★ Can the tenderee or the subsidiary or parent company of the tendering agency participate in the bidding?
★ Can two different subsidiaries controlled by the same legal person participate in the same project bidding?
★ If there is a cross relationship between the shareholders or senior managers of two bidders, is their bid invalid?
In a word, it is actually a question of whether the affiliated companies of all participants can bid or whether the bidding is effective. In this paper, the current laws, regulations and relevant provisions are cited, and the bidding problems of affiliated companies of all participants in the bidding process are analyzed in a targeted manner.
1. What is an affiliated company?
20 16 State Taxation Administration of The People's Republic of China issued the Announcement on Improving Related Matters of Related Party Declaration and Data Management at the same time, in which Article 2 further refines the identification of related enterprises into seven standards:
(1) One party directly or indirectly holds more than 25% of the shares of the other party; Both parties directly or indirectly hold more than 25% of the shares of the third party.
If one party indirectly holds shares with the other party through an intermediary, as long as its shareholding ratio with the intermediary reaches more than 25%, its shareholding ratio with the other party shall be calculated according to the shareholding ratio of the intermediary with the other party.
If two or more natural persons with husband and wife, lineal blood relatives, brothers and sisters and other maintenance relations jointly operate the same enterprise, the shareholding ratio shall be calculated together when determining the relationship.
(2) Both parties have shareholding relations or are third parties. Although the shareholding ratio does not meet the requirements in Item (1) of this article, the total amount of borrowed funds by both parties accounts for more than 50% of the paid-in capital of either party, or more than 65,438+00% of all borrowed funds by one party is guaranteed by the other party (except loans or guarantees with independent financial institutions).
Ratio of total loan funds to paid-in capital = annual weighted average loan funds/annual weighted average paid-in capital, in which:
Annual weighted average borrowing funds = book amount of funds borrowed or lent by me × actual days occupied by funds borrowed or lent by me in the current year /365.
Annual weighted average paid-in capital = book amount of my paid-in capital × days actually occupied by my paid-in capital /365.
(3) Both parties have equity relations or are both held by a third party. Although the shareholding ratio does not meet the provisions of Item (1) of this article, only when one party provides franchise rights such as patent rights, non-patented technologies, trademark rights and copyrights can the other party's production and business activities be carried out normally.
(4) Both parties have a shareholding relationship or both are held by a third party. Although the shareholding ratio does not meet the provisions of Item (1) of this article, the business activities of one party such as purchasing, selling, accepting and providing labor services are controlled by the other party.
The above control means that one party has the right to decide the financial and business policies of the other party, and can get benefits from the business activities of the other party accordingly.
(5) More than half of the directors or senior management personnel of one party (including the secretary of the board of directors, managers, deputy managers, financial officers and other personnel stipulated in the articles of association of the listed company) are appointed or appointed by the other party, or serve as directors or senior management personnel of the other party at the same time; Or more than half of the directors or senior managers of both parties are appointed or appointed by a third party.
(six) two natural persons who have the relationship of husband and wife, lineal blood relatives, brothers and sisters, etc. have one of the relationships from items (1) to (5) of this article with both parties respectively.
(7) Both parties have other substantial interests.
In view of the highly sensitive bidding of affiliated companies of all participants in the bidding process, they are often regarded as suspected of "collusive bidding" and are also the focus of complaints from other bidders. In order to ensure the fairness and justice of the bidding process, it is appropriate to extend the explanation of affiliated companies, so the affiliated companies discussed in this paper refer to the relevant provisions of the tax law.
2. Bidding of affiliated companies related to the tenderer
Enterprises associated with the tenderer tend to be consistent or collude with the tenderer in bidding, which will affect the fairness of bidding.
Therefore, Article 34 of the Regulations for the Implementation of the Bidding Law stipulates that "legal persons, other organizations or individuals who have an interest in the tenderer and may affect the fairness of bidding may not participate in bidding. If the person in charge of the unit is the same person or different units with holding and management relations, they shall not participate in the bidding of the same bid section or the bidding of the same project subject to tender without dividing the bid section. In violation of the provisions of the preceding two paragraphs, the relevant bid is invalid. "
What is "interest relationship" is not explained in detail in the Regulations. The author believes that the affiliated companies related to the tenderee belong to the scope of interest relationship with the tenderee.
Then, is it true that all affiliated companies related to the tenderer can't participate in the bidding or the bidding is invalid?
In view of the ambiguity of the above-mentioned laws and regulations and the frequent cases in reality, the book Interpretation of the Regulations on the Implementation of the Bidding Law interprets the first paragraph of Article 34 of the Regulations on the Implementation of the Bidding Law.
"There is an interest relationship with the tenderer, which may affect the fairness of the tender. Considering that China's economic system reform needs to be further deepened, the economic and social development levels of different industries and regions are different, and the industrial policies and competition policies are coordinated, this article does not prohibit all legal persons, other organizations or individuals who have an interest in the tenderer from participating in the bidding, which makes it necessary to meet the two conditions of "having an interest" and "possibly affecting the fairness of bidding" in the circumstances specified in Article 1 of this article. Even if there is a certain' interest relationship' between the bidder and the tenderer, if the bidding activities are carried out according to law and the procedures are standardized, the' interest relationship' does not affect its impartiality, it can participate in the bidding. "
However, the current laws and regulations are not clear about who can judge and what is the standard of judgment.
Therefore, the author believes that as long as the tenderer abides by laws and regulations in all aspects of bidding, such as the preparation of bidding documents, the setting of bidders' requirements, the selection of bid evaluation experts, the opening of bids, the evaluation of bids and the selection of bids, it is open, fair and just to every bidder, and there is no evidence that it is unfair to other bidders. Under such circumstances, the affiliated companies related to the tenderer can participate in the bidding, and their bids should not be ruled invalid.
