Part 2 Interpretation Chapter 2 Tendering
China National People’s Congress website on October 18, 2000 View font size: Large, Medium, Small Print this page
This chapter is about tendering The regulations, ***17, respectively stipulate the following contents: (1) The definition of a tenderer and which entities can serve as tenderers for bidding (Article 8); (2) Bidding projects that require project approval according to regulations should After pre-approval, the source of funds for the bidding project shall be confirmed and truthfully stated in the bidding documents (Article 9); (3) Two bidding methods that the tenderer can use (Article 10); (4) National and local Key projects must be subject to public bidding, and the invitation to bid method must be approved because it is not suitable for public bidding (Article 11); (5) The bidder can entrust a bidding agency to conduct bidding on its behalf, and those who meet the conditions can also conduct bidding on their own. It is prohibited Forcibly designating a bidding agency for the bidder, and prohibiting the bidder from entrusting a bidding agency to conduct bidding (Article 12); (6) The nature of the bidding agency, the conditions it should have, and the competent department responsible for its qualifications (Article 13) , Article 14); (7) The bidding agency shall engage in bidding business within the scope entrusted by the tenderer (Article 15); (8) Public bidding shall publish a bidding announcement and the main matters that shall be stated in the announcement (Article 16) ; (9) Requirements on the number of invitees and basic conditions for bidding invitations and the main matters that should be stated in the invitation to bid (Article 17); (10) Qualification review of potential bidders by the tenderer (Article 18) ; (11) Basic requirements for the tenderer to prepare bidding documents (Articles 19 and 20); (12) The tenderer may organize bidders to visit the project site (Article 21); (13) The tenderer’s information on the relevant information regarding the tendering process Obligation of confidentiality (Article 22); (14) Clarification and modification of bidding documents (Article 23); (15) The tenderer should reasonably determine the deadline for submitting bid documents (Article 24).
Article 8 The tenderer is a legal person or other organization that proposes a bidding project and conducts bidding in accordance with the provisions of this Law.
Interpretation This article is about the definition of tenderer.
1. The provisions on the definition of tenderer in this article include two meanings:
1. The tenderer must be the person who proposes the bidding project and conducts the bidding. The so-called "tendering projects" refer to projects, goods or services purchased through bidding. The tenderer for bidding and contracting of engineering construction projects is usually the investor of the construction project, that is, the project owner; for engineering construction projects invested by the state, the tenderer is usually the project legal person established in accordance with the law (for commercial construction projects) or the project owner. The construction unit (for non-commercial construction projects). The bidder for goods bidding and procurement is usually the buyer of the goods. The bidder for the bidding and procurement of service projects is usually the demander of the service project.
2． The tenderer must be a legal person or other organization, and a natural person cannot be the tenderer. The General Principles of Civil Law of our country stipulate that a legal person is an organization that has the capacity for civil rights and civil conduct, and independently enjoys civil rights and assumes civil obligations in accordance with the law. A legal person shall meet the following conditions: (1) be established in accordance with the law; (2) have necessary property or funds; (3) have its own name, organizational structure and location; (4) be able to bear civil liabilities independently. According to the provisions of the General Principles of Civil Law, legal persons include enterprise legal persons, public institution legal persons, agency legal persons and social group legal persons. Corporate legal persons include companies and other enterprises with legal personality. According to the general principles of the Civil Law and the provisions of this article, limited liability companies and joint-stock companies with various forms of ownership, wholly state-owned companies, other types of state-owned enterprises and collectively owned enterprises other than companies, as well as Chinese-foreign cooperative joint ventures and foreign-invested enterprises that have obtained legal person status in accordance with the law etc., all have the right and ability to participate in bidding and bidding activities as bidders; state agencies at all levels with independent funds, public institutions and social groups that have obtained legal person status in accordance with the law also have the right and ability to participate in bidding and bidding activities as bidders. Other organizations referred to in this Law refer to entities other than legal persons, including partnerships, sole proprietorships, foreign enterprises, and branches of enterprises. These enterprises and institutions can also participate in bidding activities as bidders. In view of the fact that projects purchased through bidding usually have large bids, high costs, wide scope of influence, and greater responsibilities of the bidder, in order to effectively protect the rights and interests of all parties to the bidding, this law does not give natural persons the right to become the bidder.
