关于对公共资源交易领域严重失信主体开展联合惩戒的备忘录

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Source: http://www.ndrc.gov.cn/zcfb/zcfbtz/201804/W020180408529974000368.pdf

为深入学习贯彻习近平新时代中国特色社会主义思想和党的十九大精神,落实《国务院关于促进市场公平竞争维护市场正常秩序的若干意见》(国发〔2014〕20号)、《国务院关于印发社会信用体系建设规划纲要(2014-2020年)的通知》(国发〔2014〕21号)、《国务院关于建立完善守信联合激励和失信联合惩戒制度加快推进社会诚信建设的指导意见》(国发〔2016〕33号)、《国务院办公厅关于印发整合建立统一的公共资源交易平台工作方案的通知》(国办发〔2015〕63号)、《国家发展改革委人民银行关于加强和规范守信联合激励和失信联合惩戒对象名单管理工作的指导意见》(发改财金规〔2017〕1798号)等有关要求,建立健全公共资源交易领域失信联合惩戒机制,国家发展改革委、人民银行、中央组织部、中央编办、中央文明办、科技部、工业和信息化部、财政部、国土资源部、住房城乡建设部、交通运输部、水利部、商务部、卫生计生委、国资委、海关总署、税务总局、林业局、国管局、银监会、证监会、公务员局、铁路局、民航局等部门,就针对公共资源交易领域严重失信主体开展联合惩戒工作达成如下一致意见。

I. The targets of joint disciplinary action

The targets of joint disciplinary action are enterprises that have violated laws or regulations on public resource trading, gone against the principle of good faith and credit, have any of the following conduct, and have had an administrative punishment carried out against them by the competent departments in accordance with law (hereinafter simply 'untrustworthy enterprises') as well as legal representatives, natural person shareholders, appraisal and evaluation experts, and other persons that bear responsibility (hereinafter 'relevant untrustworthy persons'):

(1) Where legal provisions are violated by not conducting bidding and tendering in projects that require it, and breaking the project into pieces or using any other method to avoide bidding and tendering.

(2) Where tendering agents violate the provisions of law by disclosing circumstances or materials related to the bidding and tendering activity that must be kept confidential, or colluding with the bidders or tenderees to harm the national interest, societal public interest, or the lawful rights and interests of others;

(3) Where tenderees restrict or exclude potential bidders based on unreasonable requirements, where they give bidders discriminatory treatment, where demand that bidders come together with a joint bid, or whether they restrict competition between bidders;

(4) Where in projects where it is necessary to conduct bidding and tendering in accordance with law, the tenderee discloses the names and numbers of potential bidders, or other situations that might impact fair competition in the bidding, or leaks the bid estimate;

(5) Where bidders collude on bids with bidders or tenderees, or bidders use bribery of tenderees or bid appraisers to try and win the bid;

(6) Where bidders bid in others' names or make other misrepresentations so as to win the bid by fraud;

(7) In projects where it is necessary to conduct bidding and tendering in accordance with law, the tenderee violates provisions of law by negotiating with bidders on the bid price, bid proposal, or other substantive content;

(8) Where bid appraisal committee members accept property or other benefits from bidders; bid appraisal committee members or relevant staff participating in bid appraisal leak review and comparisons of bid documents, recommendations of bid candidates, as well as other situations related to bid appraisal;

(9) Where tenderees designate a winner for the bid outside of those candidates recommended by the bid appraisal committee in accordance with law, or designate a winner on their own after the bid appraisal committee has rejected all bids in a project where bidding and tendering is required in accordance with law;

(10) Where the bid winner transfers the project to another, transfers parts of the project to others after dividing the project, violates provisions of law by subcontracting certain subject matter or key work to others, or subcontracting a subcontract;

(11) Where the tenderees and bid winners don't follow the tender documents and the bid winners' bid documents to make the contract, or where the tenderers and bid winners sign agreements substantively deviating from the contract;

(12) Where the bid winners don't follow the contract signed with the tenderee to perform contact obligations, and the circumstances are serious;

