Attachment: Letter on Proposal 009 1 (CaishuiNo. 0 19) The Third Session of the 13th Chinese People's Political Consultative Conference.
Your suggestion on promoting the lowest bid winning and multi-subcontracting governance has been received. After consultation with the Ministry of Finance and the Ministry of Housing and Urban-Rural Development, we hereby reply as follows.
Focusing on the management of winning the lowest bid and subcontracting for many times, the proposal puts forward some suggestions, such as rationally treating the lowest bid, strengthening cost accounting, strengthening the handling of low bid evaluation, breaking the hidden rules of the industry and strengthening the construction of credit system, which is very targeted and has important reference value for the country to reform and improve the bidding system. Let's make a brief report on our understanding of related issues, the progress of related work and our next consideration.
I. Understanding of "the lowest evaluated bid price method" and the lowest bid winning problem
The "lowest evaluated bid price method" stipulated in Article 4 1 of China's Bidding Law is an important bid evaluation method and one of the common practices in determining the winning bidder internationally. The Bidding Law and its implementing regulations clearly stipulate the scope of application of the evaluated lowest bid price method.
1. This bid evaluation method is generally applicable to a project subject to tender with general technical and performance standards or with which the tenderer has no special requirements;
Second, the bidder must meet the substantive requirements of the tender documents;
Third, the bid price shall not be lower than the cost.
Therefore, the "evaluated lowest bid price method" is not equal to the price theory, and it is not equal to accepting and conniving at winning the bid below the cost.
In practice, the "evaluated lowest bid price method" is often abused and misused, leading to the problem of winning the bid at the lowest price, mainly for four reasons:
First, the tenderer and the bid evaluation committee did not strictly implement the relevant provisions of the bid evaluation methods. The "comprehensive evaluation method" needs to comprehensively evaluate the indicators of bidders, which is subjective and has great discretion. In order to avoid risks such as objections, complaints and audits, some bidders adopt the "lowest evaluated bid price method" for all kinds of procurement projects, simply regard the price as the decisive criterion for bid evaluation, ignoring the condition of "meeting the substantive requirements of bidding documents", neither calculating whether the bid price is lower than the cost, nor asking bidders to clarify, and failing to reject the bid below the cost in time.
Second, the benefits of winning the bid at a low price far outweigh the risks. After winning the bid at a low price, some bidders reduced their costs through fraud and Jerry-building, some asked the tenderee to change the contract and increase investment for various reasons such as design scheme change, and some even directly resold and illegally subcontracted the project to earn illegal income.
Third, the responsibility of the tenderer has not been effectively implemented. Post-bid performance management is not in place, and an effective contract performance and evaluation system has not been established. If the tenderee can strictly control the quality in the project implementation and inspection and acceptance, the bidder will face strict accountability when there are quality problems in the project and products, and will not dare and will not seek to win the bid at a low price at the expense of the quality of the project or products.
Fourth, administrative supervision and management are not in place. Due to the lack of supervision power and responsibility of the administrative supervision department, the lack of timely and effective supervision of project quality and product quality, and the lack of timely and effective restriction and strong punishment for the illegal and untrustworthy behavior of the winning bidder are also one of the reasons for winning the bid at the lowest price.
Second, the progress of comprehensive measures to control the lowest bid winning problem
The problem of winning the bid at the lowest price is a complex system problem, which needs comprehensive policy and multi-party cooperation to solve. Recently, many departments in the State Council introduced relevant reform measures to solve the problem of winning the bid at the lowest price.
(1) Accelerate the revision of the Bidding Law.
According to the deployment requirements of the CPC Central Committee and the State Council on reforming and improving the bidding system, our Committee is currently working with relevant departments in the State Council to speed up the revision of the Bidding Law. The revised draft (hereinafter referred to as the revised draft) was submitted to the State Council in July this year. This revision takes the issue of managing the lowest bid as one of the key concerns, and puts forward an institutional solution in the revised draft. ?
