Answer: The bidder shall re-determine the winning bidder from other bidders according to the bid-winning conditions or re-invite bids according to the bidding law.
2. Who is the recipient of the bid-winning notice and how effective is it?
Answer: After the winning bidder is determined, the tenderee will issue a letter of acceptance to the winning bidder and notify all bidders who have not won the bid.
The bid-winning notice has legal effect on the tenderer and the winning bidder. After the bid-winning notice is issued, if the tenderer changes the bid-winning result or the winning bidder abandons the bid-winning project, it shall bear legal responsibility according to law.
3. When should the tenderer announce the winning candidate for the project that must be subject to tender according to law?
Answer: The tenderer shall publicize the successful candidate within 3 days from the date of receiving the bid evaluation report, and the publicity period shall not be less than 3 days.
4, bidders or other interested managers have objections to the evaluation results, how to deal with?
Answer: If a bidder or other interested party disagrees with the bid evaluation results of a project that must be subject to tender according to law, it shall raise it within the publicity period of the successful candidate.
Among them, other stakeholders refer to legal persons, other organizations and natural persons other than bidders who have direct or indirect interests with bidding projects or bidding activities.
There are mainly: first, potential bidders who are interested in pre-qualification or bidding. In the pre-qualification announcement or tender announcement, potential bidders are excluded, so that they cannot participate in bidding, and their legitimate rights and interests are infringed, and they are interested parties in bidding activities.
Second, in the market economy, as long as it meets the requirements of the bidding documents, in order to control the bidding risk, bidders can make a conditional and effective agreement when preparing the bidding documents to bind their bids with specific subcontractors and suppliers that meet the requirements of the bidding project. These subcontractors, suppliers and bidders have the same interests and are interested in bidding activities.
Third, the project leader of the bidder is generally the organizer of the bidding work, and his personal contribution is relatively large. Whether he won the bid or not has a great relationship with his personal career development. He is a stakeholder in the bidding activities.
The tenderer shall make a reply within 3 days from the date of receiving the objection; Before giving a reply, the tendering and bidding activities shall be suspended.
5. When should the tenderer and the winning bidder sign a written contract?
Answer: The tenderer and the winning bidder shall conclude a written contract in accordance with the tender documents and the bidding documents of the winning bidder within 30 days from the date of issuance of the bid-winning notice. The main terms of the contract, such as the subject matter, price, quality and time limit for performance, shall be consistent with the contents of the tender documents and the bid documents of the winning bidder. The tenderer and the winning bidder shall not conclude other agreements that deviate from the substantive contents of the contract.
6. After determining the winning bidder for the project that must be subject to tender according to law, how long should the tenderer submit a written report on the bidding situation to the relevant administrative supervision department?
Answer: The tenderee shall submit a written report on the bidding situation to the relevant administrative supervision departments within 15 days.
7. How does the tenderer handle the bid bond paid by the winning bidder and other bidders?
Answer: The tenderee shall refund the bid bond and bank deposit interest for the same period to the winning bidder and unsuccessful bidder within 5 days at the latest after signing the written contract.
8. What is the maximum amount of performance bond required in the tender documents?
A: The performance bond shall not exceed 65,438+00% of the winning contract amount.
9. Can the winning bidder subcontract or subcontract the winning project?
Answer: Subcontracting refers to the act of contracting a part of the contracted construction project to a contractor with corresponding qualifications according to law. If the general contractor does not terminate the contract relationship, he and the third party shall be jointly and severally liable to the employer for the work completed by the third party.
Subcontracting: Subcontracting refers to the behavior that the contractor transfers the contracted construction tasks to a third party after contracting the project, and the transferor withdraws from the site in a contractual relationship, and the transferee becomes the other party to the contract.
The winning bidder shall fulfill its obligations in accordance with the contract and complete the winning project. The winning bidder shall not transfer the winning project to others, nor shall it dismember the winning project and transfer it to others separately.
The winning bidder may, according to the contract or with the consent of the tenderer, subcontract part of the non-major and non-critical work of the winning project to others for completion. The person who accepts subcontracting shall have corresponding qualifications and shall not subcontract again.