(13) Where purchasers or purchasing agents are supposed to use open bidding but employ other methods for purchases without authorization, increase the purchasing standard without authorization, treat suppliers differently or discriminatorily based on unreasonable requirements; consult and negotiate with bidders during the course of tendering and purchasing; or where after the bid is won and the acceptance notification is sent they do not sign a purchasing contract with the bid winner or accepted supplier, or refuse to have relevant departments lawfully carry out oversight and inspection;

(14) Where purchasers or purchasing agents and their staffs have maliciously colluded with suppliers or purchasing agents, accepted bribes or obtained other improper benefits in the course of purchasing; provided fake information in the course of lawful oversight and inspections by relevant departments; or disclose bid estimates and other such circumstances before the bidding;

(15) Where purchasers do not retain a central purchasing body to conduct centralized purchasing in government procurement projects where they must carry out centralized purchasing;

(16) Where purchasers or purchasing agents violate legal provisions by hiding or destroying purchasing documents that should be preserved, or fabricate or modify purchasing documents;

(17) Where suppliers have provided false materials to win the bid or get a contract; employed unfair methods to disparage or push out other suppliers; maliciously colluded with purchasers, other suppliers or purchasing agents; bribed or provided other improper benefits to purchasers or purchasing agents; consulted or negotiated with purchasers during the bidding and tendering process, or refused the oversight and inspection or provided fake information;

(18) Where vaccine production enterprises sell type-2 vaccines to units or individuals other than county-level disease control centers;

(19) where there are other acts in violation of laws and regulations on public resource trading,

untrustworthy enterprises and relevant untrustworthy persons in the public resource trading sector, as referred to in the Memorandum, specifically includes tenderees, purchasers, bidders, suppliers, bidding agents, purchasing agents, and appraisal experts with serious illegal untrustworthiness, as well as other citizens, legal persons, or other organizations participating in public resource transactions.

II. Joint Punishment Measures

(1) Public Resource Trading Sector

公共资源交易平台整合部际联席会议成员单位依据法律、法规、规章和规范性文件规定,在公共资源交易领域对惩戒对象采取下列一种或多种惩戒措施。

1. Lawfully restrict untrustworthy enterprises' participation in bidding and tendering on construction projects.

2. Lawfully restrict untrustworthy enterprises' participation in government procurement activities.

3. Restrictions law dishonesty enterprises to participate in the transfer of land use rights and mineral rights.

4. Lawfully restrict untrustworthy enterprises' participation in state-owned property transactions.

5. Lawfully restrict untrustworthy enterprises' participation in centralized procurement and distribution of medicines and medical devices.

6. Lawfully restrict untrustworthy enterprises' participation in centralized procurement and distribution of medicines and medical devices.

7. Lawfully restrict untrustworthy enterprises' participation in forestry rights transfers.

8. Lawfully restrict untrustworthy enterprises' participation in other public resource transactions.

9. Lawfully restict untrustworthy enterprises' engagement in public resource transaction representation.

10. Lawfully restrict relevant untrustworthy persons from serving as experts for public resource transactions.

11. Lawfully restrict relevant untrustworthy persons from working in the public resource transaction field.

12. Lawfully strengthen oversight and inspections of untrustworthy enterprises' and relevant untrustworthy persons' participation in all activities related to public resources transactions.

(2) Other Relevant Sectors

除公共资源交易平台整合部际联席会议成员单位外,其他部门和单位依照有关法律、法规、规章和规范性文件规定,对联合惩戒对象采取下列一种或多种惩戒措施(相关依据和实施部门见附表)。

1. Strictly review adminstritative permit approval projects, lawfully restricting new project approvals.

2. Strictly control the issuance of production permits in accordance with law.

3. Lawfully restrict untrustworthy enterprises' receipt of government subsidies and social security funding supports.

4.依法将失信信息作为选择基础设施和公用事业特许经营

等政府和社会资本合作项目合作伙伴的重要参考因素,限制失信主体成为项目合作伙伴。

5. Lawfully restrict relevant untrustworthy persons from serving as the legal representative, director or supervisor of a state-owned enterprise

6. When applying for credit debt financing or handling credit cards, financial instititutions are to make information on untrustworthiness a major factor for consideration.

7. Lawfully restrict funds, fund managers, and practitiors who have negative credit records from participating in activities related to industrial investment funds for which the government invested capital.

