1) Forms of bid rigging and bid collusion
Collusion in bidding and collusive bidding refers to collusion between tenderers and bidders or between bidders to crowd out competitors or harm the interests of bidders in order to win the bid.
There are various forms of bidding and bidding, and the typical ones are:
One is that the bidder colludes with the tenderer.
If some bidders try to turn public bidding into invitation bidding, the default winning bidder will find several bidders to "accompany the bid" and win the bid after completing the bidding procedure; Another example is that in order to make a particular bidder win the bid, some bidders set up qualification conditions in the prequalification documents, bidding documents and bid evaluation methods that are conducive to the bid winner's breach of contract and restrict the exclusion of other bidders; Another example is that some bidders disclose the pre-tender estimate to bidders or * * * agree with the pre-tender estimate, instigating bidders to agree to lower the bid price. After winning the bid, they will use design changes, on-site visas, etc. to give extra compensation to bidders in the process of project implementation, leaving room for winning the bid at a low price and settlement at a high price.
The second category is collusion between bidders.
Some bidders form an alliance and collude in bidding by taking turns to sit in the village and several accompanying bidders; Some form the same interest body, reach an interest distribution agreement, and stipulate that the winning bidder will pay a certain percentage of the remuneration to the accompanying bidder; After winning the bid at a low price, some deliberately gave up and then shared the difference with the second place; Some take measures such as the legal representative does not sign, or the number of bidding documents does not match, or the quotation is missing, repeated pricing and so on. , and deliberately create invalid bids; In order to control the average bid evaluation price and get high marks, some bidders adopt agreements to raise or lower the bid price.
The third category is collusion between bidders and bidding agencies.
Some bidding agencies are instructed by the tenderee to assist the tenderee in colluding with bidders in bidding; Some illegal tendering agencies collude with bidders to seek illegal economic benefits, betray the interests of owners and win the bid.
(two) the manifestations of the affiliated and subcontracting behavior.
(of an organization) nominally and administratively affiliated with a major department.
It refers to some low-qualified, unqualified units and even individuals who have obtained bidding qualifications, and participate in bidding by borrowing or linking high-qualified units. Its main manifestations are as follows: a bidder is affiliated with and leases multiple enterprise qualifications to participate in the bidding of a bid section; Some bidders will buy out all the potential bidders who have passed the pre-qualification and win the bid; Some bidders lease multiple enterprise qualifications to participate in the prequalification of a bid section, and sell their bidding rights after passing the prequalification; Some units with high qualifications are not interested in participating in the bidding because the blocks are too small, but lend their qualifications to others to bid and collect management fees from them.
Illegal subcontracting
It refers to the behavior that the construction party (general contractor or contractor) subcontracts all contracted projects to others in violation of laws and regulations, or fails to set up a project management organization, send corresponding personnel to the construction site, and organize and manage the construction activities of the project after subcontracting. Its main manifestations are as follows: first, the contractor did not send a project management team after winning the bid or sent a project management team, but it did not meet the commitment of the bidding documents; Second, the contractor only collects management fees and does not manage the quality, safety, progress and cost accounting of the project; Third, the contractor transfers all the business undertaken to others, or transfers some of the business undertaken to others without the consent of the construction unit as required.
Analysis of the causes of bidding, collusion, affiliation and subcontracting.
At present, the phenomenon of collusive bidding, collusive bidding and subcontracting is more prominent in bidding activities, which not only causes a large loss of national construction funds, disrupts the bidding market order and affects the open, fair and just market environment, but also often involves commercial bribery, which encourages the spread of corruption and is extremely harmful. Although there are various forms of bidding, collusion, joint venture and subcontracting, the reasons for their existence are as follows:
(A) the laws and regulations and related supporting systems are not perfect.
