0 1 According to the law, projects beyond the scale standard and specific scope can be exempted from bidding. As we all know, the requirements for bidding come from Article 3 of the Bidding Law, including two types of projects that must be tendered according to law. The first category is domestic engineering construction projects whose project nature and funding sources conform to the provisions of this Law, and belong to the specific scope and scale standards stipulated in the Provisions on Compulsory Bidding of Engineering Projects (OrderNo. 16 of the National Development and Reform Commission) and the Provisions on the Compulsory Bidding Scope of Infrastructure and Public Utilities Projects (Regulation No.843 of the Development and Reform Commission [20/KLOC-0]). The second category is other projects that must be tendered according to laws or regulations of the State Council. (a) the first category of projects that must be subject to tender according to law shall meet the following conditions:
Construction projects in People's Republic of China (PRC). Engineering construction projects are divided into four categories: civil engineering, construction, installation and decoration of lines, pipelines and equipment, mainly including new construction, reconstruction and expansion of buildings and structures and related decoration, demolition and repair, as well as goods (equipment and materials) and services (survey, design and supervision) related to engineering construction;
The nature of the project belongs to large-scale infrastructure and public utilities projects such as energy, transportation, communication, water conservancy and urban construction, which are related to public interests and safety; Or the source of funds belongs to projects that use state-owned capital investment, state financing, loans or aid funds from international organizations or foreign governments.
The use of state-owned funds needs to meet the following requirements:
(1) The budget funds used are more than 2 million yuan, and the funds account for more than 10% of the investment;
(two) the use of funds of state-owned enterprises and institutions, and the funds account for the holding or leading position;
The survey, design, construction, supervision of engineering construction projects and the purchase amount of important equipment and materials related to engineering construction reach the legal tender amount, or the estimated contract amount that can be purchased together for the same project reaches the legal tender amount.
The general contract of the project must be tendered. Article 8 of the Measures for the Administration of General Contracting of Building Construction and Municipal Infrastructure Engineering stipulates that the design, procurement or construction within the scope of general contracting projects belongs to the scope of projects that must be subject to tender according to law, and if the project meets the scale standards stipulated by the state, the general contracting unit shall be selected through bidding.
(two) the second category of projects that must be subject to tender according to law.
This kind of project belongs to the expansion of the scope of compulsory bidding by relevant laws and regulations, such as scientific research projects (using government financial allocation), scientific research projects, franchise rights, drug procurement, etc.
(three) in addition to the project that must be tendered according to law, the tender may not be conducted.
For the above two types of projects that must be subject to tender according to law, state-owned enterprises can carry out procurement work by means of non-tendering, such as:
Non-engineering construction projects, non-scientific research projects, franchise rights, drug procurement and other projects, such as the procurement of raw materials and materials, the procurement of production parts modules or assemblies, enterprise consulting services, labor services, operation and maintenance services, logistics and warehousing services implemented by state-owned enterprises to achieve operational management objectives and maintain daily operations, can be exempted from bidding;
Construction projects implemented by state-owned enterprises abroad may not be subject to tender;
For individual decoration, demolition and repair projects unrelated to new construction, reconstruction and expansion of buildings and structures, the State Council Legislative Affairs Office's Reply on the Legal Application and Construction Permit Application of Government Procurement Projects (Guo Fa Han [2015] No.736) clearly puts forward "projects that are not subject to bidding according to law", such as office building painting, chimney demolition, building waterproof treatment and other decoration, demolition and repair.
The nature of the project and the source of funds used belong to the specific scope that must be tendered according to law, but the project whose single purchase amount does not meet the legal scale standard does not belong to the project that must be tendered according to law, and the tender may not be invited.
02
Projects that can meet the statutory circumstances without bidding.
(a) the legal situation of not inviting tenders
Article 66 of the Bidding Law and Article 9 of the Regulations for the Implementation of the Bidding Law stipulate that projects that meet the scale standards and specific scope that must be tendered according to law may not be tendered, as follows:
1, involving national security, state secrets, emergency rescue and disaster relief, or belonging to special circumstances such as using poverty alleviation funds to implement work instead of relief and requiring the use of migrant workers, which is not suitable for bidding;
2. It is necessary to adopt irreplaceable patents or proprietary technologies;
3. The purchaser can build, produce or provide it by himself according to law;
4. Investors who have selected franchise projects through bidding can build, produce or provide them by themselves according to law;
5. It is necessary to purchase the project, goods or services from the original winning bidder, otherwise the construction or functional requirements will be affected;
6, other special circumstances stipulated by the state.