The winning bidder shall be responsible to the tenderer for the subcontracted project, and the subcontractor shall be jointly and severally liable for the subcontracted project.
10. What should bidders or other interested parties do if they think that the bidding activities do not conform to the provisions of laws and administrative regulations?
Answer: You can complain to the relevant administrative supervision departments within 10 days from the day you know or should know. Complaints should have clear requirements and necessary supporting materials. If there is any objection to the pre-qualification documents, bidding documents, bid opening and bid evaluation results, it shall first raise an objection to the tenderer, and the time limit for replying to the objection shall not be counted in the time limit specified in the preceding paragraph.
1 1. Which administrative supervision departments can bidders or other interested parties complain to?
A: The administrative supervision departments of development and reform, industry and informatization, housing and urban-rural construction, water conservancy, transportation, railways, commerce, civil aviation and other tendering and bidding activities accept complaints and make a decision according to the division of responsibilities stipulated by the General Office of the State Council (Guo Ban Fa [2000] No.34) and local people's governments at all levels.
Complaints about the bidding activities of major national construction projects (including industrial projects) shall be accepted by the National Development and Reform Commission and decided according to law. Complaints received by the relevant industry administrative supervision departments about the bidding activities of major national construction projects shall be notified to the National Development and Reform Commission, which will no longer accept them.
12. When making a complaint, the complainant shall submit a complaint. What should be included in the complaint?
A: The name, address and effective contact information of the complainant; The name, address and effective contact information of the respondent; The basic facts of the complaint; Related requests and claims; Effective clues and relevant supporting materials.
If the complainant is a legal person, the complaint must be signed and sealed by its legal representative or authorized representative; If other organizations or natural persons complain, the complaint must be signed by the principal responsible person or the complainant himself, and a copy of valid identity certificate must be attached.
13. What kind of complaints will not be accepted?
A: The complainant is not a participant in the complained bidding activity or has no interest in the complained project; Complaints are not specific, no effective clues are provided, and it is difficult to verify; The complaint is not accompanied by the complainant's real name, signature and effective contact information; Complaining in the name of a legal person, and the complaint is not signed by the legal representative and stamped with the official seal; Exceeding the limitation of complaint; A decision has been made and the complainant has not presented new evidence; Complaints should be filed first. If there is no objection, it has entered the administrative reconsideration or administrative litigation procedure.
14. What is the time limit for the administrative supervision department that accepts the complaint to handle the complaint?
A: The administrative supervision department shall decide whether to accept the complaint within 3 working days from the date of receiving the complaint, make a decision on handling the complaint within 30 working days from the date of accepting the complaint, and notify the complainant, the respondent and other parties related to the complaint in writing. Need inspection, testing, identification, expert review, the time required is not counted.
15. What should I do if the party refuses to accept the complaint handling decision of the administrative supervision department or the administrative supervision department fails to handle it within the time limit?
A: You can apply for administrative reconsideration or bring an administrative lawsuit to the people's court according to law.
16. What kind of responsibility will the complainant bear for deliberately fabricating facts, forging supporting materials or obtaining supporting materials by illegal means to make a complaint?
A: If losses are caused to others, they shall be liable for compensation according to law.
17. Do I need to pay for the complaint?
A: The administrative supervision department shall not charge any fees to the complainant and the respondent in the process of handling complaints.
18. Can the tenderee's subsidiary participate in the bidding activities organized by it?
After the promulgation of the Regulations on the Implementation of the Bidding Law, it is a controversial issue whether subsidiaries can participate in the bidding activities organized by tenderers.
Before the promulgation of the Regulations on the Implementation of the Bidding Law, the law did not explicitly prohibit it. 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. Whether there is an interest relationship between subsidiaries and parent companies, and whether it may affect the fairness of bidding, is an obvious question, and the answer is yes (the relationship between subsidiaries and brother companies is similar). But is it true that subsidiaries can't participate in the bidding activities organized by the parent company because of the above provisions? The answer is no.