Judging from the current bidding laws and regulations, there is a problem of "three more and three less". Namely: there are many principles and few specific rules; There are many prohibitions and few supporting penalties; There are many departmental rules and regulations, but few applicable norms. Especially with the vigorous development of the bidding industry and the emergence of new situations in recent years, the lag of relevant laws and regulations is more prominent. In addition, a series of management systems, such as enterprise qualification management, enterprise credit management, contract management, post-bid supervision management and project guarantee system, are still not perfect, which leads to the extremely irregular behavior of all parties involved in bidding activities. If the number of bidders is limited, there is an opportunity for illegal activities. On the grounds of reducing the workload of bid evaluation, some industries and regions stipulate that when there are too many qualified bidders, the tenderee can only choose seven or nine, 1 1 qualified bidders to participate in the bidding, or even directly recommend bidders to participate in the bidding. This provision has created convenient conditions for tenderers and bidders to bid in collusion with each other. Another example is that the standards or conditions of pre-qualification are not uniform. When preparing the prequalification standards, the tenderee shall set them according to his own needs. If a company wants to be shortlisted, it will be tailored according to the company's standards and set exclusive conditions. Most of the units that finally passed the prequalification have been controlled by one bidder. Another example is that the formulation of bid evaluation methods is unreasonable. At present, the popular bid evaluation method is comprehensive bid evaluation method, which sets scores in three aspects: business, economic quotation and technology. Business and technology are graded by the judges. According to the average price or a certain proportion of the average price quoted by the bidders, the quotation is the best quotation. In order to win the bid, the bidder must control the best offer and buy off the judges. This is the direct cause of bidding string.
(B) the management system and market supervision mechanism are not perfect
At present, the management system and supervision mechanism of the bidding industry are not perfect, and there are obvious defects.
First, multi-head supervision, regardless of primary and secondary. In recent years, discipline inspection, supervision, finance, auditing departments and procuratorial organs at all levels have actively participated in the supervision of project bidding. These measures have played a certain role in maintaining the seriousness of bidding and investigating violations of law and discipline. However, in practice, the various departments involved in supervision have different angles and no clear division of labor, which leads to unclear responsibilities and priorities, and supervision is easy to become a mere formality.
Second, there are many policies, and the joint force of supervision has not really formed. Many functional departments are responsible for the administrative supervision of the bidding market for engineering construction. However, for the problems encountered by various departments in the specific bidding administrative supervision, especially some outstanding problems involving the edge of the supervision function of their own departments, the long-term communication and coordination mechanism between relevant departments has not yet been established, and the information is blocked and fragmented, which can not cope with and solve many new situations and problems in time, resulting in blind spots and dead ends in the supervision work. Individual construction enterprises even have a red light and a green light, and some illegal acts can escape supervision for a long time.
Third, the supervision of contract execution needs to be strengthened. One of the important reasons why bidders dare to bid around is that after winning the bid, the tenderee, the supervision unit and the competent department do not have enough on-site management, lack of follow-up supervision on the commitments and contract provisions of the winning bidder, and fail to investigate and deal with the behaviors of changing the main personnel of the project department without authorization, subcontracting and illegal subcontracting after winning the bid. Fourthly, there is no effective restraint mechanism and means for the tenderee to adjust the contract price at will for various reasons during the contract execution.
(C) market competition mechanism failure and lack of integrity system
At present, the market competition mechanism of survival of the fittest in the bidding industry has not really formed, and the market environment of oversupply has formed a buyer's market, which makes the tenderer have absolute dominance in the bidding process. In the face of fierce market competition, bidders try their best to win the bid through various means and even illegal acts, which leads to repeated prohibitions and intensified behaviors such as bid rigging, bid collusion, affiliation and subcontracting.
In addition, the bidding agency market has not formed a fair competitive market environment. When selecting an agency, the tenderer does not pay attention to service, quality and reputation, and does not charge competitive agency fees according to the relevant provisions of the state, which leads to the illegal phenomenon that individual agencies passively collude with the tenderer and bidders because of low agency fees, and even play the role of the bond and planner of bidding, thus winning the bid and obtaining economic compensation for the illegal interests of bidders.
At the same time, at present, the national bidding credit system has not been established, so it is impossible to query the credit status of a bidder in time. This has caused a bidder to participate in bidding in another industry or another region after being punished by a certain industry department or a certain region for colluding in bidding and colluding in bidding. In the current market environment where social integrity is lacking, some enterprises pay one-sided attention to short-term behavior and long-term interests, ignoring the construction of integrity. In addition, at present, there is no effective system to prevent and punish dishonesty, so it is not surprising that individual enterprises have repeatedly "run red lights".
