If the consortium wins the bid, all parties of the consortium shall * * * sign a contract with the tenderer and bear joint and sev
If the consortium wins the bid, all parties of the consortium shall * * * sign a contract with the tenderer and bear joint and several liabilities for the winning project. In practice, joint bid's improper handling will lead to certain legal and tax risks. The specific analysis is as follows.
I. Relevant laws and regulations of joint bid
According to the relevant laws and regulations of joint bid, it is summarized as follows:
1. The consortium can only bid as a bidder. After winning the bid, all parties of the consortium shall sign a contract with the tenderer.
According to Article 31 of the Bidding Law of People's Republic of China (PRC) and Article 42 of the Measures for Bidding of Construction Projects (Order No.30 of Seven Ministries), two or more legal persons or other organizations may form a consortium to jointly bid as a bidder. After signing the bidding agreement, the parties to the consortium may not bid separately in their own names, nor may they form a new consortium or participate in other consortia to bid for the same project. If the consortium wins the bid, all parties of the consortium shall * * * sign a contract with the tenderer and bear joint and several liabilities for the winning project.
2. A consortium composed of units of the same major shall determine the qualification level according to the units with lower qualification level, and undertake the project according to the business license scope of the units with lower qualification level.
According to the provisions of Article 31 of the Bidding Law of People's Republic of China (PRC) and Article 27 of the Construction Law of People's Republic of China (PRC), all parties to the consortium should have the corresponding ability to undertake the bidding project, and all parties to the consortium should have the corresponding qualifications. A consortium composed of units of the same major shall determine the qualification level according to the units with lower qualification level. Large-scale construction projects or construction projects with complex structures can be jointly contracted by two or more contractors. * * * Both parties to the contract shall be jointly and severally liable for the performance of the contract. Where two or more units with different qualification levels jointly contract the project, the project shall be contracted according to the business license scope of the unit with low qualification level.
For example, the procurement of an air conditioner, on-site installation, bidding documents require the qualification of electromechanical installation of the Ministry of Construction.
Assuming to participate in the bidding in the form of a consortium, in which A sells air conditioners without the electromechanical installation qualification of the Ministry of Construction, and B installs air conditioners with the electromechanical installation qualification of the Ministry of Construction, and it is clearly stated in the division agreement that B is responsible for the installation, then this consortium is in line with the bidding documents. However, if the consortium does not specify who will undertake the installation work in the division agreement, the consortium will not meet the requirements according to the principle of "low is not high". Therefore, the division of labor between * * * and the bidding agreement is crucial.
For another example, in the general contracting bidding of steel structure construction, bidder A has the first-class qualification of construction and the second-class qualification of steel structure, and bidder B has the first-class qualification of steel structure, and the two consortia bid separately.
When bidding, A also put its second-level qualification of steel structure in the bidding documents, so according to the principle of "low is not high", this consortium should be identified according to the second-level qualification of steel structure, and as a result, this consortium did not meet the requirements. In order to ensure the effectiveness of joint bid and meet the bidding requirements, the bidding documents do not include the second-level qualification of steel structure of A. Or in the division of labor agreement in the joint bid Agreement, it is clear that the steel structure is made by B, so even if A attaches the second-class qualification of steel structure in the bidding documents, it still meets the requirements of the bidding documents.
3. The bidding agreement signed by the parties to the consortium must be submitted to the tenderer together with the bidding documents.
According to the provisions of Article 31 of the Bidding Law of People's Republic of China (PRC), all parties to the consortium should sign a * * bidding agreement, clearly stipulate the work and responsibilities that each party should undertake, and submit the * * bidding agreement together with the bidding documents to the tenderer.
4. The consortium bidding must designate a leader, submit a power of attorney signed by the legal representatives of all consortium members to the tenderer, and submit a bid bond to the tenderer in the name of the leader.
According to the provisions of Articles 44 and 45 of the Measures for Tendering and Bidding of Construction Projects (Order No.30 of Seven Ministries), each party of the consortium shall designate a leader and authorize him to preside over and coordinate the bidding and contract implementation stage on behalf of all consortium members, and shall submit a power of attorney signed by the legal representatives of all consortium members to the tenderer. Where a consortium bids, a bid bond shall be submitted in the name of the parties to the consortium or the leader in the consortium. The bid bond submitted in the name of the leader of the consortium is binding on all members of the consortium.
5. If the parties to a consortium bid separately in their own names or participate in the bidding of other consortia of the same project subject to tender, the relevant bidding is invalid.