At the same time, according to the Regulations on the Implementation of the Government Procurement Law, if the supplier thinks that the purchaser and related personnel have an interest relationship with other suppliers, he may submit a written application for withdrawal to the purchaser or procurement agency and explain the reasons.
To sum up, we can see that the laws and regulations do not directly prohibit the affiliated companies of the tenderee from participating in the bidding. Only when the bidding of affiliated companies may affect the fairness of bidding, it is prohibited to bid. After bidding, as long as the whole bidding process is legal, compliant, fair and just, and there are no illegal acts such as collusion between the tenderer and the tenderee, it should not lead to invalid or rejected bidding.
At the same time, it should be noted that the affiliated company of the tenderer participates in the bidding, and the staff of the tenderer who have an interest in the affiliated company should avoid it.
3. Bidding of affiliated companies related to the tendering agency.
A bidding agency is an institution entrusted by the tenderer to handle bidding matters, and its identity is equivalent to that of the tenderer. Therefore, the relevant provisions of laws and regulations on tenderers are also applicable to tendering agencies, so long as it does not affect the fairness of bidding, the bidding of affiliated companies related to tendering agencies is acceptable.
Similarly, the staff of the bidding agency who has an interest in the affiliated company should avoid it.
The Regulations for the Implementation of the Law on Tendering and Bidding defines the requirements that bidding agencies should abide by, and further prohibits agencies from "bidding on their own" and providing bidding consultation.
"A procuratorial agency shall abide by the provisions of the Bidding Law and these Regulations on bidders when acting as an agent for bidding business. A bidding agency shall not bid or bid on behalf of the bidding project it represents, nor shall it provide advice to the bidders of the bidding project it represents. "
4. Bidding of the bidder's affiliated company
In practice, it is often encountered that many subsidiaries of the same parent company participate in the bidding of the same project at the same time, or the positions of the responsible persons of two bidders overlap, for example, the director of Bidder A is also the supervisor of Bidder B, or the shareholders of Bidder A are also the shareholders of Bidder B, or the legal responsible persons of two bidders are husband and wife, father and son, etc.
Because of the relationship between the two bidders, it is easy to think whether there is the possibility of collusion in bidding. In bid evaluation, some bid evaluation experts often hesitate about how to judge this kind of situation. After the bid evaluation results are publicized, other bidders often question and complain about this relationship.
In view of the above situation, the second paragraph of Article 34 of the Regulations on the Implementation of the Bidding Law stipulates that "the person in charge of a unit refers to the legal representative of the unit or the main person in charge who exercises functions and powers on behalf of the unit as stipulated by laws and administrative regulations." Article 18 of the Regulations for the Implementation of the Government Procurement Law also makes the same provision. Article 50 of the Accounting Law stipulates that "the person in charge of a unit refers to the legal representative of the unit or the main person in charge who exercises functions and powers on behalf of the unit in accordance with laws and administrative regulations."
According to this, it can be seen that only the legal representative or the principal responsible person exercising the functions and powers on behalf of the unit is the same person in different units, or the parent-subsidiary company with holding relationship, or the different units with management relationship, it is forbidden to bid for the same project in the same bid section or without dividing the bid section, and the laws and regulations do not restrict bidders with other related relationships from bidding.
"It can be done without prohibition", except for the three situations stipulated in the second paragraph of Article 34 of the Regulations for the Implementation of the Bidding Law, bidders with other related relationships can participate in the bidding of the same project.
5. Bidding of affiliated companies related to bid evaluation experts
Article 37 of the Tendering and Bidding Law stipulates that "the list of members of the bid evaluation committee shall be kept confidential until the bid winning result is determined." Therefore, before the bidding deadline, potential bidders or bidders should not know the list of bid evaluation experts, so it is impossible to know whether they are related to the bid evaluation experts, their participation in bidding is not restricted, and after entering the bid evaluation stage, their bids will not be rejected because they are related to a bid evaluation expert.
Article 12 of the Interim Provisions on Bid Evaluation Committee and Bid Evaluation Method (Order No.23 of Seven Ministries and Commissions 200 1) further stipulates the situations that bid evaluation experts should avoid, as follows:
In any of the following circumstances, he shall not be a member of the bid evaluation committee: (1) a bidder or a close relative of the bidder's principal responsible person; (two) the personnel of the competent department of the project or the administrative supervision department; (3) Having an economic interest relationship with the bidder, which may affect the fair bid evaluation; (4) Having been subjected to administrative punishment or criminal punishment because of illegal acts in bidding, bid evaluation and other activities related to bidding. Members of the bid evaluation committee shall voluntarily withdraw from any of the circumstances specified in the preceding paragraph.
According to the analysis of the above legal provisions, potential bidders or bidders do not need to consider whether they are related to bid evaluation experts when bidding, and they should not know the list of bid evaluation experts when bidding.
When establishing a bid evaluation committee, the tenderee shall exclude the bid evaluation experts who are related to the bidders from the bid evaluation committee according to the bidding situation, and those who have entered shall be replaced, and the bid evaluation experts also have the obligation to voluntarily withdraw, otherwise their evaluation opinions will be invalid.
To sum up, in the field of bidding, we can see that although the relevant laws and regulations have made certain restrictions on the bidding subjects, they have not completely banned companies with related parties from fair competition in bidding.
We should treat the bidding of all kinds of affiliated companies with caution in strict accordance with relevant laws and regulations, and we should not arbitrarily deprive some potential bidders of their bidding rights, nor should we arbitrarily think that there must be collusion in the bidding of affiliated companies and refuse their bidding.
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