Poor law enforcement and punishment have led to this increase.
Due to the concealment of bidding, collusion, affiliation and subcontracting, it brings certain difficulties to law enforcement supervision; In addition, the standards and punishment methods of these violations in relevant laws and regulations are too rough and lack of operability. Even if the relevant violations are verified, some competent departments often deal with them in a way of scrapping and criticizing for the sake of the survival and development of enterprises, especially when large local state-owned enterprises are involved, which has no deterrent effect. Therefore, in the current environment where the relevant departments are lax in law enforcement and penalties for illegal activities in the bidding market, some market participants are driven by economic interests, considering that the cost paid by illegal activities is far less than the income obtained, and they will do whatever it takes to win the bid.
According to Article 53 of the Bidding Law, if bidders collude with each other or with the tenderee, they will be fined 5‰- 10‰ of the winning project amount; The person in charge and other directly responsible personnel who are directly responsible for the unit shall be fined 5%+00% of the amount of the unit; Illegal income, confiscate the illegal income; If the circumstances are serious, it will be disqualified from bidding for the projects that must be subject to tender according to law within 2 years and will be announced until its business license is revoked by the administrative department for industry and commerce.
It can be seen that as long as the circumstances are not particularly serious, even if the acts of bid rigging and collusive bidding are identified, the punishment for the tenderee and the person directly responsible is generally not great, and the warning and education function is not obvious.
Third, countermeasures and suggestions?
At present, in the bidding activities of construction projects, collusion, collusion and subcontracting are serious, which has brought serious harm to the bidding system and market. If measures are not taken in time to eradicate it, it will seriously disrupt the normal bidding market order, affect project quality and investment control, undermine open, fair and just market norms, and cause a lot of waste of manpower, material resources and financial resources. The main countermeasures and suggestions are as follows:
(A) improve the bidding laws and regulations
While implementing the laws and regulations on tendering and bidding that have been promulgated by the state, we should speed up the legislative pace of local laws and regulations, promulgate the Regulations on Tendering and Bidding in Chongqing as soon as possible, formulate corresponding implementation measures and relevant supporting policies, clarify the relevant systems and procedures of tendering and bidding activities, standardize the behaviors of participants in various activities, especially restrict the right of tenderers to freely choose bidding agencies, and weaken or reduce the discretionary space of tenderers in the process of preparing pre-qualification and bidding documents, evaluating bids and determining bids.
In particular, it is necessary to study and formulate specific identification standards for collusive bidding, collusive bidding, affiliation and subcontracting, and incorporate them into the clauses on the abolition of bids in the bidding documents. For example, the labor cost, material cost, machinery use fee, management fee, profit and other price components listed in the bidding documents of different bidders are the same; Another example is that the construction organization design schemes of different bidders are basically the same; If it has been reflected before the bid opening, it is found that the quotations of all bidders are consistent with the reflected situation after the bid opening; Another example is that the bidding documents of different bidders should not be exactly the same (text arrangement, text content, text and number errors, etc.). ). All these cases can be treated as invalid bids.
(2) Reform and innovate the bidding system.
At present, there are some defects and problems in the implementation of the bidding system, which requires our city to intensify reform and innovation and further improve the relevant systems. Therefore, it is recommended that:
The first is to implement the system of pre-selected contractors. On the premise of restricting the pre-qualification of Party A's specific projects, a pre-selection contractor qualification examination committee chaired by the executive deputy mayor of the municipal government or the leaders in charge shall be established, and the committee shall regularly review the contractor's qualification, financial status, quality assurance system, annual output value, annual tax payment and credit records every year. The qualified contractors will be included in the list of pre-selected contractors and published on the media and websites designated by the Chongqing Municipal People's Government. The construction unit of a construction project is generated from the list of pre-selected contractors. This system draws on the experience of Hong Kong, and it has not been implemented anywhere except Shenzhen Special Economic Zone.
The second is to establish an engineering construction transaction service center on the unified platform of the whole city. The trading center is a non-profit unit approved by the municipal government to provide trading places, information and consulting services for project contracting and contracting activities, and accept the supervision and guidance of the administrative department. All projects requiring construction bidding shall enter the trading center for bidding activities.
