First, does the Bidding Law only restrict the projects that must be tendered according to law?
Friends who do shopping in the company usually think that shopping is the company's own behavior. How to choose and who to choose is their own company's business. Even if they choose to bid, they can make their own rules. But! This idea is wrong. For the company itself, procurement is indeed an independent behavior, and the company can find suppliers and choose procurement methods according to its own needs. However, if the supplier is selected through bidding, it is necessary to follow the bidding method.
Article 2 of the Tendering and Bidding Law stipulates that this Law shall be applicable to tendering and bidding activities within the territory of People's Republic of China (PRC).
Article 7 stipulates that bidding activities and their parties shall be subject to supervision according to law. The relevant administrative supervision departments shall supervise the bidding activities according to law, and investigate and deal with illegal acts in bidding activities according to law.
In other words, if a company chooses to conduct procurement activities in China by bidding, it will be bound by the Bidding Law and must abide by some of its provisions. Similarly, its bidding activities also need to be supervised according to law.
Why "some"? Because in the bidding law, the binding force of different bidding activities is different, which involves the distinction between voluntary bidding projects and compulsory bidding projects (also known as projects that must be tendered according to law).
Second, what are the projects that must be tendered according to law?
So, which projects are subject to tender according to law? Will this kind of project be involved in unit procurement?
According to the Law on Tendering and Bidding and the Provisions on Bidding for Engineering Projects, judging whether a project is a project that must be tendered according to law usually depends on the project type, project nature and project scale, and there are the following steps:
1. Whether the project belongs to a construction project, including the survey, design, construction and supervision of the project and the procurement of important equipment and materials related to the project construction.
Article 3 of the Bidding Law stipulates that the following construction projects, including engineering survey, design, construction, supervision and procurement of important equipment and materials related to engineering construction, must be subject to bidding within the territory of People's Republic of China (PRC).
If the project is a construction project, then go to the next question. If not, it is not a project that must be tendered according to law.
2. Whether the source of funds or the nature of the project meets one of the following three conditions:
(1) Large-scale infrastructure, public utilities and other projects related to social interests and public safety;
(two) projects that use state-owned funds to invest or finance in whole or in part refer to:
For projects with a budget of more than 2 million yuan, the funds account for more than 10% of the investment; Projects that use the funds of state-owned units and institutions, and the funds account for the controlling or leading position.
(3) Projects that use loans or aid funds from international organizations or foreign governments specifically refer to:
Projects that use loans and aid funds from international organizations such as the World Bank and the Asian Development Bank; Projects using loans and aid funds from foreign governments and their institutions.
If the project meets one of the above three conditions, then go to the next question. If not, it is not a project that must be tendered according to law.
3. If the above conditions are met, does the project scale meet the following requirements:
The estimated price of a single construction contract is more than 4 million yuan; The estimated price of a single contract for the procurement of important equipment, materials and other goods is more than 2 million yuan; The estimated price of a single contract for the purchase of services such as survey, design and supervision is above 1 10,000 yuan. Survey, design, construction, supervision and procurement of important equipment and materials related to engineering construction can be combined in the same project, and if the estimated total contract price reaches the above-mentioned specified standards, an invitation to tender must be conducted.
If the project scale meets one of the above four conditions, bidding must be conducted. Otherwise, it is not a project that must be tendered according to law.
In addition, the General Office of the State Council recently issued the Notice on Launching the Pilot Reform of the Examination and Approval System for Construction Projects. In the pilot areas, the construction unit can independently decide the contracting method of housing construction projects invested by the society. This means that even if some housing construction projects belong to large-scale infrastructure, as long as the source of funds is social investment, there is no need to choose suppliers through bidding.
Therefore, whether a project is subject to tender according to law depends mainly on the source of funds of the project, not the type of tenderer. Therefore, there may also be projects that must be tendered according to law in unit bidding. Many central enterprises and state-owned enterprises will also have many voluntary bidding projects because of audit or internal management needs.
3. What "pits" do voluntary bidding projects need to skip?
In the bidding law, the items that must be tendered according to law pay more attention to the openness of information and the sufficiency of competition, so there are stricter regulations. For projects that must be tendered according to law, the time from the issuance of tender documents to the deadline for bidding shall not be less than 20 days, while there is no mandatory provision for projects that are voluntarily tendered.
Then, what provisions should be paid special attention to for the projects subject to voluntary bidding, which can not only meet the legal compliance of procurement, but also reduce the time and energy costs caused by complicated procedures and realize the profit-seeking nature of unit procurement? Jerbo. Bian Xiao compiled the following frequently asked questions and answers:
1. Do tenderers and bidders have to be legal persons?
According to the Bidding Law, a tenderer should be a legal person or other organization that proposes a project subject to tender. Bidders should be legal persons or other organizations that respond to the bidding and participate in bidding competition. Scientific research projects subject to tender according to law may be submitted by individuals.
2. Is there a corresponding time limit for bidding? How many days must I be satisfied?
According to "Bidding Law" and its implementing regulations, the bidding documents of a project subject to voluntary bidding shall be sold for no less than 5 days. At the same time, if the clarification or modification of the bidding documents may affect the preparation of the documents by the bidder, it should be issued 15 days before the deadline for bidding. If it is insufficient, the bid opening time will be postponed. If potential bidders have objections to the bidding documents, they should raise them before the bidding deadline 10. Therefore, for a project subject to voluntary bidding, the shortest time from the issuance of bidding documents to the deadline for bidding can be 5 days in theory.
3. What is the maximum bid bond? Do I have to transfer money from basic account?
According to the Bidding Law and its implementing regulations, the bid bond shall not exceed 2% of the estimated price of the project subject to tender. For projects that must be subject to tender according to law, the bid bond submitted in the form of cash or cheque shall be transferred from basic account. Therefore, the amount of bid bond for a project subject to voluntary bidding should be below 2%, but there is no need to require bidders to transfer out of their basic deposit account.
4. In the tender documents, can bidders be required to quote no less than a certain limit?
According to the Bidding Law and its implementing regulations, a project cannot set a minimum bid price limit. However, the bid evaluation committee may reject the bid below the cost. If the maximum bid price limit is set, it should be clearly stipulated in the bidding documents.
5. Must the bidder's quotation be published when opening bids?
According to the Bidding Law and its implementing regulations, all bidders should be invited to participate in the bid opening, and the staff should unpack and read all bid documents received and confirmed to be well sealed before the bidding deadline, including the names of bidders, bid prices and other main contents of the bid documents.
6. Can I negotiate with the bidder after the bid opening?
According to the Bidding Law, before the winning bidder is determined, the tenderer shall not negotiate with the bidder on the bid price, bid plan and other substantive contents. At the same time, the tenderer and the winning bidder shall not conclude other agreements that deviate from the substantive contents of the contract. Therefore, the tenderer can only negotiate with the winning bidder after determining the winning bidder.
7. Do the bidding results need to be announced to the public?
According to the provisions of the Bidding Law, the tenderer can directly determine the winning bidder according to the evaluation results and issue a letter of acceptance without publicity and announcement.
8. What obligations does the tenderer need to perform to the bidder?
According to the Bidding Law and its implementing regulations, the tenderer and the winning bidder shall conclude a written contract in accordance with the bidding documents and the winning bidder's bidding documents within 30 days from the date of issuance of the bid-winning notice. In addition, the tenderee shall, within 5 days after signing the written contract at the latest, refund the bid bond and the interest on the bank deposit for the same period to the winning bidder and the unsuccessful bidder.
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