Viewpoint | An empirical study of case typing in the setting of scores in the review criteria corresponding to the quantitative indicators of the review factors

Since the implementation of the regulations on the implementation of the Government Procurement Law on March 1, 2015, the topic related to the evaluation method of government procurement and the most frequent occurrence is "if the comprehensive scoring method is adopted, the score setting in the evaluation standard shall correspond to the quantitative indicators of the evaluation factors". As we all know, government procurement includes eight procurement methods, including public bidding, invitation bidding, competitive negotiation, single-source procurement, inquiry, competitive negotiation, framework agreement procurement (including closed framework agreement procurement and open framework agreement procurement), and cooperative innovation. Among them, procurement methods using comprehensive scoring method include public bidding, invitation bidding, competitive negotiation and the first stage of closed framework agreement procurement. Public bidding and invitation bidding are directly stipulated by the government procurement law. Competitive consultation is the procurement method confirmed by the Ministry of Finance in the form of administrative normative documents. Framework agreement procurement is the procurement method confirmed by the Ministry of Finance in the form of departmental regulations. Competitive consultation and framework agreement procurement are lower than public bidding and invitation bidding in terms of legal effect, however, these four procurement methods should be consistent in the understanding and application of "the score setting in the evaluation criteria should correspond to the quantitative indicators of the evaluation factors.

Before discussing the correspondence between "score setting in evaluation criteria" and "quantitative index of evaluation factors", we need to accurately understand the concepts of "score setting", "evaluation factors", "quantitative index" and "quantitative index of evaluation factors.

Score setting, as the name implies, is to set different scores for different scoring items, including fixed scores and interval scores.

Evaluation factors refer to factors other than substantive requirements and conditions and qualification conditions in procurement requirements. Review factors generally include price, business, technology and services [1]. Quantitative indicators, refers to the indicators that can be reflected in specific data, quantitative indicators should be clear about the corresponding order, there is a continuous interval according to the interval division of the order. Therefore, the quantitative indicators of evaluation factors are indicators of evaluation factors that must be able to be reflected in specific data, and indicators that cannot be reflected in specific data cannot be used as evaluation factors.

In "Guidance Case No. 9: Complaint Case of XX Warehouse Qualification Bidding Project" [2](hereinafter referred to as "Case No. 9"), the financial department believes that "when refining and quantifying the evaluation factors, it is generally inappropriate to use expressions such as' excellent, ''like','' 'and' general' that do not have clear judgment criteria and are easy to cause ambiguity."

In "Guiding Case No. 27-Complaint Case of M Center Anti-adsorption Gas Sampling Bag and Accessories Procurement Project" [3](hereinafter referred to as "Case No. 27"), the financial department believes that "when the comprehensive scoring method is adopted, evaluation factors other than price shall be scored according to the response of bidding documents to bidding documents, instead of scoring through comparison between bidding documents of suppliers, that is, the comprehensive scoring method is adopted, the review shall not be conducted by means of horizontal comparison."

In the "the People's Republic of China Government Procurement Information Announcement of the Ministry of Finance (No. 716)" [4](hereinafter referred to as "Announcement No. 716"), the financial department believes that "according to the scoring standard of the bidding documents (Note: The scoring standard stipulated in the bidding documents is that the response part of the technical index has a total of 40 points, and each item with negative deviation response is reduced by 3-5 points), the total score required by the bidding documents for various technical parameters of the bidding products is 373 points, and the setting of the scoring criteria does not correspond to the specific technical parameters of the bidding products."

In the "Announcement on the Results of Complaint Handling of Property Management Service Procurement Projects in the Second Affiliated Hospital of Shandong First Medical University" [5](hereinafter referred to as "Complaint Handling of Property Service Projects in a Hospital"), the financial department believes that "the tender preparation (according to whether the tender preparation is standardized and whether the description of the technical part is accurate, etc. Comprehensive evaluation by experts, in the 0-1.5 score as appropriate. If the bid evaluation committee collectively determines that the supplier copies and pastes the bidding documents to make a technical response form, the item does not score. In response to the function of government procurement energy conservation and environmental protection policy, the bidding documents will get 1 point on both sides and no point on one side) 'has nothing to do with the quality of the service and does not correspond to the corresponding business conditions and procurement requirements. The score setting belonging to the evaluation standard does not correspond to the quantitative index of the evaluation factors."

The first paragraph of Article 21 of the Notice on Issuing the Measures for the Administration of Government Procurement Demand (Caiku [2021] No. 22, hereinafter referred to as "Caiku [2021] No. 22") stipulates that "if a comprehensive evaluation method is adopted, the evaluation factors shall be determined in accordance with the procurement demand and other factors related to the realization of the project objectives"; the second paragraph of Article 55 of the Measures for the Administration of Bidding for Government Procurement of Goods and Services (Ministry of Finance Decree No. 87, hereinafter referred to as "Ministry of Finance Decree No. 87") stipulates that "the setting of evaluation factors shall be related to the quality of goods and services provided by bidders, including bid quotation, technology or service level, performance capability, after-sales service, etc."; The third paragraph of Article 55 of Ministry of Ministry of Finance Decree No. 87 stipulates that, "The evaluation factors shall correspond… to the appropriate business conditions and procurement requirements". Accordingly, the setting of evaluation factors should be related to the quality of the subject matter of the procurement, and should be determined jointly according to the procurement needs, business conditions and other factors of the government procurement project.

