Nov 28,2007
Chapter Ⅷ Legal Liabilities
Article 71 Where a procuring entity or procuring agency commits one of the following acts, it shall be ordered to set it right within a time limit and be given a disciplinary warning, and may also be fined, and the persons directly in charge and the other persons directly responsible shall be given sanctions by the competent administrative department where they belong or by the relevant authority, and the matter shall be circulated:
(1)adopting, without authorization, other procurement methods, instead of public invitation;
(2)elevating, without authorization, the criteria for procurement thresholds;
(3)entrusting matters of government procurement to an agency that is not qualified for the job;
(4)treating suppliers differentially or discriminatingly by raising unreasonable requirements;
(5)in the course of procurement through bid invitation, holding consultation or negotiation with bidders;
(6)failing to conclude a procurement contract with the winner of the bid or the successful supplier after the notice informing the said winner or supplier of its acceptance is sent out; and
(7)refusing to subject itself to supervision conducted by the relevant department in accordance with law.
Article 72 Where a procuring entity or procuring agency or its staff member commits one of the following acts, which constitutes a crime, it/he shall be investigated for criminal responsibility in accordance with law; if the offence is not serious enough to constitute a crime, it/he shall be fined, and the illegal gains, if any, shall be confiscated, if the person involved is a State functionary, he shall be given an administrative sanction in accordance with law:
(1)colluding, in bad faith, with a supplier or a procuring a gency;
(2)in the course of procurement, accepting bribes obtaining other illegitimate interests;
(3)providing false information to the relevant department that is conducting supervision in accordance with law; or
(4)Divulging the base price of a bid before opening of bids.
Article 73 The violations, mentioned in the preceding two articles, that affect or are likely to affect the results in respect of the winner of a bid or the successful supplier, shall be dealt with respectively in accordance with the following:
(1)where the winner of the bid or the successful supplier is not determined, the procurement proceeding shall be terminated;
(2)where, although the winner of the bid or the successful supplier is determined, the procurement contract is not performed, the contract shall be cancelled and a new winner of the bid or successful supplier shall be selected compensation.
(3)where fulfillment of the procurement contract causes losses to the procuring entity or supplier, the person liable shall bear the responsibility to pay compensation.
Article 74 The procuring entity that fails to entrust institutions for centralized, procurement with government procurement items, as is required, shall be ordered by the department for supervision over government procurement to rectify; if it refuses to comply, payment of budgetary funds to it shall be suspended, and the persons directly in charge and the other person directly responsible shall bi given sanctions by the competent administrative department at the next higher level or the relevant authority in accordance with law.
Article 75 Where the procuring entity fails to publish the standards for government procurement items and the results of the procurement, it shall be ordered to rectify and the persons directly in charge shall be given sanctions in accordance with law.
Article 76 Where the procuring entity or the procuring agency, in violation of the provisions of this law, conceals or destroys the procurement documents that are required to be preserved, or fabricates or forges such documents, it shall be fined not less than RMB 20,000yuan but not more than 100,000yuan by the department for supervision over government procurement, and the persons directly in charge and other persons directly responsible shall be given sanctions in accordance with law; if the offence constitutes a crème, it shall be investigated for criminal responsibility in accordance with law.
Article 77 Any supplier than commits one of the following acts shall be fined not less that 0.5 percent but not more than 1percent of the total procurement value, be included in the list of those with records of misconduct and be prohibited, within one to three years, from participating in government procurement activities, the illegal gains, if any, shall be confiscated by the administrative department for industry and commerce, and if the circumstances are serious, its business license shall be revoked by the administrative department for industry and commerce; if a crime is constituted, it shall be investigated for criminal responsibility in accordance with alw:
(1)providing false materials in an attempt to win a bid or become the successful supplier;
(2)defaming or excluding other suppliers by illegitimate means;
(3)colluding, in bad faith, with the procuring entity, other suppliers or the procuring agency;
(4)bribing or providing illegitimate benefits to the procuring entity or agency;
(5)in the course of procurement through bid invitation, holding consultation or negotiation with the procuring entity; and
(6)refusing to subject itself to supervision by the relevant department or providing false information.
Where a supplier commits one of the first five acts mentioned in the preceding paragraph, its winning of or success in a bid shall be invalidated.
Article 78 Where the procuring agency, in making procurement on behalf on the government, commits an illegal act, it shall be fined pursuant to the provisions of relevant laws, and it may be disqualified for doing business in this field; if a crime is constituted, it shall be investigated for criminal responsibility in accordance with law.
Article 79 Where the party to government procurement commits illegal acts prescribed in Articles 71,72 and 77 of this Law and thus causes losses to other persons, it shall, in addition, bear civil liability pursuant to the provisions of relevant civil laws.
Article 80 Where, in exercising supervision, the official of the department for supervision over government procurement, in violation of the provisions of this Law, abuses his powers, neglects his duty or commits malpractices for personal gain, he shall be given an administrative sanction in accordance with law; if a crime is constituted, he shall be investigated for criminal responsibility in accordance with alw.
Article 81 Where the department for supervision over government procurement fails, within the specified time limit, to deal with the complaint lodged by a supplier, the persons directly in charge and the other persons directly responsible shall be given administrative sanctions.
Article 82 Where the department for supervision over government procurement in appraising the performance of institution for centralized procurement makes false statements or conceals the truth, or it fails to conduct regular appraisal and to publish the results of the appraisal, it shall rectify without delay, and the authority at the next higher level or the supervisory authority shall criticize, in an official dispatch, the leading members of the department and, in accordance with law, give administrative sanctions to the persons directly responsible.
Where the institution for centralized procurement, when undergoing appraisal by the department for supervision over government procurement, makes a false report of its performance or conceals the truth, it shall be fined not less than 20,000yuan but mot more than 200,000yuan, and the matter shall be made known in an official dispatch; if the circumstances are serious, it shall be disqualified as a procuring agency.
Article 83 Any entity or individual that attempts to deny or restrict access by outside suppliers to the local markets or the market of the same industry for government procurement, shall be ordered to rectify within a specified time limit; if it/he refuses to comply, the competent administrative department at the next higher level of the entity or individual or the relevant authority shall give sanctions to the leading members of the entity or the individual in question.
|