But this does not mean that projects invested by individuals cannot be procured through bidding. For projects invested by individuals, a project company can be established as the tenderer.
2. The provisions on bidders in this article basically cover the scope of bidders that appear in current practice in my country. Since my country began to implement the bidding system in the early 1980s, it has carried out bidding in many fields such as capital construction projects, complete sets of machinery equipment, imported electromechanical equipment, science and technology projects, government agency office equipment and large-scale office supplies procurement. Activities and bidding entities are mainly construction units (project legal persons) of engineering construction projects, enterprises, and state agencies that implement the government procurement system. Judging from the situation abroad, the projects that are required to be tendered by law are mainly government procurement projects, and the specified tendering entities are usually state agencies, local authorities and public enterprises; in addition, they also include businesses engaged in water, energy, transportation and telecommunications. Enterprises granted exclusive rights by the state and other legal persons without industrial or commercial nature funded by the national government.
3. The legal significance of this article is that determining the subject qualifications of the tenderer stipulates who can become a tenderer to engage in tendering activities, which is conducive to further clarifying the legal status of the tenderer and stipulating the rights he should enjoy. The rights and obligations should be borne, making the distinction and connection between the tenderee and other subjects clearer and clearer; from a legislative technical point of view, this provision cooperates with the provisions of this law on the scope of application and adjustment objects, and what issues are solved The question of who can bid and which projects must be bid makes the entire regulations more consistent with my country's reality and more normative.
Article 9 If a bidding project requires project review and approval procedures in accordance with relevant national regulations, the review and approval procedures must be completed first and approval must be obtained.
The tenderer should have the corresponding funds for the bidding project or the source of funds has been confirmed, and it should be truthfully stated in the bidding documents.
Interpretation This article is about the pre-approval of bidding projects and the provisions that should be implemented on the sources of bidding funds.
1. Projects that require bidding according to the law as stipulated in Article 3 of this Law, including large-scale infrastructure, public utilities and other projects related to the interests of the public and public safety, use state-owned funds in whole or in part Investment or state-financed projects, as well as projects using loans and aid funds from international organizations or foreign governments. Most of these projects are related to the national economy and people's livelihood, and involve the scale of fixed asset investment in the whole society. Therefore, most projects require project approval according to relevant national regulations. This approval work should be completed before bidding. Generally speaking, national key construction projects need to be proposed by the planning department of the provincial people's government and the relevant departments of the State Council, and approved by the planning department of the State Council. Some also need to be submitted to the State Council for approval; national pilot concession projects are subject to the approval of the province ( The planning department of the district or city) together with the industry authorities will submit a project pre-feasibility study report, which will be approved by the State Planning Commission after preliminary review by the industry authorities. If necessary, it will be submitted to the State Council for approval after preliminary review by the State Planning Commission; local key construction projects will be based on their importance. The nature and scale shall be examined and approved by the provincial people's government and the planning department of the provincial people's government respectively.
The projects to be tendered should be legal, which is the prerequisite for carrying out tendering work. Projects that should be approved according to relevant national regulations but have not been approved, or projects that are approved in violation of the approval authority shall not be subject to bidding. If the bidding process is started without authorization before the project is approved, and any losses are caused because the project is not approved, the tenderer shall bear legal responsibility. For projects that are not required to be reviewed and approved by the state, the tenderer can decide the tendering time on its own.
2. The tenderer should have the corresponding funds for the bidding project or a confirmed source of funds. This is the material guarantee for the tenderer to bid for the project and ultimately complete the project. Whether the funds required for a bidding project are secured is not only related to the smooth implementation of the bidding project, but also has a significant bearing on the interests of the bidders. In order to obtain a bidding project, bidders usually carry out a lot of preparation work and invest a lot of money. If there is no guarantee of funds after winning the bid, it will inevitably cause the construction to be unable to start or stop midway after starting, or the bidder, as the owner of the goods, will have no money after winning the bid. Buy goods, which will harm the interests of the bidder. If it involves large-scale infrastructure, public utilities and other projects, it will also cause damage to public interests. Therefore, it must be emphasized that the tenderer should have financial guarantees commensurate with the project when bidding.