According to the third paragraph of Article 37 of the Regulations for the Implementation of the Bidding Law, if the parties to a consortium bid separately in their own names or participate in the bidding of other consortia in the same bidding project, the relevant bidding is invalid? . ? The same bidding project? Refers to the same project contract. If the general contracting project has only one overall project, that is, only one contract, what is such a bidding project? The same bidding project? ; Another example is that an overall project is divided into multiple blocks, that is, when each block is a contract, what is each block? The same bidding project? .
So, if a project is divided into four blocks for bidding, when Company A forms a consortium with others in the second block and bids in the first block alone, it is bidding in different blocks, that is, it is absent? The same bidding project? Multiple bids are valid at the same time; If Company A and others form a consortium to bid in the second bid section, and Company A bids in the second bid section alone, what is this? The same bidding project? That is, the same bidding contract bidding twice is an invalid bidding behavior.
6. If the parties to a consortium bid separately in their own names or participate in the bidding of other consortia of the same project subject to tender, the relevant bidding is invalid.
According to the third paragraph of Article 37 of the Regulations for the Implementation of the Bidding Law, if the parties to a consortium bid separately in their own names or participate in the bidding of other consortia in the same bidding project, the relevant bidding is invalid? The same bidding project? Refers to the same project contract. If the general contracting project has only one overall project, that is, only one contract, what is such a bidding project? The same bidding project? ; Another example is that an overall project is divided into multiple blocks, that is, when each block is a contract, what is each block? The same bidding project? .
So, if a project is divided into four blocks to bid, when Company A forms a consortium with others in the second block and bids in the first block alone, it is bidding in different blocks, that is, it is absent? The same bidding project? Multiple bids are valid at the same time; If Company A and others form a consortium to bid in the second bid section, and Company A bids in the second bid section alone, what is this? The same bidding project? That is, if the same bidding contract bids twice, it is an invalid' bidding behavior'.
Second, the legal risk of the consortium winning the bid
The first paragraph of Article 48 of the Bidding Law of People's Republic of China (PRC) (promulgated by 1999) stipulates:? The winning bidder shall fulfill its obligations in accordance with the contract and complete the winning project. The winning bidder shall not transfer the winning project to others, nor shall it dismember the winning project and transfer it to others separately. ? Item (2) of Article 78 of the Regulations on Quality Management of Construction Projects (promulgated in 2000) stipulates that the contractor entrusts a part of its contracted construction projects to other units without the consent of the construction unit, which is not stipulated in the general contract of construction projects. ?
According to the above-mentioned laws and policies, the legal risks in joint bid are mainly reflected in: the bidding agreement signed by all parties in joint bid was not submitted to the tenderer, and the contract was not signed with the tenderer, but the leader of the consortium signed a general contract with the tenderer, and then the members of the consortium signed a subcontract with the leader, which is illegal subcontracting.
1, legal analysis
Analysis on the Legal Nature of (1)A's Cooperative Bidding Agreement with Liao Jian Group
A The cooperative bidding agreement signed with Liao Jian Group means participating in the bidding in the name of Liao Jian Group. After winning the bid, 49% of all the winning projects will be handed over to A, and A will pay the management fee to Liao Jian Group. This agreement is cooperation in form, but during the bidding process of Liao Jian Group, both parties failed to sign the * * * agreement with the tenderer according to law, nor did they submit the * * agreement signed with the tenderer, nor did they sign the * * * contract with the tenderer after winning the bid. After Liao Jian Group won the bid, Party A failed to sign a contract with the tenderer according to law. Therefore, the contract signed by both parties is actually a subcontracting agreement. This kind of subcontracting behavior is not approved by the construction unit, which violates the mandatory provisions of the law and belongs to illegal subcontracting.
(2) The legal analysis of whether the cooperative bidding agreement signed between A and Liao Jian Group is legal and effective.
Liaoning Provincial Highway Construction Bureau, the construction unit, stipulated in the tender documents that the consortium was refused to bid and repeated bidding was not allowed. Both A and Liao Jian Group are aware of this. The signing of the cooperative bidding agreement between the two parties evades the requirements of the construction unit, which is malicious collusion and infringes on the legitimate rights and interests of the construction unit. In addition, the cooperative bidding agreement signed by both parties is an illegal subcontracting agreement, so it should be confirmed that the cooperative bidding agreement signed by A and Liao Jian Group is invalid.
(3) Legal analysis of whether the penalty clause is supported after the cooperation bidding agreement is invalid.