In practice, a large number of enterprises, especially the subsidiaries of state-owned enterprises, are participating in the bidding activities carried out by their parent companies normally and have not been stopped by the regulatory authorities. The reason is not that the regulatory authorities do not understand the specific situation, but that the legislative authorities do not understand the actual situation, and the relevant regulations issued are difficult to strictly enforce because they are divorced from reality and have great resistance. At present, the subsidiaries of many domestic enterprises, especially the subsidiaries of state-owned enterprises, rely on the parent company (or units within the system) to survive, and bidding is the main channel for them to obtain business. Prohibiting them from participating in the bidding activities organized by the parent company is equivalent to announcing their closure, which not only affects the normal operation of a large number of enterprises, but also affects the survival of employees and social stability. There is nothing wrong with the above provisions of the Regulations on the Implementation of the Law on Bidding and Tendering, but it is too advanced due to the lack of in-depth research on the actual situation, which leads to the impossibility of implementation, which the legislative department needs to take a warning.
19. Can the bidder be required to be an enterprise legal person?
Article 32 of the Regulations for the Implementation of the Bidding Law stipulates that if the ownership or organizational form of potential bidders is illegally restricted for a project that must be subject to bidding according to law, it belongs to the situation of restricting and excluding potential bidders with unreasonable conditions. At present, in our country, legal persons and other organizations are the main forms of organization that are allowed to be the subject of bidding. People who have participated in the preparation of bidding documents will notice that many bidding documents have such a requirement: the bidder must be an enterprise legal person who can bear legal responsibility independently. Then, according to the Regulations on the Implementation of the Bidding Law, are the above requirements in the bidding documents appropriate?
For this problem, the author understands it like this:
(1) The Regulations for the Implementation of the Bidding Law does not completely prohibit the organizational forms of bidders, but only prohibit the illegal organizational forms of bidders, and only for projects that must be subject to bidding according to law;
(2) Illegal restriction means that the law does not stipulate that a work must be undertaken by a unit with a specific organizational form, but the tenderer requires that it must be completed by a unit with a specific organizational form. For example, some equipment can be produced by corporate enterprises, and non-corporate enterprises such as partnerships and branches can also be produced. The tenderer cannot require the bidder to be a legal person enterprise;
(3) If the law stipulates that relevant work must be carried out by a unit with a specific organizational form, the tenderer may specify the specific organizational form requirements of the bidder. For example, according to the Regulations on Qualification Management of Construction Enterprises, construction enterprises must have legal person qualification. When inviting tenders for construction projects, the tenderee may of course require the bidder to be an enterprise legal person.
20, how to set the qualifications of consortium bidders?
Although there is only one consortium bidder, the law has made special requirements for the qualifications of consortium bidders because it involves multiple units (members of each consortium). The Bidding Law stipulates that all parties to the consortium should have the corresponding ability to undertake the bidding project; 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. A consortium composed of the same professional unit shall determine the qualification level according to the unit with lower qualification level. Many people think that the above provisions mean that all bidders of the consortium should meet the qualifications of bidders specified in the tender documents. The author has a different understanding of this: whether the members of the consortium must meet the qualifications of bidders stipulated in the bidding documents should be determined according to the specific circumstances, otherwise it will be unfair and inconsistent with the original intention of legislation.
For example, in order to ensure the performance ability of bidders, many bidders stipulate in the bidding documents that the registered capital of bidders should reach a certain amount. According to the provisions of the Bidding Law, all members of the consortium are jointly and severally liable to the tenderee. If the registered capital of all consortium members is required to reach the above amount, it theoretically means that the financial strength of consortium bidders is more than twice that of single-subject bidders, but in fact, as long as the registered capital of one consortium member unit meets the requirements, the conditions of consortium bidders are better than those of single-subject bidders.
Therefore, it is unfair to require all members of the consortium to have qualifications similar to registered capital. The Law on Tendering and Bidding only stipulates that a consortium composed of units of the same major shall determine the qualification level according to the units with lower qualification level. Other qualifications of bidders who fail to emphasize the consortium should also be determined according to the minimum standards. In other words, the current law only emphasizes that all members of the consortium must meet the prescribed conditions in terms of qualification level. As for other qualification requirements (except statutory qualifications), under the premise of ensuring fairness, the tenderer may stipulate that as long as one member of the consortium meets the requirements, it will meet the "corresponding qualification conditions" stipulated in the tender documents.
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