I. Existing problems
1. The existing legal system has room for flexibility.
At present, the laws and regulations on which the bidding for construction projects is based are mainly the Bidding Law, the Construction Law, relevant ministerial orders and local regulations (hereinafter referred to as "bidding laws and regulations"). Some clauses in the Bidding Law leave flexibility for the owner or agency, such as Article 12 which gives the project owner the power to handle the bidding, Article 18, paragraph 2, Article 20 which stipulates that bidders shall not be discriminated against, and Article 40 which stipulates that the bid evaluation committee shall review and compare the bidding documents. To master these terms, in a sense, the moral constraint on the parties is higher than the legal constraint.
2. The characteristic of building products is that it is convenient to act as an "operation" carrier.
Theoretically speaking, construction projects are futures commodities, and the expected characteristics of commodity quality cause the demanders to worry about the uncertainty of commodity quality, so the demanders (bidders) pay more attention to the credit, performance and reputation of commodity producers (bidders). In reality, this characteristic of construction goods provides a good excuse for the agent to "rent-seeking" under the condition that the project legal person acts as agent at different levels. Although the technical content of general building products (mainly design changes) is not high, there is a "black profit" space because there are many items in a contract list, the project implementation and settlement are flexible, and the project cost control and accounting treatment are more flexible, which provides a material basis for the "black box operation" of project bidding.
3. It is difficult for the administrative department to supervise the bidding work.
In terms of laws and regulations, the administrative department currently mainly relies on the Bidding Law, the Construction Law, relevant ministerial decrees and local regulations to supervise the bidding work, but it lacks detailed implementation rules in actual work. In particular, it is difficult to grasp the discriminatory provisions stipulated by law, which leads to the excessive, offside and absence of administrative discretion, and also provides the tenderer (bidding agent) with the opportunity of "behind-the-scenes operation".
Second, the countermeasures
1. Revise loopholes and conflicts in laws and regulations. Our country is in the transition period of legal system construction, and some laws and regulations need a process of formulation, implementation, improvement and revision. However, from the perspective of improving the quality of bidding supervision, we should speed up the pace of legal construction and solve some problems as soon as possible to ensure the normal development of bidding activities and promote the continuous improvement of bidding quality.
2. Strengthen the publicity and education of laws and regulations on construction project bidding, and strengthen the legal awareness of relevant leaders and staff in construction project bidding.
3. Establish a regular publicity system for inspection and treatment results. The standardized management of the construction market must always adhere to the principles of abiding by laws, strictly enforcing laws and prosecuting offenders, intensify law enforcement, adhere to inspection and supervision, severely crack down on violations of laws and disciplines, strengthen punishment measures, and standardize trading behavior according to law. The government supervision department of bidding should exchange information with the departments of planning, land, planning, industry and commerce, discipline inspection, quality supervision and safety supervision, work together, perform their duties, and maintain the operating mechanism of fair competition in the construction market.
4. Do a good job in pre-qualification and post-examination of construction enterprises. At present, the qualification of affiliated enterprises is serious, so we should start with the qualification management and improve the qualification management of construction enterprises. We can consider amending the relevant regulations on qualification management and annual qualification examination, and increase the punishment for enterprises that are allowed to be affiliated. Only when construction enterprises feel the pressure can we really prevent and stop the enterprise qualification-linked behavior.
5. Strengthen the process monitoring of project construction bidding, and give play to the supervisory role of all sectors of society. In the supervision of all walks of life, the influence of news media is even greater. We should actively encourage the news media to pay more attention to the construction industry, and also actively encourage the supervisory role of the masses. For individuals and units that provide letters and visits, the relevant departments should do a good job of confidentiality measures and give appropriate material rewards.
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