(2) Problems that should be paid attention to when determining whether it meets the above-mentioned legal non-tendering situation.
The tenderer shall pay attention to the following issues when determining that the procurement projects that meet the scale standards and specific scope that must be tendered according to law may not be tendered:
The project that is not invited for bidding on the grounds of "using patents or proprietary technology" is an objective need of the project itself, which is irreplaceable and can only be provided by 1 or a few specific units;
For projects that are not invited to bid on the grounds that "the purchaser can build, produce or provide by himself according to law", the Interpretation of the Regulations for the Implementation of the Bidding Law points out that the purchaser does not include related parent companies, subsidiaries, independent legal persons or other organizations that have management or interests with it, and the purchaser should meet the statutory requirements and have the qualifications and capabilities for engineering construction, goods production or services.
For the project that is not invited for bidding on the grounds that "the project, goods or services need to be purchased from the original bid winner, otherwise the construction or functional requirements will be affected", it is necessary to confirm that the original project is the bid winner determined through bidding, and the bid winner has the qualification and ability to continue to perform the new project contract according to law. If the original winning bidder is not purchased, it will affect the supporting requirements of project construction or product use function.
03
Other projects that cannot be tendered.
(a) the project that must be subject to tender according to law after two failed tenders.
If less than three bidders submit bidding documents for a project that must be tendered according to law, the tenderer shall re-tender after analyzing the reasons for the failure of bidding and taking corresponding measures. After re-tendering, there are still less than three bidders, which belong to the construction project that must be approved. According to Article 38 of the Measures for Tendering and Bidding of Construction Projects and Article 34 of the Measures for Tendering and Bidding of Construction Project Goods, after the project is submitted to the original examination and approval department for examination and approval, the bidding can no longer be conducted.
(2) Subcontracting procurement projects within the scope of the general contracting bidding project contract.
Article 19 of Several Opinions of the Ministry of Housing and Urban-Rural Development on Promoting the Development and Reform of the Construction Industry (Jianshi [2014] No.92) stipulates that it is necessary to promote the establishment of bidding and construction management mechanisms adapted to the development of general contracting projects, adjust the existing management systems such as bidding, construction permit, on-site law enforcement inspection, completion acceptance and filing, and create a policy environment for the implementation of general contracting projects. The design and construction business covered in the project general contract can no longer be determined by public bidding.
Article 3 of Opinions of General Office of the State Council on Promoting the Sustainable and Healthy Development of Construction Industry (Guo Ban Fa [2065 438+07] 19) stipulates that it is necessary to speed up the improvement of bidding, construction permit, completion acceptance and other system provisions related to general contracting of projects. According to the principle of overall responsibility of general contracting, the responsibilities of general contracting unit in project quality and safety, schedule control and cost management are implemented. Except for projects that are included in the scope of general contracting and must be subject to tender in the form of temporary evaluation according to law, the general contracting unit of the project may directly contract out other professional businesses covered in the general contracting contract.
To sum up, in addition to the projects that are included in the scope of general contracting and must be subject to tender in the form of temporary evaluation according to law, the general contracting unit can directly contract out other procurement items covered by the general contracting contract.
04
Extended reading
1, the * * * Bidding Law of People's Republic of China (PRC) stipulates
Article 3 The following construction projects within the territory of People's Republic of China (PRC), including engineering survey, design, construction, supervision and procurement of important equipment and materials related to engineering construction, must be subject to tender:
(a) large-scale infrastructure, public utilities and other projects related to social interests and public safety;
(2) Projects that are wholly or partially invested with state-owned funds or financed by the state;
(3) Projects using loans or aid funds from international organizations or foreign governments; The specific scope and scale standards of the projects listed in the preceding paragraph shall be formulated by the development planning department of the State Council in conjunction with the relevant departments of the State Council and submitted to the State Council for approval.
Article 66 For projects involving national security, state secrets, emergency rescue and disaster relief, or the use of poverty alleviation funds for work relief, and the need to use migrant workers, which are not suitable for bidding, bidding may not be conducted in accordance with relevant state regulations.
2. "Regulations for the Implementation of the Bidding Law of People's Republic of China (PRC)" stipulates that
Article 2 The term "construction projects" as mentioned in Article 3 of the Bidding Law refers to projects and goods and services related to project construction.
