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"The goal of deepening the reform of the investment system is to reform the government's management system for corporate investment and implement the autonomy of corporate investment in accordance with the principle of "who invests, who makes decisions, who benefits, and who bears risks";
If the deprivation enterprise (tenderee)'s purchasing decision-making power (the decision-making power) is obviously contrary to the decision of the Third Plenary Session of the 16th CPC Central Committee, it is also inconsistent with the "Decision of the State Council on Investment System Reform." Let the bid evaluation committee that was temporarily formed to set the bid, obviously has the suspicion of “cutting the investment decision-making right to the enterpriseâ€.
One of the basic problems in China's bidding: the expansion of bidding
As long as you take another small step, as if you are taking a small step in the same direction, the truth will become a mistake. - Lenin
As is well known, tendering is a method of procurement, an organized market trading act, and a method of buying and selling goods, works and services. Bidding is a means for bidders to choose the most suitable and most reasonable supplier, contractor and service provider. The bidding process is the process of selection. However, China's bidding is not only a procurement method, it is mechanically incorporated into the government management procedures, and is a means and method of government administration. Thus, the following phenomena have emerged:
1. The various administrative departments of the government are in charge of each other and compete for the right to manage bidding. The administrative regulations on tendering are soaring. What's more, the "Tendering and Bidding Law" is ignored.
Originally, in terms of bidding, a "Tendering and Bidding Law" would suffice. But now, the two laws are in conflict, the administrative regulations are criss-crossed, and the bidder's bidders are at a loss. Harmony every day, the regulations are the same, and where is the harmony!
2. Where the purchase is made, it must be tendered and it is open tender. From the land to the envelope, public bidding is required. There are many ways to purchase, and each type of procurement has its applicability. Open tendering has many advantages, but compared to other procurement methods, it is a costly and time-consuming procurement method. Before choosing a public bidding, we should have a "successful" argument.
3. Due to the abuse of tenders, especially the abuse of open tendering, it has had a negative impact on both the tenderer and the bidder. It is difficult for bidders to establish the concept of “bidding is a good procurement methodâ€; bidders no longer think that “bidding is a beneficial competitive opportunity.†Bidding is no longer a conscious act of the bidder, but a helpless forced behavior. - This is the sadness of China's bidding!
Today, the strange things that appear in China's bidding are strange and not strange, and are inevitable. Because China’s bidding has been distorted! A wrong understanding cannot produce the correct result.
Another manifestation of the expansion of the bidding role is that bidding is considered a weapon to prevent commercial bribery and corruption. Commercial bribery and corruption have been rampant in the land of China, such as floods and beasts. Can a procurement method really prevent bribery and corruption? In fact, this misunderstanding has led to the following consequences:
1. Believing that bidding is a weapon to prevent bribery and corruption, thus making people's minds relaxed in their vigilance against bribery and corruption;
2. When accepting supervision and inspection, say "I am through tendering", it may be exempt from inspection. Even if you find a problem, you can shirk it to the bid evaluation committee. In fact, tendering has become an umbrella for bribery and corruption;
3. Bidding is considered a weapon to prevent bribery and corruption, so no matter what purchases, public bidding is used.
We note that the World Bank’s Procurement Guidelines and Model Bidding Documents contain provisions on preventing bribery and corruption. This just shows that the tendering process is prone to bribery and corruption. The tender itself is not a weapon to prevent bribery and corruption.
Bidding is just a form of procurement. We cannot give too many missions to the tender!
The second basic problem in China's bidding: separation of investment and decision-making
Further establish the status of the investment subject of the enterprise, who will invest, who will make decisions, who will benefit, and who will bear the risks. - Decision of the Third Plenary Session of the 16th CPC Central Committee
Another problem with Chinese tendering is the separation of investment and decision-making. The so-called "separation of investment and decision-making" means that the tenderer as an investor is deprived of the decision-making power in the bidding, that is, the investor and the decision-maker are not the same person, and the investment and decision-making are separated.
1. The main position of the tenderee in the bidding process is to enjoy the decision-making power
Investment projects generally have procurement content. Procurement is an important part of the process of corporate investment decision-making. The enterprise has the right to make purchasing decisions (that is, the bidding decision-making power when the tenderer invites the bidding) is an important part of the enterprise (tenderee) enjoying the status of the investment subject.
The decision of the Third Plenary Session of the 16th CPC Central Committee clearly stated that "further establish the status of the investment subject of the enterprise, who will invest, who will make decisions, who will benefit, and who will bear the risks."
The "Decision of the State Council on Investment System Reform" (Guo Fa [2004] No. 20) also clearly states:
"The guiding ideology for deepening the reform of the investment system is: in accordance with the requirements of improving the socialist market economic system, under the national macro-control, give full play to the basic role of market allocation of resources, and establish the main position of enterprises in investment activities, ..."