Judging from current practice, funding sources for bidding projects generally include: financial allocations from national and local governments, enterprises’ own funds and various forms of financing including bank loans, as well as loans from foreign governments and relevant international organizations. According to the provisions of this article, the tenderer must actually have the corresponding funds when bidding, or have legal documents that can prove that its funding sources have been implemented as a guarantee, and the amount and source of funds must be truthfully stated in the bidding documents.
As a civil activity, bidding activities must adhere to the principle of good faith. The content contained in the bidding documents must be true. The amount and source of funds must be truthfully stated, and the tenderer must not make any false claims.
3. This provision of this article is particularly targeted at bidding for construction projects. Since my country's construction market has always been a buyer's market in recent years and has been in a state of oversupply for a long time, some bidding units take advantage of bidders' eagerness to find construction projects and force bidders to advance funds for construction. This not only damages the interests of bidders, but also makes it difficult to guarantee The construction progressed smoothly and was completed on schedule. In order to maintain the normal order of the construction market and effectively protect the legitimate rights and interests of all parties involved in bidding, this article makes special provisions on the financial security of the bidder.
Article 10 Bidding is divided into public bidding and invitation bidding. Public bidding means that the tenderer invites unspecified legal persons or other organizations to bid in the form of a bidding announcement.
Invitation to bid means that the bidder invites specific legal persons or other organizations to bid in the form of a bid invitation letter.
Interpretation This article is about the regulations on bidding methods.
1. Bidding has been a major transaction method for large-amount purchases abroad for many years. Bidding activities can be divided into various forms according to different standards. For example, according to their nature, they can be divided into open bidding, which is unlimited competitive bidding, and invitation bidding, which is limited competitive bidding; according to the scope of competition, they can be divided into international competitive bidding. Bidding and domestic competitive bidding; engineering construction projects are divided according to the price determination method, which can be divided into fixed-price project bidding, cost-plus-remuneration project bidding, and constant-unit-price project bidding, etc. No matter which bidding method is used, it is inseparable from the basic characteristics of bidding, that is, openness, competition and fairness of bidding. The openness of the bidding means that the bidding has the characteristics of public announcement of bidding invitations and public opening of bids; its bidding procedures, bidder qualification review standards and bid winning selection criteria are all determined in advance in accordance with the law and disclosed to potential bidders through legal forms, thereby making the bidding The activity has a high degree of transparency; the competitiveness of the bidding means that the bidder maximizes the potential bidders' quotations by soliciting bids from more people, and purchases with the lowest price, best quality, and efficiency through shopping comparison. The highest project, good or service. This market economy method has enabled many bidders to undergo competition, optimization and cruel elimination processes, making bidding activities more scientific and market-oriented; the fairness of bidding refers to the fairness among bidders participating in the bidding. With equal legal status, they will be evaluated under the same well-known bid evaluation standards, and the tenderer will not be allowed to conduct one-on-one negotiations with individual bidders. Based on the basic nature of the above-mentioned bidding activities and combined with the actual situation of bidding activities in our country, this law stipulates that bidding is divided into two basic forms: public bidding and invitational bidding.
1. Public bidding, also known as unlimited competitive bidding, refers to a bidding process in which the tendering party publishes a bidding announcement in a public publication in accordance with legal procedures. All qualified suppliers or contractors can participate in the bidding competition on an equal basis, and the winning bidder is selected on the basis of merit. Way. According to the provisions of this article, public bidding must meet the following conditions: (1) The tenderer must issue a bidding invitation to unspecified legal persons or other organizations (some scientific research project bidding may also include individuals). The bidder shall publish information on its bidding projects, specific equipment or project contents to be purchased through public media familiar to the whole society, and extend invitations to unspecified people. Any legal person or other organization or individual that believes that it meets the requirements of the tenderer has the right to request the bidding documents from the tenderer and submit a bid at that time. When public bidding is adopted, the tenderer shall not use any excuse to refuse to sell bidding documents to qualified bidders. For projects that require bidding according to law, the tenderer shall not illegally restrict any potential bidder from participating in the bidding on the basis of different regions or departments. (2) Public bidding must take the form of an announcement to clearly indicate the bidding requirements to the public, so that as many potential bidders as possible can obtain the bidding information and come to bid, thus ensuring the openness of the public bidding.