First, guide the tenderer to correctly and reasonably determine the bid evaluation method. On the one hand, the revised draft strengthens the tenderer's main responsibility for the project subject to tender, and stipulates that the tenderer should reasonably determine the bid evaluation method according to the actual needs and technical characteristics of the project subject to tender, so as to avoid applying the evaluated lowest bid price method without distinguishing the types of projects. On the other hand, the revised draft establishes value for money as the principle of bidding activities and introduces the concept of life cycle cost. For projects that must be subject to tender according to law, the tenderee is encouraged to reasonably consider the comprehensive costs of construction, use, maintenance, demolition and renewal of the project subject to tender, as well as the consumption level of energy resources and environmental impact, so as to avoid paying too much attention to the factors of bidding quotation.
The second is to standardize abnormal low-price bidding. Because it is often difficult to judge and identify whether the bid price is lower than the cost, it is difficult to operate in practice that the provisions in the Bidding Law that bidders should not bid at a price lower than the cost. 20 17 The newly revised Law on Anti-Unfair Competition also deleted the provision in Article 11 of the original law that "an operator shall not sell goods at a price lower than the cost for the purpose of crowding out competitors". The revised draft draws lessons from the international common public procurement rules and stipulates the procedures for handling abnormally low bids. The bid evaluation committee shall require the bidder to make a written clarification or explanation on the abnormally low bid that may affect the performance of the contract within a reasonable period of time, and provide the necessary supporting materials; If the bidder can't explain the rationality of his quotation, the bid evaluation committee may reject his bid, or the tenderer may review and confirm the bidder's performance ability according to the standards and methods specified in the tender documents. By introducing the procedure of winning the bid with abnormally low price, the tenderer and the bid evaluation committee are guided to effectively control the contract performance risk.
The third is to improve the quality of bid evaluation. The revised draft optimizes the composition mechanism of the bid evaluation committee, emphasizing that the professional composition of the members of the bid evaluation committee is determined by the tenderee according to the needs of the professional division of bid evaluation work of the project subject to tender; The representative entrusted by the tenderer shall be familiar with the requirements of the project subject to tender, and may be a professional of the unit or an external expert; If it is difficult to ensure the number of experts or the quality of bid evaluation by random selection, the bid evaluation experts can be directly determined by the tenderer. Strengthen the responsibility of the bid evaluation committee for bid evaluation quality, and require the bid evaluation report to explain the characteristics, advantages, risks and other bid evaluation conditions and recommendation reasons of each successful candidate; At the same time, strengthen the supervision of the tenderer to the bid evaluation committee. If the tenderer thinks that the bid evaluation activities violate the provisions of laws and administrative regulations, do not conform to the bid evaluation standards and methods determined in the tender documents, have errors in words or calculations, and the members of the bid evaluation committee have different scores on objective evaluation factors, or the scores are abnormally high or low, they have the right to submit written opinions to the bid evaluation committee and its members. Through these regulations, the behavior of bid evaluation experts will be standardized and the quality of bid evaluation will be improved.
The fourth is to strengthen post-bid performance management. On July 20 19, our Commission issued the Guidelines on the Standards for the Openness of Grass-roots Government Affairs in the Field of Public * * * Resources Trading (Development and Reform Office Regulation [2065438+09] No.752), which standardized and regulated the disclosure content, basis, time limit, subject and channels of contract performance and change information. The revised draft further clearly requires that the tenderee should disclose the performance information including major changes in the project, major changes in the contract, suspension and dissolution of the contract, performance acceptance, price settlement, etc. Comply with the relevant provisions of the state and accept the supervision of all bidders and the society. In order to solve the problem that some of the lowest bid winners seek to increase the contract amount by deliberately delaying the construction period during the project implementation, the revised draft adds efficient measures to deal with the failure of the bid winner. If the winning bidder fails to perform his obligations in accordance with the contract or has other circumstances during the implementation of the winning project, the tenderer may terminate the contract according to law. In view of the problem of "two skins" between bidding and contract performance in practice, the revised draft clearly stipulates the responsibility of the tenderer for performance acceptance, requires the tenderer to organize timely acceptance of the performance of the winning bidder in accordance with relevant state regulations and contract stipulations, and also stipulates that relevant administrative supervision departments should establish a performance evaluation mechanism. By strengthening performance acceptance and performance evaluation, the tenderer and the winning bidder are prevented from failing to perform their obligations according to the contract.