8. Lawfully do not accept applications to issue corporate bonds

9. When registering non-financial corporate debt financing tools, strengthen management and follow the work requirements for registered issued to strengthen information disclosure, strengthen mechanisms for investor protection management, preventing relevant risks.

10. Lawfully make information on untrustworthiness a consideration in the approval of issuing corporate bonds.

11. Lawfully make information on untrustworthiness a consideration in reviewing the issuance of stocks of medium and small-sized enterprises.

12. Lawfully make untrustworthy information a consideration in approvals or recording of modifications to securities companies', fund management companies', or futures companies' establishment, equity rights, and actual controller, or private investment fund managers registration, modification of major matter, and other fund recording.

13. Lawfully make untrustworthy behavior a consideration in oversight and management during and after the fact of a domestic listed company's implementation of an equity incentive plan or making relevant personnel equity incentive recipients.

14. Lawfully make information on unlawful untrustworthiness a consideration in review of major asset reorganizations of non-listed public companies.

15.在上市公司或者非上市公众公司收购的事中事后监管中,

依法对有严重失信行为的企业予以重点关注。

16. Lawfully make illegal untrustworthy conduct a consideration in reviews and approvals of private fund sales organizations.

17. Lawfully make untrustworthy conduct a consideration in approval or recording of directors, supervisors, or senior management, or the responsible persons at branch organizations of securities companies, insurance companies, fund management companies, or futures companies.

18. When applying to handle related customs business, carry out strict supervision of the goods they export or import, strengthen document checks and market control inspections, and subsequent audits or statistical oversight.

19.对申请适用海关认证企业管理的,依法不予通过认证,对已经成为认证企业的,按照规定下调企业信用等级。

20. Listing untrustworthy entities as targets for key monitoring in tax administration, strengthening tax administration, and increasing oversight and the frequency of inspections.

21. Make entities' untrustworthy status a major external consideration in tax credit evaluations.

22. Lawfully restrict judgment defaulters' spending that is unnescessary for their lives or business, such as building, expanding, or high-class renovation of houses, or buying vehicles not necessary for business.

23. Lawfully restrict new science and technology support programs, include their serious untrustworthy conduct in their scientific research credit record, and, on the basis of relevant provisions, suspend review and of their new science and technology program support funding reports.

24. Follow procedures to promptly revoke relevant awards and honors, and cancel qualifications to participate in competitions.

25.严重失信主体是个人的,依法限制登记为事业单位法定代表人;严重失信主体是企业的,该企业法定代表人依法限制登

记为事业单位法定代表人。

26. Lawfully impose restrictions when recruiting (hiring) civil servants or public institution staff. 三、联合惩戒的实施方式公共资源交易平台整合部际联席会议成员单位通过全国公

共资源交易平台,记录失信主体信息。 公共资源交易平台整合部际联席会议以外的其他部门和单位根据各自行政许可、行政处罚、日常监管等情况定期向发展改革委提供严重违法失信主体信息,由发展改革委汇总后上传全国公共资源交易平台。 全国公共资源交易平台与全国信用信息共享平台实现数据交互共享,并通过全国公共资源交易平台网站、“信用中国”网站、国家企业信用信息公示系统向社会公布。

各部门和单位对公共资源交易领域和其他相关领域存在严重违法失信行为的失信企业、失信相关人“黑名单”进行动态管理,及时更新相关信息。 对于从公共资源交易领域严重违法失信“黑名单”中移除的市场主体及其有关人员,应及时停止实施惩戒措施。

各部门和单位按照本备忘录约定的内容,依法依规对失信企业及其失信相关人实施联合惩戒。

IV. Other Matters

各部门和单位应密切协作,积极落实本备忘录,制定失信信息的使用、撤销、管理、监督的相关实施细则和操作流程,指导本系统各级单位依法依规实施联合惩戒措施。

本备忘录实施过程中涉及的协同配合问题,由各部门和单位

协商解决。

After this memorandum is signed, where any laws, regulations, rules or normative documents that are the basis for any joint punishment measure are revised or adjusted, the revised laws, regulations, or normative documents are controlling.

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