In real life, people often see "XXX Bidding Notice" in newspapers. This method is the public bidding method. Procurement through other methods, such as sending letters to individual suppliers or contractors, is not an announcement method and should not be adopted by public tenderers. There are many ways to publish bidding announcements, such as newspapers, radio, the Internet and other public media. The advantage of public bidding is that it can select bidders to the maximum extent, is more competitive, and has a higher selection rate. At the same time, it can also avoid bribery in bidding activities to a large extent. Therefore, international government procurement usually adopts this method. way.
2. Invitation bidding, also known as limited competitive bidding, refers to a bidding method in which the tendering party selects a number of suppliers or contractors and issues bidding invitations to them. The invited suppliers and contractors bid for the competition and select the winning bidder. As mentioned above, public bidding has great advantages in terms of its degree of openness and the breadth of competition. However, public bidding also has certain shortcomings. For example, due to the large number of bidders, it generally takes a long time and costs more. For tenders with smaller procurement targets, public tendering often outweighs the gains and losses; in addition, some projects are highly professional and have fewer potential bidders qualified to undertake them, or the procurement tasks need to be completed in a shorter period of time, etc. , and it is not advisable to use public bidding. The invitation-to-tender method makes up for these shortcomings to a certain extent, and at the same time can relatively fully leverage the advantages of tendering. According to the provisions of this article, the characteristics of invitational bidding are: (1) The tenderer invites specific legal persons or other organizations (some scientific research project bidding may also include individuals) to bid within a certain range. Unlike public bidding, invitational bidding does not require invitations to unspecified persons. However, in order to ensure the competitiveness of the bidding, the specific objects of the invitational bidding should also have a certain scope. According to the provisions of Article 17 of this Law, the tenderer shall Invitations are sent to more than 3 potential bidders. (2) Invitation to bid does not require an announcement. The tenderer only needs to issue a bid invitation to specific potential bidders. Only those who accept the invitation are eligible to bid. Others have no right to request bidding documents and are not allowed to bid. It should be pointed out that although invitational bidding is different from public bidding in the selection of potential bidders and the form of notification, the procedures and principles applicable to it are the same as those in public bidding, and they are all the same in terms of bid opening and bid evaluation standards. Public, therefore, invitation to tender still retains its openness.
Invitation for bidding can be conducted in a two-stage manner. When the tenderer lacks sufficient experience in a new project and is not sure of its technical indicators, it can conduct extensive research and solicit opinions through technical exchange meetings and other methods. After collecting a large amount of technical information and evaluating it, it can then submit the bid to the selected project. A specific legal person or organization issues a bid invitation, inviting the selected bidders to submit detailed quotations.
2. Public bidding and invitational bidding are the two most widely used methods in the world. Due to their own characteristics, some countries stipulate that the tenderer can choose to apply them. For example, the EU law on public procurement stipulates that if the procurement amount exceeds the legal limit, bidding must be used. The project legal person has the right to freely choose public bidding or invitational bidding. In practice, the invitational bidding method often gets more approval. use. Some countries or international organizations stipulate that public bidding should be used under normal circumstances, and invitation bidding can only be selected if the specified conditions are met. Based on the characteristics of the two forms of bidding and their use in my country, this law is based on the principle that it is not only conducive to ensuring the breadth of competition, but also conducive to economy and time, and can basically ensure the quality of bidding. In addition to Article 11 of the national and In addition to the necessary restrictions on the use of invitational bidding for local key projects, the tenderer is allowed to choose the above two bidding methods on his own.
3. In our country’s practice, especially in the field of construction, there is also a more widely used procurement method, called “negotiation”. In essence, it is negotiated procurement, where the buyer and the person being purchased are It is a procurement method that ultimately achieves the purpose of procurement through one-to-one negotiation between people. It is not open and competitive, and therefore does not belong to the bidding procurement method referred to in this law. From a practical point of view, the procurement methods of public bidding and invitational bidding require that quotations and technical terms are not negotiated, while bid negotiation allows one-on-one negotiation on quotations, etc. Therefore, for some projects, such as some small construction projects, the negotiation method has clear objectives, saves time and effort, and is more flexible. For service bidding, since the service price is difficult to determine publicly and the service quality also needs to be resolved through negotiation, it is a good idea to use the negotiation method. an appropriate procurement method.