The fifth is to strengthen the punishment for illegal bidding. In 20 18, our Committee and 23 relevant departments in the State Council issued a memorandum on joint punishment of serious untrustworthy subjects in the field of public resources trading (No.457 of the Development and Reform Law [2018]), which stipulated that joint punishment should be given to market subjects who suffered serious dishonesty because they won the bid at a malicious low price in bidding activities, so as to realize "punishment in one place and restraint everywhere". The revised draft aims at the problem that the current tendering and bidding law does not punish illegal acts sufficiently. On the one hand, improve the relevant legal liability regulations and substantially increase the amount of administrative punishment for illegal subcontracting and other illegal acts; On the other hand, strengthen the construction of the credit system of the bidding market, establish the credit records of the parties, punish the illegal subjects according to law, and clearly regard the serious dishonesty of the market subjects as a situation in which bidding is prohibited.
(2) Deepening the reform of the government procurement system.
The Ministry of Finance thoroughly implemented the requirements of government procurement law and other relevant laws and regulations, constantly improved the design of government procurement system, and solved the problems of winning the bid at a low price and subcontracting many times in practice.
The first is to standardize the management of procurement demand and performance acceptance. The Guiding Opinions on Further Strengthening the Management of Government Procurement Demand and Acceptance of Performance (Caiku [2016] No.205) was issued to strengthen the main responsibility of the purchaser, requiring the purchaser to strengthen demand demonstration and social participation, scientifically and reasonably determine the procurement demand, strictly regulate the acceptance of performance, and confirm the performance of various technologies, services and safety standards in accordance with the provisions of the procurement contract. ?
The second is to improve the rules of government procurement transactions. In view of the complex technology and special nature of some procurement projects, it is impossible to determine the detailed specifications or specific requirements in advance, and establish a competitive negotiation procurement method according to law, and establish a two-stage procurement model of "first clarifying the demand and then comprehensively scoring" to avoid vicious competition that may be caused by the lowest price transaction. Revise and improve the Measures for the Administration of Bidding for Government Procurement of Goods and Services (Order No.87 of the Ministry of Finance), stipulate that except for goods and services with uniform technical and service standards, the comprehensive scoring method should be adopted, and authorize the bid evaluation committee to reject low-priced quotations that may affect product quality or fail to perform in good faith. Identify procurement projects with complex technology and strong professionalism. With the consent of the competent budget unit, the purchaser can choose the bid evaluation experts in the corresponding professional fields.
The third is to standardize the inquiry and use of credit records. The Notice of the Ministry of Finance on Issues Concerning Inquiring and Using Information Records in Government Procurement Activities (Treasury [20 16] 125) was issued, requiring purchasers and procurement agencies to inquire about the credit information of relevant subjects in government procurement activities, and restricting relevant untrustworthy subjects from participating in government procurement activities according to law. Open a column in the government procurement network to record the serious illegal and untrustworthy behaviors of government procurement, and share information for websites such as "Credit China" and the national credit information sharing platform. ?
The fourth is to prohibit subcontracting and standardize subcontracting behavior. According to the Regulations for the Implementation of the Government Procurement Law, government procurement contracts shall not be subcontracted. With regard to subcontracting, the Notice on Promoting Fair Competition in Government Procurement and Optimizing the Business Environment (Caiku [2065438+09] No.38) was issued, clarifying that if the purchaser allows subcontracting, the specific content, amount and proportion of subcontracting should be specified in the procurement documents. ?
(3) Promote the reform of project cost. ?
