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Circular of the Ministry of Finance of the People's Republic of China on Printing and Distributing the Administrative Measures for the Government to Initially Purchase and Order Independent Innovation Products
Cai Ku [2007] No.120
The related departments of the Central Committee of the Communist Party of China, all ministries and commissions of the State Council, the institutions directly under the State Council, the General Office of the Standing Committee of the National People's Congress, the General Office of the Chinese People's Political Consultative Conference, the Supreme People's Court, the Supreme People's Procuratorate, related people's organizations, the public finance offices (bureaus) of all provinces, autonomous regions, municipalities directly under the State Council and cities specifically designated in the state plan, the public finance bureau of Xinjiang Production and Construction Corps, and all centralized procurement institutions:
With a view to implementing the Circular of the State Council on Some Supporting Policies for Implementing the National Guideline on Medium and Long-term Program for Science and Technology Development (2006-2020) (Guo Fa [2006] No.6), bringing into play the role of government procurement policies, encouraging and supporting the research on and application of independent innovation products, and regularizing the government's initial purchase and order activities, the Ministry of Finance has formulated the Administrative Measures for the Government to Initially Purchase and Order Independent Innovation Products in accordance with the Law of the People's Republic of China on Government Procurement. The present Measures are hereby printed and distributed to you, please carry them out accordingly.
Attachment: Administrative Measures for the Government to Initially Purchase and Order Independent Innovation Products
The Ministry of Finance of the People's Republic of China
December 27, 2007
Attachment:
Administrative Measures for the Government to Initially Purchase and Order Independent Innovation Products
Chapter I General Rules
Article 1
With a view to implementing the Circular of the State Council on Some Supporting Policies for Implementing the National Guideline on Medium and Long-term Program for Science and Technology Development (2006-2020) (Guo Fa [2006] No.6), bringing into play the role of government procurement policies, encouraging and supporting the research on and application of independent innovation products, and regularizing the government's initial purchase and order activities, the present Measures are formulated in accordance with the Law of the People's Republic of China on Government Procurement.
Article 2
The present Measures shall apply to the activities that any state organ, public institution or organization (hereinafter referred to as the purchaser) conducts initial purchase or order activities by using public fiscal funds.
Article 3
The term "initial purchase" as mentioned herein means acts that a purchaser or the government initially purchases through government procurement products which are manufactured or developed by domestic enterprises or scientific research institutions and put into the market for the first time, do not have market competitiveness temporarily but satisfy the national economic development demands and represent the development orientation of advanced technology (hereinafter referred to as products for initial purchase).
Article 4
The term "order" as mentioned herein means acts of, for important innovation products, technology and soft science research topics needed to be researched on and developed by the state (hereinafter referred to as products of order), selecting research and development and production institutions (hereinafter referred to as suppliers of products of order) through government procurement from the whole society.
Article 5
Products to be initially purchased or ordered by the government shall be original and independently developed. If such products are independent innovation ones, the initial purchase and order activities thereof shall be subject to the policies on government procurement of independent innovation products.
Article 6
The initial purchase and order activities of the government shall adhere to the principles of openness, transparency, fair competition, fairness, honesty and good faith.
Article 7
The public finance departments and the departments of science and technology of the people's governments at all levels shall intensify supervision and administration over the government's initial purchase and order activities.
Chapter II Administration of Initial Purchase
Article 8
The product of initial purchase shall meet the following requirements:
(1)
Belonging to independent innovation products as accredited by the state;
(2)
Satisfying the national economic and development demands and representing the development orientation of advanced technology;
(3)
The manufacturer and supplier shall be enterprises or public institutions which are within the territory of China and have the qualification as a legal person in China;
(4)
Being put into the market for the first time and then having no competitiveness in the market yet, but having great market potential and requiring particular support;
(5)
Having potential capacity and reliable quality; and
(6)
Meeting the laws, administrative regulations and policies of the state.
Article 9
The accreditation of products of initial purchase shall be subject to the Administrative Measures for the Accreditation of Independent Innovation Products of the State (for Trial Implementation) (Guo Ke Fa Ji Zi [2006] No.539) jointly formulated by the Ministry of Science and Technology, the National Development and Reform Commission and the Ministry of Finance.
Article 10
The products of initial purchase shall, after research and determination of the Ministry of Finance together with the Ministry of Science and Technology and other related departments, be brought into the Catalogue of Independent Innovation Products for Government Procurement (hereinafter referred to as the Catalogue) and made publication, and shall be available for initial purchase within a certain time limit.
All regions and departments may recommend products matching the spirit of initial purchase policies to the Ministry of Science and Technology according to related provisions. And such products may be added to the Catalogue upon the accreditation and examination of the Ministry of Science and Technology and the Ministry of Finance.
Article 11
If the products to be purchased by a purchaser belong to ones of initial purchase, it shall buy those listed in the Catalogue, and shall confer the government procurement contract upon the supplier of the product.