However, because bidding is not open and competitive, it is easy to produce behind-the-scenes transactions, behind-the-scenes operations, and breed corruption, making it difficult to guarantee the quality of procurement. According to statistics from some provinces, 40% of all economic crime cases are related to bidding. The vast majority of such criminal cases are related to the negotiation method of bidding. Based on the basic characteristics of bidding and the problems existing in my country's practice, this law does not stipulate bid negotiation as a bidding method. In accordance with the provisions of this article, any project that requires bidding according to Article 3 of this Law and a project that is voluntarily procured through bidding in accordance with Article 2 of this Law shall not adopt the method of bidding.
Article 11 If the national key projects determined by the development planning department of the State Council and the local key projects determined by the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government are not suitable for open bidding, they shall be approved by the development planning department of the State Council or the provinces, autonomous regions, and municipalities directly under the Central Government. With the approval of the People's Government, invitation to bid can be conducted.
Interpretation This article is about the regulations on the bidding methods used in bidding for national key projects.
1. The national key projects determined by the development planning department of the State Council are the backbone projects that have a significant impact on the national economy and social development and are identified from the national large and medium-sized capital construction projects. Specifically, they include: infrastructure, Large-scale projects in basic industries and pillar industries, high-tech projects that can drive technological progress in the industry, cross-regional projects that have a significant impact on national economic development or regional economic development, and projects that have a significant impact on social development, etc. Local key projects include projects that have a significant impact on local economic and social development as determined by local people's governments at the provincial level based on local specific conditions. Most of these projects use state-owned funds, and the quality and progress of the projects directly affect people's lives and the development of the national economy. In order to ensure the quality of projects to the greatest extent, save state-owned funds, and improve the efficiency of the use of funds, it is necessary to use public bidding as much as possible to achieve the fullest competition. Some large-scale, technologically advanced national key projects also need to recruit bidders through international competitive bidding. For this reason, the provisions of this article should be understood as follows: national key projects and local key projects that must be tendered according to law should generally be tendered through public tendering.
2. The projects that are not suitable for public bidding as stipulated in this article refer to the projects that cannot be procured through public bidding due to the reasons of the project itself (for example, the project has complex technical requirements or special professional requirements, There are only a few potential bidders to choose from), or the use of public bidding for procurement does not meet the requirements of economic rationality (for example, some key projects are very important, but the project scale is small, and the cost required by public bidding is Not proportional to time, it is necessary to limit the number of bidders to achieve savings and efficiency). As for which projects are not suitable for public bidding, it needs to be judged by the approval authority stipulated in this article based on the specific circumstances of each project. In accordance with the provisions of this article, for national and local key projects that are not suitable for public bidding, invitational bidding may be adopted upon approval.
3. In order to prevent the tenderer from circumventing the public bidding that should be conducted on the grounds that the project is not suitable for public bidding, this article stipulates the approval process for key projects to adopt the invitation bidding method, that is, the national key projects adopt the invitation bidding method. If the project adopts the invitation bidding method, it must be approved by the national development planning department; if the local key project adopts the invitation bidding method, it must be approved by the provincial people's government.
Article 12 The tenderer has the right to choose a bidding agency on its own and entrust it to handle bidding matters. No unit or individual may designate a bidding agency for the bidder in any way.
If the tenderer has the ability to prepare bidding documents and organize bid evaluation, it may handle bidding matters on its own. No unit or individual may be forced to entrust a bidding agency to handle bidding matters.
For projects that require bidding according to law, if the tenderer handles the bidding matters on his own, he shall file a record with the relevant administrative supervision department.
Interpretation This article is about the right of the tenderer to solicit tenders on its own or to entrust others to solicit tenders on its behalf.
1. According to the provisions of paragraph 1 of this article, the tenderer has the right to select a bidding agency on its own and entrust it to handle bidding matters. This provision has three meanings: (1) The tenderer's entrustment of a tendering agency is a voluntary entrustment, that is, the tenderer decides whether to entrust a tendering agency. The law does not require that all tendering activities must entrust a tendering agency to act as an agent for tendering.