The third is to speed up the construction of electronic bidding platform. Building an electronic bidding platform is conducive to building a unified bidding market system and enhancing the transparency and openness of bidding management; Significantly reduce the bidding cost, effectively reduce the cost burden of the tenderee, and increase economic and social benefits; At the same time, it can effectively prevent the black-box operation in the bidding process and effectively reduce the occurrence of collusion and collusion. For example, in the trading center, through the unified electronic bidding platform, the list of potential bidders is always in a completely confidential state from the sale of bidding documents, bidding answering questions, on-site reconnaissance to bid opening. If potential bidders have any questions, they will submit them anonymously by e-mail, the tenderee will publish the Q&A documents online, and the potential bidders will obtain the Q&A documents online. A perfect inquiry and complaint handling process can provide an important channel for government departments to effectively supervise bidding work and deal with problems existing in bidding activities in time; The electronic bidding platform can also effectively solve the problem that the information of bid evaluation experts in various departments cannot be shared by building a local classified expert database.
(3) Improve the management measures for bidding and bid evaluation.
Referring to the internationally accepted bidding method in the Fidick clause, the lowest bid method will be fully implemented for all construction bidding projects that use state-owned funds or state-owned funds to invest in the holding or leading role. For simple engineering projects, the lowest price will be awarded without evaluation; For non-simple projects, the method of judging from the lowest price is adopted; For projects with complex technology and difficult construction, the bidder's quotation can be lowered by 3%-8% on average, and the specific downward ratio is stipulated by the tenderer in the tender documents, and the technical bid is only subject to qualification review; For projects with particularly complex single technology and special construction technical requirements, the competent department shall organize experts to demonstrate and submit their opinions to the office meeting of the municipal government for examination and approval. The comprehensive scoring method can be adopted, but the scoring weight of the commercial bid shall not be less than 50% of the total score. At the same time, take the following measures to ensure the full implementation of the lowest bid winning method.
First, the implementation of bidding project budget control price. Appropriately adjust the project budget price compiled by the compiling unit and publish it as the highest bid price limit.
The second is to carry out bidding with bill of quantities. The tenderer shall scientifically prepare the bill of quantities according to the tender documents, design drawings, site conditions, unified rules for engineering quantity calculation, project division, etc. , and it is forbidden to have tentative material brands, tentative prices or other terms with quotation gaps. Through detailed bidding, bidding in the form of list is true, open and transparent. If it is really necessary to change the design after winning the bid, the four units of construction, supervision, construction and design shall confirm the signature, and report the increase or decrease of engineering quantity and budget quotation to the project cost station for review and implementation;
The third is the evaluation and consultation of the bid evaluation committee. Each time, a number of experts are randomly selected to form a bid evaluation committee, and according to the provisions of the bidding documents, the bidding documents of the top three bidders who meet the substantive requirements of the bidding documents and have the lowest bid price are reviewed, consulted and demonstrated. In particular, the tender offer that is obviously lower than the project budget control price is carefully reviewed, and the unreliable low-price measures are inquired and corrected;
The fourth is to implement the project input commitment system. After winning the bid, the legal representative is required to sign the construction contract and commitment letter in person to ensure that the personnel and equipment are in place, with low price and high quality;
The fifth is to improve the risk insurance mechanism. The implementation of the bidding contract risk responsibility, low-cost risk guarantee guarantee system, contract management and project quality insurance, project contract performance guarantee and project payment guarantee system.
For example, if a project with a budget cost of 6.5438 million yuan wins the bid with 7 million yuan, it needs to deposit 3 million yuan in the bank as a guarantee. If anyone wins the bid at a low price and subcontracts it to another party instead of doing it himself, or there are problems such as changing the design to increase investment and expanding the engineering quantity at will on-site visa, the deposit will be deducted.
Sixth, strict qualification examination of bidders. Strictly check the bidder's business license, qualification certificate, safety production license, bid bond issuing unit, bid document seal, project manager certificate and project manager safety certificate during bid evaluation. Check the identity of the authorized representative of the bidder and the members of the project team, focusing on the proof of labor and social endowment insurance for more than one year. If the name of the employer of the labor contract or the name of the old-age insurance payer is inconsistent with the name of the bidder, the review will not be passed. At the same time, it is suggested that the proposed project manager must be required to attend the bid opening site together with the authorized representative of the project bidding, and inform the proposed project manager to participate in the tenderer's defense before sending the bid-winning notice to the proposed winning bidder.
