对直接担任的主管人员和其他直接义务人员由其行政主管部门或者有关机关给予处分,并通报。
In order to standardize the behavior of the purchaser and avoid the purchaser from evading the public bidding, Article 71 of the Government Procurement Law stipulates that the purchaser shall adopt the public bidding method and unauthorized use of other methods of procurement. The supervisory department will order the purchaser to rectify and make corrections within a specified period of time, and can also dispose of the payment. The person directly in charge and other persons directly responsible for the procurement shall be handled by the supervisory department within the prescribed time limit. The competent administrative department or relevant organs shall impose sanctions and notify them.
所谓细化预算是将预算制度、义务、指标、费用、定额等停止细化,合成到部门和个人。细化预算是部门预算编制的根本请求,更是政府采购预算编制的客观请求。在部门预算编制上,国务院屡次强调要将一切的预算支出由“项”到“目”。同时,政府采购的预算也请求越细、越精确、越详细,越好。
The so-called refined budget is to stop the refinement of budget system, obligations, indicators, costs, quotas and so on, and synthesize them into departments and individuals. Detailed budget is not only the basic request of department budgeting, but also the objective request of government procurement budgeting. In the preparation of departmental budgets, the State Council has repeatedly stressed that all budgetary expenditures should be transferred from "items" to "items". At the same time, the budget of government procurement also requests the finer, the more accurate, the more detailed, the better.
而该案例中,固然该采购人采购的项目都统称为“办公家具”,但床、桌、架等不属于同一品目;且该市的公开招标数额规范是100万元,即便是同属于一个品目,也只要26.78万元,也没有到达100万元的公开招标数额规范。由于,分散采购限额规范与公开招标的数额规范不是一个概念。所以说将该采购人的行为定“化整为零”是适用错误。
In this case, although the items purchased by the purchaser are collectively referred to as "office furniture", the beds, tables, shelves and other items do not belong to the same category; and the city's public bidding amount standard is 1 million yuan, even if it belongs to the same category, as long as 267,800 yuan, there is no public bidding amount standard of up to 1 million yuan. As a result, the standard of decentralized procurement quota and the norm of public bidding quota are not a concept. Therefore, it is a mistake to define the purchaser's behavior as "turning it into zero".