(2) The tenderer shall decide which bidding agency to entrust for bidding, and shall not be restricted by any unit or individual. No unit or individual, including the higher-level authorities and relevant leaders of the tenderer, may designate a bidding agency for the tenderer in any way, including by regulations, making administrative decisions, leaders approving notes, making phone calls, etc., and shall not take any action. This method exerts various pressures on the tenderers, forcing them to entrust specific tendering agencies to act as agents for tendering. (3) The relationship between the tenderer and the tendering agency is a principal-agent relationship. According to the provisions of this article and the General Principles of Civil Law of my country, this principal-agent relationship is as follows: the bidding agency is entrusted by the tenderer, and within the scope of the bidding agency authority, organizes the bidding work in the name of the tenderer, the tenderer is the principal, and the tendering agency is Trustee; the tenderer shall bear civil liability for the agency acts of the tendering agency. If the tenderer entrusts a bidding agency to engage in bidding work, it shall sign a written entrustment contract with the bidding agency, clearly stipulating the agency authority of the bidding agency, so as to distinguish responsibilities, avoid ultra vires agency and unnecessary disputes, and ensure the smooth progress of the bidding agency work. .
2. According to the provisions of paragraph 2 of this article, if the bidder has the ability to prepare bidding documents and organize bid evaluation, it may handle bidding matters on its own. The meaning of this provision is: (1) A capable bidder can handle the bidding by himself and does not need to entrust others to handle it; (2) The bidder must have certain conditions to handle the bidding business by himself, that is, the bidder should have the ability to prepare bidding documents and organize Bid evaluation ability. This is because: First, the bidding document is the most important document that binds both the tenderer and the bidder in the entire bidding activity. It is the charter of the bidding activity. It includes the main technical terms and price requirements of the bidding project, bid evaluation standards and main contract terms and other major substantive information. It is highly professional and complex, and requires the compiler's professional level, bidding experience and mastery of bidder information. Higher, whether a complete and rigorous bidding document can be prepared directly affects the quality of the bidding and is also the key to the success or failure of the bidding. Therefore, if the tenderer invites bids by itself, the tenderer is required to have corresponding professionals and have the ability to independently prepare bidding documents. Second, effectively organizing bid evaluation is an important link to ensure that the bid evaluation work is carried out in strict accordance with the requirements of the bidding documents and bid evaluation standards, to maintain the fairness and fairness of the bidding, to avoid disputes, and to ensure the successful completion of the bidding work. Therefore, if the tenderer invites bids on its own, it must have the ability to effectively organize bid evaluations. If it is necessary to have a dedicated team to specifically organize the work, it must have a broad understanding of the expert sources of the bidding project, etc.
In order to ensure the quality of self-tendering and prevent self-tenderers from soliciting bids without authorization or arbitrarily changing the bidding procedures and bid evaluation standards, causing confusion in the bidding work, supervise the provision of equal competition to bidders. Opportunities to effectively protect the legitimate rights and interests of bidders. Paragraph 3 of this Article stipulates that for projects that must be tendered in accordance with Article 3 of this Law, if the tenderer handles the tendering matters on his own, he shall file a record with the relevant administrative supervision department. Although the filing system is not a pre-approval system, it only requires the parties to notify the relevant administrative supervision departments in writing for future reference when conducting self-tendering. However, the relevant administrative supervision departments can grasp the situation through the filing system. If it is found that the self-tendering party does not meet the legal conditions , have the right to request correction.
According to the provisions of this article, for projects subject to voluntary tendering, if the tenderer solicits tenders on his own, no filing is required.
3. The tenderer is the owner of the project to be tendered and is the main body of the market economy. He has the independent right to handle tendering on his own or entrust others to tender. However, in recent years, in practice, some places and departments have illegally interfered in bidding activities. It is not uncommon for the bidding unit to entrust an agent, or to designate an agency for the bidding unit to seek economic benefits for the department and system. This practice deprives It deprives the tenderer of the right to solicit tenders on his own and voluntarily entrust others to tender, infringes upon the interests of the state and other tendering and bidding entities, prevents tendering activities from being truly fair and just, and disrupts the order of market competition in tendering and bidding. In response to the above-mentioned problems that exist in practice, this article clearly stipulates the right of the tenderer to solicit tenders on his own and to entrust others to tender. It will protect the legitimate rights and interests of parties involved in tendering and bidding activities, maintain the normal order of market competition, and curb corruption in tendering and bidding activities. play a promoting role.