Seventh, standardize the way of carrying forward the bid bond and allocating the project funds, make it clear that the bid bond must be carried forward through the bidder's bank account, and prohibit cash delivery and direct allocation of the project funds to individuals. The construction funds of the project owner can only be transferred to the enterprise legal person account opened by the winning bidder basic account or the winning bidder in the bank where the project is implemented, and stamped with the seal of the project manager promised in the bidding documents.
(4) Strengthen the supervision and management of the industry.
First, straighten out the bidding supervision and management system. It is suggested that the city should set up a comprehensive supervision and management department of bidding, integrate the bidding management functions scattered in other government departments, and be responsible for the comprehensive management and supervision of bidding, with emphasis on state-owned investment projects, especially government investment projects.
The second is to effectively strengthen the process supervision of bidding activities. Further improve the bidding information disclosure system, especially for government-invested projects and key construction projects, to disclose the whole bidding process information and accept social supervision.
Focus on checking the legality, fairness and justice of the tender announcement and tender documents, and supervise whether the process of bid opening, bid evaluation and bid selection is illegal or not; Owners and agencies who collude to compile illegal, unfair and unjust tender announcements and tender documents, set a "trap" for bidding or engage in "matching seats" should be dealt with severely according to law. Strengthen the supervision of the project after winning the bid. Conduct dynamic tracking inspection (sampling inspection) on the construction site of the winning project, mainly to check the implementation of the project contract, whether the on-site personnel of the winning unit are consistent with the bid-winning commitment, and check the payment and flow of project funds. Especially for the projects that win the bid with obvious low price, we should focus on tracking and supervision, strictly control design changes, and prevent malicious low-price bidding and high-price settlement after bidding; Those who are found to be affiliated, colluding in bidding or colluding in bidding should be dealt with in time according to law and exposed to the public to make an example.
The third is to strengthen the management of bidding agencies. It is forbidden to link, lend or borrow qualifications in any form. Once the intermediary agency violates the qualification management regulations, it will be dealt with severely. The tendering agency shall implement the employee registration system and maintain a stable employee team. Conduct regular business knowledge training and professional ethics education for employees, and constantly improve their business skills and professional ethics.
The fourth is to improve the bidding complaint reporting system and announce the telephone, fax and mailing address of the supervision and management department to the public. Complaints from stakeholders in bidding should be carefully investigated and verified, and those who violate the law should be dealt with seriously, and the results should be announced to the public.
(V) Accelerate the construction of the industry credit system.
Strengthening the construction of credit system is an effective means to improve the integrity of bidders and the performance of the winning bidder. It is suggested that the Municipal Development and Reform Commission should take the lead in establishing the credit database of bidding enterprises in the city together with relevant ministries and commissions, mainly including credit information collection, credit management evaluation, credit information database support, credit information query and so on. The relevant administrative supervision departments shall collect and count the bidders' dishonesty in time. This work can give full play to the role of industry self-discipline, allocate special funds, entrust the construction of Chongqing tendering and bidding association, and realize the inquiry, exchange and enjoyment of credit information of enterprises and bid evaluation experts in the city.
Any unit or individual who commits commercial bribery due to collusion in bidding and tendering, or fails to perform the contract after winning the bid, shall be recorded in the credit file as an important basis for the bidder's credit evaluation in the qualification examination and bid evaluation stage and one of the criteria for judging whether the bidder meets the market access. At the same time, build a credit reward and punishment mechanism to optimize the credit environment. Establish credit reward and punishment standards, build a disciplinary mechanism for dishonesty, and give administrative penalties and economic sanctions to bidding enterprises, bid evaluation experts and relevant responsible persons who are untrustworthy according to law, so as to increase the cost of dishonesty and make those who are untrustworthy lose more than they gain; Enterprises and individuals who keep their promises can be given priority, convenience or some form of reward in bidding, enterprise evaluation and qualification promotion, so as to benefit the trustworthy and continuously optimize the credit environment.