"All regions and departments must improve management methods and standardize management behaviors, and must not intercept the investment decision-making rights given to enterprises in any name."
If the tenderer of the investment is not given the decision-making power in the bidding, the bidder cannot bear the investment risk, and the tenderee can shirk the risk.
Therefore, we should clarify the bidder's decision-making power in the bidding. Only in this way, the tenderee cannot shirk the risk of undertaking the investment, and the tenderee will be cautious in the calibration.
Once the bidder has been clearly and fully given the right to bid in the bidding process, the phenomenon of the bidder avoiding the bidding will be greatly reduced.
2. The Tendering and Bidding Law has given the bidder the right to make decision-making
Who determines the winning bidder, that is, who is the decision-making authority? The provisions of the Tendering and Bidding Law were originally very clear: "The tenderee shall determine the winning bidder according to the written evaluation report submitted by the bid evaluation committee and the recommended winning bidder. The tenderee may also authorize the bid evaluation committee to directly determine the winning bidder."
The above provisions of the Tendering and Bidding Law clearly show that the bidder shall determine the winning bidder, that is, the decision-making power shall be returned to the tenderee.
However, China's various bidding and tendering "Management Measures" / "Implementation Measures" have more or less deviated from the above provisions. The tenderer who should enjoy the decision-making power in the legal decision has no decision-making power; the bid evaluation committee that cannot enjoy the decision-making power in law has the right to make decision-making.
Due to this deviation of the Administrative Measures/Implementation Measures, the following phenomena have occurred:
1. The tenderer is worried that the procurement will not be satisfactory and the bidding will be avoided.
2. As an investor, the tenderer has no decision-making power, has grievances, does not cooperate with the tendering agency, and even creates various obstacles for the tendering.
3. In order to allow the bidder to win the bid, the bidder will exclude other potential bidders, causing other potential bidders not to bid. Therefore, in order to satisfy the three bidders, the phenomenon of “accompanying the bid†has appeared frequently.
Please note that the Tendering and Bidding Law stipulates that “the tenderee may also authorize the bid evaluation committee to directly determine the winning bidder.â€
The word "also" in this regulation can explain:
1. The tenderer usually does not authorize the bid evaluation committee to directly determine the winning bidder, but the bidder himself determines the winning bidder.
2. If the bid evaluation committee directly determines the winning bidder, it must have the authorization of the bidder. Without the authorization of the tenderer, the bid evaluation committee has no right to directly determine the winning bidder.
3. The tenderee may authorize the bid evaluation committee to directly determine the winning bidder;
4. This provision fully reflects the main position of the tenderer in the tendering activities. The main position of the tenderer in the bidding activities is inviolable.
5. Whether the tenderer entrusts the bid evaluation committee to directly determine the winning bidder is the right of the bid inviting party and should be decided by the bid inviting party. No department has the right to force the tenderer to entrust the bid evaluation committee to directly determine the winning bidder, and it has no right to force the bid evaluation committee to directly determine the winning bidder without the bidder's authorization.
Third, the bid evaluation committee can not bear civil liability and criminal responsibility
What is the legal status and role of the bid evaluation committee in the bidding and tendering activities?
1 . The bid evaluation committee is formed by the tenderer / tendering agency and is a temporary working group.
According to the General Principles of the Civil Law of the People's Republic of China, only natural and legal talents have the capacity for civil rights and civil capacity. The bid evaluation committee is a temporary working group formed by the tenderer/tendering agency. It is neither a natural person nor a legal person. Therefore, the bid evaluation committee does not have the capacity for civil rights and civil capacity, that is, it cannot bear civil liability or criminal responsibility.
2 . The bid evaluation committee is the “evaluation†standard committee, not the “definite†standard committee.
“Review†is evaluation/review/review, analysis, and comparison.
Article 37 of the Tendering and Bidding Law stipulates that “the bid evaluation shall be undertaken by the bid evaluation committee established by the tenderee according to law.†The content of the bid evaluation committee is clearly defined here, that is, the bid evaluation committee is responsible for the bidding. Evaluation/review/review, analysis, comparison.
The Tendering and Bidding Law does not have the right to award the bid evaluation committee. The Tendering and Bidding Law stipulates that “after the evaluation of the bid evaluation committee , the bid evaluation committee shall submit a written evaluation report to the tenderee and recommend qualified candidates for winning the bid.†It is clearly stated here that the bid evaluation committee only has the right to “recommend†the winning bidder. And, the "qualified" winning bidder must be recommended. Since it is a "candidate", its number should be greater than one. The bid evaluation committee can sort the candidates for reference when the bidder/tendering agency determines the bid.