A The request for Liao Jian Group to pay liquidated damages based on invalid agreement is unfounded and should not be supported. In view of the fact that A has provided Liao Jian Group with a bid bond of140,000 yuan, and Liao Jian Group actually used the bond to bid, Liao Jian Group should compensate it for the interest during the period of using the bid bond of A, and compensate A for the interest loss according to the interest rate of similar loans in the same period stipulated by China People's Bank.
Third, the tax risks in joint bid.
1. Falsely issuing VAT invoices has tax-related risks.
In the operation of joint bid, a construction unit (usually the lead unit of the consortium) forms a consortium with other units, bids in the name of the consortium, and signs a contract with the owner. The general contracting contract or tender letter and bid-winning notice stipulate the contract amount of the parties to the consortium. Leaders do not sign subcontracts with the parties to the consortium. In this case of contract transfer, is it deducted according to VAT? Fourth-rate unification? According to the requirements, the consortium leader and other parties respectively settle the project with the owner, issue VAT invoices to the owner respectively, and the owner pays the project funds to the consortium leader and other parties respectively.
However, in practice, the following phenomena often occur: the capital flow, ticket flow, taxable labor flow and contract flow are not unified: the owner only checks the work of the leader in the consortium, collects invoices and allocates funds, and the leader checks the work again, collects invoices and allocates funds to other units in the consortium.
In this mode, because the leader of the consortium has not signed a subcontract with other parties in the consortium, the flow of funds, invoices and taxable services are inconsistent with the contract contents, and the contents of the special VAT invoices issued to the owners are inconsistent with the taxable services, which is a major tax-related risk.
2. The capital flow is inconsistent with the bill flow, taxable service flow and contract flow, so the tax risk of VAT input tax cannot be deducted.
In the actual business of consortium bidding, we bid abroad and sign a contract with the owner in the name of consortium. The general contracting contract or tender letter and bid-winning notice stipulate the contract amount of the parties to the consortium. There is another phenomenon: the leaders and other parties in the consortium respectively settle the project with the owner and issue VAT invoices to the owner, but the owner pays all the project funds to the leaders, and then the leaders pay the other parties in the consortium separately instead of the owner.
This project payment mode, that is, the leader in the consortium pays the project funds of other parties in the consortium on behalf of the owner, leads to the inconsistency of capital flow, ticket flow, taxable service flow and contract flow. According to Item (3) of Article 1 of Guo Shui Fa 1995 192 and Announcement No.39 of State Taxation Administration of The People's Republic of China, People's Republic of China (PRC), the tax risk of VAT input tax cannot be deducted.
Four, joint bid's legal and tax risk management and control
1, legal risk control point
First, the parties to the consortium should have the corresponding ability to undertake the bidding project and the corresponding qualifications for survey, design, construction and supervision; A consortium composed of units of the same major shall determine the qualification level and undertake the project according to the units with lower qualification level.
Second, because the consortium bid is not accompanied by the bidding agreement of all parties to the consortium, the bid evaluation committee will generally treat it as a waste bid, so all parties to the consortium should sign a joint bidding agreement, clearly stipulate the work and responsibilities that each party should undertake, and submit the joint bidding agreement to the tenderer together with the bidding documents.
Third, if the consortium bids, the bid bond shall be submitted in the name of the parties to the consortium or the leader of the consortium. The bid bond submitted in the name of the leader of the consortium is binding on all members of the consortium.
Fourthly, the consortium should bid together as a bidder. After signing the bidding agreement, the parties to the consortium may not bid separately in their own names, nor may they form a new consortium or participate in other consortia to bid for the same project.
V. When submitting the bid documents, the joint bid Agreement signed by all parties of the consortium and stamped with the official seal of the bidder and the seal of the legal representative shall be submitted.
2. Key points of tax risk control
In order to avoid tax risks, the following control points are adopted.
(1) When the consortium signs a consortium contract with the owner, the engineering interfaces of the parties to the consortium and their respective amounts shall be specified in the joint contract. In the process of construction, when the project interface and amount between the parties to the consortium change, it is suggested to re-sign the consortium agreement to ensure that the invoice amount and the amount received by the parties are consistent with the contract content and meet the requirements of value-added tax collection and management.
(2) In order to ensure that the consortium project meets the requirements of VAT collection and management, the following strategies must be adopted:
① Capital flow: each owner of the consortium pays each party of the consortium separately;
(2) Invoice process: each party of the consortium issues invoices to the consortium owner respectively;
③ Valuation: The owners of the consortium price the parties of the consortium separately.