Chapter III Administration of Order Activities
Article 12
The product of order shall satisfy the following requirements:
(1)
Satisfying state laws, administrative regulations, state industry and technology policies and other related policies;
(2)
Belonging to important innovation products or technologies that need to be researched and developed but have not been put into production and used yet;
(3)
The rights and interests over the product are clear, and the independent intellectual property right over it can be obtained after its development;
(4)
Having a high degree of innovation, and involving core technology and key arts and crafts of production; or having applied new technical principles and new designs, and having made fundamental improvement on the original product in terms of structure, material and technique, which improves the performance of the product to a large extent; or may take the lead in coming out with technical standards home or abroad; and
(5)
Having potential economic benefits and a potential large market, or can replace imported products.
Article 13
A purchaser shall, through government procurement, select a product supplier from the whole society, conclude a contract on government procurement of products of order with the supplier and ensure sufficient competition during the process of selection.
The order activities of the government shall be undertaken mainly by public bidding. If it is necessary to adopt any other manner than public bidding due to special circumstances, such manner shall still be subject to the related provisions on government procurement.
Article 14
The contract on government procurement of products of order shall be conferred upon enterprises or public institutions that are within the territory of China and have the qualification as a legal person in China.
Article 15
The purchaser and its purchase agency shall specify, in the qualification requirements, evaluation methods and standards of the purchase document, the specific requirements on the supplier of the products of order, detailed technical requirements on the achievements of the order activity, the related grading factors and specific grades.
Article 16
The purchaser and its purchase agency shall, according to the demands of the purchase program, reasonably set forth the qualification requirements on the supplier of the products of order, including the requirements on the technical level, scale, performance, qualification and credit of the supplier, and may not exclude or restrict any potential domestic supplier with unreasonable requirements.
Article 17
If some suppliers submits a tender as an association, all of them shall be enterprises or public institutions which are within the territory of China and have the qualification as a legal person in China.
Article 18
It may not be allowed to make subcontract of government procurement.
Article 19
The contract on government procurement of products of order shall prescribe the inspection and acceptance, transformation of technical achievements, application and promotion, as well as other items.
Article 20
The ownership of the intellectual property rights over the products ordered by the government shall be subject to the related provisions of the state.
Chapter IV Supervision and Inspection
Article 21
If, during the course of the implementation of a contract on government procurement of products of initial purchase or order, both parties intend to alter the contractual clauses or conclude a supplemental contract, they may not breach the principle of promoting independent innovation and violate policies on initial purchase and order.
Article 22
If both parties alter the contractual clauses or conclude a supplemental contract according to law, the purchaser or its purchase agency shall file the altered contract, the duplicate of the supplemental contract and reasons for the alteration or supplement with the public finance department and other related departments at the same level for archival purpose.
Article 23
If a purchaser refuses to observe the policies on initial purchase or order, it shall be ordered to make corrections within a certain time limit and be warned. In light of the actual situation, the public finance department may refuse to pay the purchase money. As for the directly liable person in charge and other directly liable persons of the purchaser, the competent administrative department or the related authority shall impose punishments upon them and circulate a circular thereon.
Article 24
If a purchase agency commits any illegal act when purchasing products of initial purchase or order on behalf of the government, it shall be given an admonition and fined according to related provisions; if the circumstance is serious, the agency shall be disqualified for the related business, and if it is suspected of committing any crime, it shall be transferred to the judicial organ for investigation and punishment.
Article 25
If a supplier which has won a bid or concluded a transaction falls under any of the following circumstances, it shall be warned and listed as a supplier with bad conduct, and a public announcement thereon shall be published. The Ministry of Finance shall feed back the information on related products and suppliers to the Ministry of Science and Technology in a timely manner:
(1)
Subcontracting whole of its government initial purchase or order contract after its conclusion;
(2)
Subcontracting part of its government initial purchase or order contract after its conclusion to other suppliers; or
(3)
Providing disqualified products for initial purchase of the government, which has affected the normal use, or failing to accomplish the research and development task undertaken by it in accordance with the purchase document and the contractual stipulations.
If any supplier is under any of the circumstances as prescribed above, it shall be punished according to related provisions, and if losses have been caused to other party, it shall assume civil liabilities according to the civil provisions and the contractual stipulations.
Chapter V Supplementary Rules
Article 26
The procurement of trial products which meet the basic conditions for initial purchase of the government shall be subject to the present Measures by analogy.
Article 27
Any matters uncovered herein shall be subject to the related provisions on government procurement.
Article 28
The government procurement contracts concluded before publication of the catalogue of products of initial purchase shall be subject to the original provisions and policies, while the government procurement activities conducted after publication of the foresaid shall be subject to policies on initial purchase of the government.
Article 29
As for the programs involving national security or secrets, the present Measures may not apply thereto.
Article 30
The present Measures shall enter into force as of the date of printing and distribution.
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Promulgated by Ministry of Finance on 2007-12-27
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