Article 13 A bidding agency is a social intermediary organization established in accordance with the law, engaged in bidding agency business and providing related services.
The bidding agency shall meet the following conditions:
(1) Have a business location and corresponding funds to engage in bidding agency business;
(2) Have the ability to prepare Bidding documents and the corresponding professional strength to organize bid evaluation;
(3) Have technical, economic and other talents who meet the conditions specified in paragraph 3 of Article 37 of this Law and can serve as members of the bid evaluation committee Expert library.
Interpretation This article is about the nature and qualifications of bidding agencies.
1. The legal nature of the bidding agency. A bidding agency is a social intermediary organization established in accordance with the law to engage in bidding agency business and provide related services. There are several meanings here: (1) The nature of a bidding agency is neither a first-level administrative agency nor an enterprise engaged in production and operation, but an organization independent of any administrative agency that provides services to bidders with its own knowledge and intelligence. . A bidding agency can exist in a variety of organizational forms, such as a limited liability company or a partnership. Judging from the current situation in our country, natural persons generally cannot engage in bidding agency business. (2) Bidding agencies must be registered and established in accordance with the law. The establishment of a bidding agency does not require the approval of relevant administrative agencies, but its qualifications to engage in relevant bidding agency business need to be reviewed and determined by the relevant administrative departments. (3) The business scope of the bidding agency includes: engaging in bidding agency business, that is, accepting the entrustment of the tenderer and organizing bidding activities. Specific business activities include helping the tenderer or being entrusted by him to draft tender documents, reviewing the qualifications of bidders according to the provisions of the tender documents, organizing bid evaluation and determination, etc.; providing services related to the tendering agency business refers to providing services related to tendering activities. Relevant consulting, writing and other service work.
2. A bidding agency must meet the following conditions before it can be established: (1) No matter what kind of organizational form the agency is, it must have a fixed business place to facilitate the bidding agency business. (2) It has a professional team and technical facilities that are suitable for the bidding business it represents and can independently prepare relevant bidding documents and effectively organize bid evaluation activities, including professionals who are familiar with the field of bidding business and intelligence that provides industry technical information. Means and certain experience in engaging in bidding agency business, etc. (3) There should be a database of experts in technology, economics and other fields who can serve as members of the bid evaluation committee in accordance with the law. The experts in the reserve should have been engaged in relevant fields for more than 8 years and have senior professional titles or equivalent professional levels.
3. Bidding is a complex and systematic work with complete procedures, many links, strong professionalism, and complicated organizational work. Because the bidding agency specializes in bidding activities, it has a large number of personnel and resources. We have unique conditions in terms of bidding experience, so the bidding work for some large-scale international bidding projects is usually carried out by professional bidding agencies. In recent years, my country's bidding agency business has made great progress. Professional bidding agencies such as mechanical and electrical equipment bidding companies, international bidding companies, and complete equipment companies have appeared one after another. The outstanding work of these agencies has played a role in ensuring the quality of bidding and improving bidding efficiency. beneficial effect. However, there are also some problems that cannot be ignored in the work of bidding agencies, especially the unclear legal nature of bidding agencies, the long-term lack of distinction between government and enterprises, and disorderly competition; some bidding agencies unprincipledly accommodate bidding in order to undertake projects. People's unreasonable demands have damaged the legitimate rights and interests of bidders, violated the principle of fairness in bidding, affected the quality of bidding, and even caused losses to national and collective property. Therefore, in practice, there is an urgent need to clarify the legal status of bidding agencies and strengthen the management of bidding agencies. This law clearly stipulates the nature and establishment conditions of bidding agencies for the first time in law, and will promote the standardization of bidding agency work in our country.
Article 14 The qualifications of a bidding agency engaged in bidding agency business for engineering construction projects shall be recognized by the construction administrative department of the State Council or the people's government of a province, autonomous region or municipality directly under the Central Government. Specific measures shall be formulated by the construction administrative department of the State Council in conjunction with relevant departments of the State Council. For bidding agencies engaged in other bidding agency business, the competent authority for qualification accreditation shall be stipulated by the State Council.
Tendering agencies must not have affiliations or other interests with administrative agencies and other state agencies