The Ministry of Housing and Urban-Rural Development issued the Work Plan for Project Cost Reform (Jian Bu Ban [2020] No.38), vigorously promoting the project cost reform, giving play to the decisive role of the market in resource allocation and reducing the government's intervention in price formation. Improve the project cost calculation rules and the market price information release mechanism. The government will build a market price information publishing platform to encourage mass organizations, enterprises and institutions to publish market price information through this platform for market participants to choose. Strengthen the accumulation of completed project cost data, comprehensively use the project cost index and market price information, implement the responsibility of cost control of the construction unit, and strengthen the management of construction contract performance. Change from quota pricing to list pricing, market inquiry and competitive pricing to ensure the effective play of project investment benefits. The suggestions put forward in the proposal, such as changing the traditional quota pricing model, gradually integrating with market prices, and using information technology and big data means, have all been reflected in the reform plan. ?
(4) Strengthen the construction of credit system in the construction market. ?
The Ministry of Housing and Urban-Rural Development attaches great importance to the construction of laws and regulations related to the integrity system of the construction market. In 2005, the Opinions on Accelerating the Construction of Credit System in Construction Market (Jianshi [2005] 138) was issued to guide the construction of credit system in construction market in all provinces and cities in China. In 2007, the Measures for the Management of Honesty Behavior Information in the Construction Market (Jianshi [2007] No.9) was issued, and in 20120 13, the National Standards for Identifying Bad Behavior Records of Registered Practitioners in the Construction Market (Trial) was issued (Jianshi [20/kloc-0) In 20 17, the Interim Measures for Credit Management of Construction Market (J.S.J. [2017] No.241) was issued, which strengthened the identification, collection, exchange, disclosure, evaluation, use, supervision and management of credit information of all parties in the construction market, and established the blacklist system of construction market subjects. In 20 19, the Guiding Opinions on Further Strengthening the Supervision of Bidding for Housing Construction and Municipal Infrastructure Projects (Urban Construction Regulation [2019]10/No.) was issued, which clearly proposed to strengthen the supervision of contract performance, strengthen the "two-field" linkage between the construction market and the construction site, and incorporate the performance into the credit. ?
Third, what's the next step?
First, our Committee will actively cooperate with the Ministry of Justice to do a good job in the legislative review of the revision of the tendering and bidding law, further revise and improve the revised draft as soon as possible, and strive to submit it to the the State Council executive meeting for deliberation and approval before submitting it to the National People's Congress. At the same time, the preliminary investigation of the revision of the Regulations on the Implementation of the Bidding Law was initiated. In addition, we will continue to publish typical cases of dishonesty in the bidding field through the website of "Credit China", and increase the punishment for dishonesty according to laws and regulations. ?
Second, the Ministry of Finance will promote relevant competent departments, trade associations and centralized procurement institutions to study and formulate government procurement demand standards, contract templates and detailed rules for performance acceptance, so as to improve the standardization level of government procurement demand formulation and performance acceptance. Improve the rules of government procurement transactions, refine the rules of procurement bid evaluation, and guide purchasers to reasonably choose procurement methods and bid evaluation methods according to the characteristics of procurement projects. Continue to promote supplier integrity and performance evaluation, further strengthen credit joint punishment, and limit the participation of untrustworthy subjects in government procurement activities according to law. ?
Third, the Ministry of Housing and Urban-Rural Development will further improve the national construction market supervision service platform, actively study and carry out credit evaluation of the construction market, collect and publish credit information of market entities in a timely manner, increase the disclosure of bad behavior information, punish market entities with serious dishonesty, and promote the standardized application of credit information of the construction market in bidding activities. ?
In addition, in the field of canceling unit qualification and personnel qualification and delegating authority, we believe that when bidding is allowed, it is the independent right of the tenderer to reasonably set the technical conditions that the bidder should have according to the needs of the bidding project by adopting other existing legal qualifications to be included and replaced, and setting reasonable technical access thresholds. As long as potential bidders are not unreasonably excluded or restricted, administrative supervision departments should not interfere. We discussed the proposal of implementing a high performance bond for the low-priced winning bidder during the revision of the Bidding Law. At present, there are still different views in all aspects. The focus of the dispute is mainly whether this measure is effective in controlling the lowest bid, whether it will be abused in practice and whether it will unreasonably increase the burden on bidders. Next, we will fully consider relevant suggestions with relevant departments and further study and demonstrate.
I am grateful to the All-China Federation of Industry and Commerce for its concern and support for development and reform.
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