China's Government Procurement Law stipulates that two or more natural persons, legal persons or other organizations can form a consortium to participate in government procurement as suppliers. The statement of consortium in the Bidding Law is that two or more legal persons or other organizations can form a consortium and bid together as bidders.
The two laws describe consortia differently. The scope of consortium stipulated in the Government Procurement Law includes natural persons, legal persons and other organizations, while the scope of consortium stipulated in the Bidding Law includes legal persons or other organizations, excluding natural persons. This is mainly because the definition of supplier in the Government Procurement Law is "a legal person, other organization or natural person who provides goods, projects or services to the purchaser." The Bidding Law defines a bidder as "a legal person or other organization that participates in bidding competition in response to bidding." Therefore, the Government Procurement Law limits the scope of consortium to natural persons, legal persons and other organizations, while the Bidding Law limits the scope of consortium to legal persons and other organizations, so frontline personnel should pay attention to this in practice.
All parties to the consortium shall meet the prescribed conditions.
The Government Procurement Law stipulates that all suppliers participating in the consortium should meet certain conditions, including six aspects, when conducting government procurement in the form of consortium.
(1) has the ability to bear civil liability independently;
(2) Having a good business reputation and a sound financial accounting system;
(3) Having the necessary equipment and professional technical ability to perform the contract;
(4) Having a good record of paying taxes and social security funds according to law;
(five) to participate in government procurement activities within three years before the business activities without major illegal records;
(6) Other conditions stipulated by laws and administrative regulations.
China's "Bidding Law" stipulates that all parties in the consortium should have the corresponding ability to undertake bidding projects; If the relevant provisions of the state or the tender documents stipulate the qualifications of bidders, all parties to the consortium shall have the corresponding qualifications. According to the above-mentioned laws and regulations, all parties to the consortium must have the corresponding ability or qualification to undertake the bidding project and cannot be a part of it.
In practice, some people are not sure about this clause, and we further elaborate as follows: "Bidding Law" stipulates that all parties in the consortium "should" have the corresponding ability to undertake bidding projects; If the relevant provisions of the state or the tender documents stipulate the qualifications of bidders, all parties to the consortium shall have the corresponding qualifications. As can be seen from the expression of the above laws, all parties in the consortium should have corresponding abilities or qualifications. Here, the parties to the consortium refer to all members participating in the consortium; Everyone has the corresponding ability or qualification means that all members participating in the consortium have the corresponding ability or qualification, and either party meets the corresponding ability or qualification. One party of the consortium cannot have partial ability or qualification, and other members of the consortium shall make up for the lack of conditions. For example, Company A and Company B form a consortium to participate in bidding. Company A has some qualifications stipulated in the tender documents, while Company B has other qualifications stipulated in the tender documents. After Company A and Company B form a consortium, the two companies have complementary advantages and seem to meet the qualification requirements of the bidding documents. But in fact, neither Company A nor Company B meets the qualification requirements of the bidding documents. This form of consortium bidding obviously does not conform to the provisions of China's bidding law.
The parties to the consortium shall * * * sign a purchase contract with the buyer.
China's "Government Procurement Law" stipulates that if government procurement is conducted in the form of a consortium, all parties in the consortium shall * * * sign a procurement contract with the purchaser and bear joint and several liabilities for the matters agreed in the procurement contract.
China's "Bidding Law" stipulates that if a consortium wins the bid, all parties to the consortium shall * * * sign a contract with the tenderer and bear joint and several liabilities to the tenderer for the winning project.
According to the provisions of the above-mentioned laws, we will participate in the bidding in the form of a consortium. If we win the bid, all parties in the consortium shall sign a contract with the purchaser or the tenderee. For example, Company A, Company B and Company C form a consortium to participate in government procurement activities, with Company A taking the lead. If the consortium wins the bid, then Company A, Company B and Company C will sign a purchase contract with Company A, but not in the name of Company A. All parties of the consortium shall be jointly and severally liable to the purchaser for the matters stipulated in the purchase contract. In practice, some people think that it is enough for the representative or leader of the consortium to sign a contract with the purchaser. This view is wrong, which obviously violates the provisions of the Government Procurement Law and the Bidding Law, and is not conducive to taking responsibility.
How to confirm the qualification grade of the consortium?
If members with similar qualifications have different levels, how to confirm the level of the consortium? China's "Regulations on the Implementation of the Government Procurement Law" stipulates that if the suppliers with similar qualifications in the consortium undertake the same work according to the division of labor of the consortium, the qualification level shall be determined according to the suppliers with lower qualification level. China's "Bidding Law" stipulates that a consortium composed of units of the same major shall determine the qualification level according to the unit with lower qualification level.
In government procurement activities, in the form of a consortium, according to the provisions of the Government Procurement Law, a joint agreement shall be submitted to the purchaser to clarify the work and obligations undertaken by all parties in the consortium. In practice, front-line personnel should confirm the qualification grade of the consortium according to the Regulations on the Implementation of the Government Procurement Law and the principle of "low is not high" and the consortium agreement.
05 consortium bidding is prohibited.
China's "Regulations on the Implementation of the Government Procurement Law" stipulates that all parties to a consortium may not participate in government procurement activities under the same contract alone or with other suppliers.
China's "Regulations on the Implementation of the Bidding Law" stipulates that 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.
Both the Regulations for the Implementation of the Government Procurement Law and the Regulations for the Implementation of the Bidding Law restrict the uniqueness and exclusiveness of consortium bidding, that is, as long as you participate in consortium bidding and belong to consortium members, you will lose the qualification to participate in bidding again, and you may not bid alone in your own name or form a new consortium to participate in bidding again. In practice, in order to improve the winning rate, some bidders, on the one hand, form a consortium to bid, on the other hand, bid separately in their own name or form a new consortium to participate in the bidding. Obviously, this kind of behavior does not comply with the law, and the relevant bidding behavior is invalid.
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