3 . The bid evaluation committee is responsible to the tenderer/tendering agency
The bid evaluation committee is formed by the tenderer/tendering agency and assists the bidder/tendering agency in evaluating the bid. The bid evaluation committee shall be responsible for the bidder/tendering agency. The "Tendering and Bidding Law" stipulates that "after the bid evaluation committee completes the bid evaluation, it shall submit a written evaluation report to the tenderee, ..." Please note that it is a "written" "report", which is submitted to the tenderer/tendering agency. Who is responsible for it and who to report to.
4 . Without the authorization of the tenderer/tendering agency, the bid evaluation committee has no right to mark
The Tendering and Bidding Law stipulates that “the tenderee may also authorize the bid evaluation committee to directly determine the winning bidder.†This means that without the authorization of the tenderer/tendering agency, the bid evaluation committee has no right to determine the bid.
5 . The bid evaluation committee is the decision-making staff of the tenderer/tendering agency and is the advisory group.
The Tendering and Bidding Law stipulates that “the bid evaluation committee shall be composed of representatives of the tenderee and experts in relevant technical and economic fields.†Therefore, the bid evaluation committee is a knowledge-based, consulting-type temporary working group, which is the tenderee/ The decision-making staff of the tendering agency. Therefore, the bid evaluation committee's evaluation report is informative, not decision-making.
6 . To distinguish between the bid evaluation committee and the members of the bid evaluation committee
The members of the bid evaluation committee and the bid evaluation committee are not a concept. The members of the bid evaluation committee are natural persons and must bear legal responsibility for their actions. The members of the bid evaluation committee must have professional ethics and must evaluate the bids in a fair and impartial manner. The Tendering and Bidding Law stipulates the legal liability of the members of the bid evaluation committee.
7 . The anti-corruption ability of the bid evaluation committee (member) is lower than that of the bidder
why? The reason is very simple: because the tenderer is an investor and is the bearer of investment risk. A risk-taking investor, is his anti-corruption ability not as good as someone else who does not take risks in investing (for example, tendering agencies, judges, etc.)? Regardless of the nature of the investor's funds, the investor is always responsible for the funds he uses.
Due to the right to be awarded the bid evaluation committee, the bidder has tried every means to obtain information on the members of the bid evaluation committee and may implement commercial bribery for commercial needs.
Because the bid evaluation committee (members) has less anti-corruption ability than the bidder. So, the dramatic scene appeared:
The members of the bid evaluation committee may be drawn 30 minutes before the bid opening;
Strictly guard against the judges, collect mobile phones, and cut off any contact with the outside world;
The judges, one person, one position, like the college entrance examination, must not whisper;
The bid evaluation site is heavily guarded and at least orange level;
....
Fourth, scientific, reasonable, and legally let the decision-making power of the standard "three pillars"
In order to maintain the dignity of the "Tendering and Bidding Law of the People's Republic of China" and the healthy development of China's bidding, combined with the status quo of China's bidding, we solemnly recommend that the right to set the standard be "three pillars."
The specific measures are as follows:
1. The “three-legged†is: the tenderee, the bid evaluation committee and the administrative supervision department.
2. The calibration right allocation scheme is designed as:
1 The bid evaluation committee shall evaluate the bids according to the provisions of the bidding documents and evaluate the winning bidders. The winning bidders are 2-3 people and must have a detailed analysis and assessment of the candidate's strengths and weaknesses. Can be sorted or not. If the tenderer asks for sorting, it must be sorted.
2 Under normal circumstances, the tenderer determines the winning bidder among the candidates and selects them as much as possible.
3 The tenderer may also request that the successful bidder be identified among the bidders other than the candidate. However, a written application must be submitted to the administrative supervision department for sufficient reasons.
4 After receiving the written application from the tenderee, the administrative supervision department shall make a decision on whether to allow the successful bidder to be determined outside the candidate. If the administrative supervision department has no ability to make a decision, it may authorize the bidding and tendering association and other organizations to make a ruling.
5 The tenderee may also authorize the bid evaluation committee to directly determine the winning bidder.
3. The above 5 are a complete program. The program makes the right to scale "three pillars", the three parties mutually restrict each other, and the three parties' quota rights are relatively limited.
Let us return to the "Tendering and Bidding Law" to allow the tenderee to enjoy the decision-making power that should be enjoyed. Only in this way can bidding become a procurement method that enterprises consciously adopt. When the bidding became a kind of procurement method that the enterprise consciously adopted, the spring of Chinese bidding came!
Don't take the bean bag improper dry food
Don't take improper bidding