The project mentioned in the preceding paragraph refers to construction projects, including new construction, reconstruction and expansion of buildings and structures and their related decoration, demolition and repair; Goods related to project construction refer to the equipment and materials that constitute part of the project and are necessary to realize the basic functions of the project; Services related to project construction refer to services such as survey, design and supervision required to complete the project.
Article 3 The specific scope and scale standards of construction projects that must be subject to tender according to law shall be formulated by the development and reform department of the State Council in conjunction with the relevant departments of the State Council, and promulgated for implementation after being approved by the State Council.
Article 9 Except for the special circumstances stipulated in Article 66 of the Bidding Law, no bidding shall be conducted under any of the following circumstances:
(a) the need to adopt irreplaceable patents or proprietary technology;
(2) The purchaser may construct, produce or provide it by himself according to law;
(3) Investors of franchise projects selected through bidding can construct, produce or provide them by themselves according to law;
(four) the need to purchase projects, goods or services from the original winning bidder, otherwise it will affect the construction or functional requirements;
(five) other special circumstances stipulated by the state. If a tenderer practices fraud in order to apply the provisions of the preceding paragraph, it belongs to the evasion of bidding as stipulated in Article 4 of the Bidding Law.
3, housing construction and municipal infrastructure project general contracting management measures
Article 8 The construction unit shall select the general contractor of the project through bidding or direct contracting according to law.
In the design, procurement or construction within the scope of general project contracting, if it belongs to the project scope that must be subject to bidding according to law and reaches the scale standard stipulated by the state, the general project contracting unit shall be selected through bidding.
4, engineering construction project construction bidding method
Article 38? The bidder shall seal the bid documents and deliver them to the bidding place before the deadline for submission of bid documents. After receiving the tender documents, the tenderer shall issue a certificate to the bidder, indicating the recipient and the time of receipt, and no unit or individual may open the tender documents before the bid opening.
Tender documents delivered after the deadline for submission of tender documents required by the tender documents shall be rejected by the tenderer.
If less than three bidders submit bidding documents for a project that must be subject to construction bidding according to law, the tenderee shall re-bid according to law after analyzing the reasons for the failure of bidding and taking corresponding measures. If there are still less than three bidders after re-tendering, it belongs to a construction project that must be approved, and the bidding can be stopped after being approved by the original examination and approval department; For other construction projects, the tenderer may decide not to invite tenders at his own discretion.
5, engineering construction project goods bidding method
Article 34 A bidder shall deliver the bid documents to the place specified in the tender documents in a sealed manner before the deadline for submission of the bid documents required by the tender documents. After receiving the tender documents, the tenderer shall issue a certificate to the bidder, indicating the recipient and the time of receipt, and no unit or individual may open the tender documents before the bid opening.
Tender documents delivered after the deadline for submission of tender documents required by the tender documents shall be rejected by the tenderer.
If less than three bidders submit bidding documents for a project that must be tendered according to law, the tenderer shall re-tender after analyzing the reasons for the failure of bidding and taking corresponding measures. After re-tendering, there are still less than three bidders, and the project that must be tendered according to law and needs to go through the examination and approval procedures in accordance with relevant state regulations may not be tendered after being reported to the project examination and approval department for examination and approval.
6. Opinions of the Ministry of Housing and Urban-Rural Development on Promoting the Development and Reform of the Construction Industry (Jianshi [2065438+04] No.92)
(nineteen) increase the implementation of general contracting. Advocate the general contracting mode for engineering construction projects, and encourage powerful engineering design and construction enterprises to carry out general contracting business. Promote the establishment of bidding and project construction management mechanisms that adapt to the development of general contracting, adjust the existing management systems such as bidding, construction permit, on-site law enforcement inspection, completion acceptance and filing, and create a policy environment for the implementation of general contracting. The design and construction business covered in the general contract can no longer be determined through public bidding.
7. Opinions of General Office of the State Council on Promoting the Sustainable and Healthy Development of Construction Industry (Guo Ban Fa [2065]19)
(3) Accelerate the implementation of general contracting. In principle, the general contracting mode should be adopted for prefabricated buildings. Government investment projects should improve the construction management mode and take the lead in general contracting. Accelerate the improvement of relevant rules and regulations on general contracting of projects such as bidding, construction permit and completion acceptance. According to the principle of overall responsibility of general contracting, the responsibilities of general contracting unit in project quality and safety, schedule control and cost management are implemented. Except for projects that are included in the scope of general contracting and must be subject to tender in the form of temporary evaluation according to law, the general contracting unit of the project may directly contract out other professional businesses covered in the general contracting contract.
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