According to the key points of Case No. 27, if horizontal comparative evaluation is adopted, it is necessary to compare and judge the advantages and disadvantages of the bidding (response) documents of all suppliers that have passed the qualification examination and compliance examination, thus resulting in the offer embodied in the form of bidding (response) documents and procurement documents (including bidding documents and competitive negotiation documents, the offer invitation reflected in the form of "procurement documents") is difficult to form a response to the quality of the procurement target, and even the quality of the procurement target in the offer cannot substantially respond to the quality of the procurement target in the offer invitation. Therefore, in the horizontal comparison evaluation, the set evaluation factors are difficult to reflect the quality of the procurement target, and lack direct correlation with the procurement requirements, business conditions and other factors of government procurement projects, it is not conducive to the implementation of government procurement projects, and it will inevitably damage the supplier's right to fair competition.

According to the main points of complaint handling of a hospital's property service project, the production of tenders has nothing to do with the quality of the procurement target, nor with the procurement needs, business conditions and other factors in the government procurement project. Therefore, the "tender production" is set as an evaluation factor, which lacks legal basis.

From the point of view of legal rules and law enforcement practice, the setting of evaluation factors is the basis of "the setting of scores in the evaluation criteria should correspond to the quantitative indicators of evaluation factors", and the setting of evaluation factors should reflect the quality of the subject matter of procurement and should be related to the procurement needs, business conditions and other factors of government procurement projects. When the setting of the evaluation factors does not conform to the legal provisions, the quantitative indicators of the evaluation factors are out of the question, and "the score setting in the evaluation criteria should correspond to the quantitative indicators of the evaluation factors" is a source of water and a tree without a source.

The second paragraph of Article 21 of Document No. 22 of Caiku [2021] stipulates that "for procurement items with objective and clear procurement needs, objective but non-quantifiable indicators in procurement needs shall be taken as substantive requirements and shall not be used as scoring items; the indicators participating in scoring shall be quantitative indicators in procurement needs..."; Article 9, paragraph 2 of Document No. 22 of Caiku [2021] stipulates that "technical requirements and commercial requirements shall be objective, the quantitative indicators shall be clearly defined in the corresponding order, and if there is a continuous interval, the order shall be divided in accordance with the interval..."; The third paragraph of Article 55 of Decree No. 87 of the Ministry of Finance stipulates that "if there is an interval for business conditions and procurement demand indicators, the evaluation factors shall be quantified to the corresponding interval......". Accordingly, in government procurement projects with objective and clear procurement needs, procurement needs can be divided into non-quantifiable indicators and quantitative indicators. Among them, non-quantifiable indicators should be taken as substantive requirements and conditions, no deviation is allowed, and should be marked in a conspicuous way; Quantitative indicators are divided into objective fixed sub-indicators and subjective continuous interval sub-indicators, objective fixed sub-indicators belong to right and wrong judgment, subjective continuous interval sub-indicators belong to discretion.

According to the main points of Announcement No. 716, the technical indicators of the project belong to objective fixed sub-indicators. The evaluation of the indicators depends on whether the bidding (response) documents of all suppliers that have passed the qualification examination and compliance examination correspond to the corresponding technical indicators in the procurement documents. If the bidding (response) documents of suppliers have the technical indicators, no points will be deducted. Otherwise, points shall be deducted.

According to the main points of case 9, "excellent", "good", "medium" and "general" belong to the subjective continuous interval and other sub-indicators. Although such indicators are subjective indicators, in order to constrain the discretion of the members of the review committee, such indicators should have clear criteria for judgment and should not be ambiguous.

From the point of view of legal rules and law enforcement practice, the quantitative indicators of evaluation factors belong to the quantifiable indicators in procurement needs, and non-quantifiable indicators shall not be used as evaluation factors.

The second paragraph of Article 21 of document No. 22 [2021] of the Treasury stipulates that "the indicators participating in scoring shall be the quantitative indicators in the procurement demand, and the scoring items shall be set with different corresponding scores according to the grades of the quantitative indicators..."; The third paragraph of Article 55 of Decree No. 87 of the Ministry of Finance stipulates that "if there are intervals for business conditions and procurement demand indicators, the evaluation factors shall be quantified to the corresponding intervals, and set the different scores corresponding to each interval". Accordingly, when setting the scores in the evaluation criteria, the scores are divided into objective fixed scores and subjective continuous interval scores.

According to the main points of Announcement No. 716, the technical indicators of this project belong to objective fixed sub-indicators and should correspond to objective fixed scores. According to the provisions of the bidding documents of the project, each article with negative deviation response is reduced by 3-5 points. According to statistics, the actual corresponding score of the evaluation factor is 373 points, which is inconsistent with the 40 points stipulated in the bidding documents. It belongs to the situation that the score setting in the evaluation standard does not correspond to the quantitative index of the evaluation factor.

According to the main points of case No. 9, "excellent", "medium" and "general" belong to subjective continuous interval sub-indexes, and the score is set as "excellent 35-45 points, 20-34 points, and generally 0-19 points". Although "excellent", "medium" and "general" respectively correspond to the interval scores, which are in line with the stipulation that "if there are intervals for business conditions and procurement demand indicators, the evaluation factors shall be quantified to the corresponding intervals, and different scores corresponding to each interval shall be set", but because "excellent", "medium" and "general" belong to the expressions without clear judgment standard and easy to cause ambiguity, the quantitative indicators of evaluation factors are not clear, it belongs to the situation that the score setting in the evaluation standard does not correspond to the quantitative index of the evaluation factor.

From the perspective of legal rules and law enforcement practice, the score setting of evaluation criteria corresponds to the quantitative index of evaluation factors, which means that the quantitative index of evaluation factors should have clear sub-index or continuous interval sub-index, clear sub-index corresponds to objective fixed score, and continuous interval sub-index corresponds to subjective continuous interval score.

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