The 2021 bidding system has been greatly changed! "The lowest price won the bid" and many other systems withdraw
2021-08-06
"Tendering and Bidding Law"
--Countdown to completion--
On June 11, 2021, the General Office of the State Council issued the "State Council 2021 Legislative Work Plan", which announced 18 bills and 28 proposals to be submitted to the Standing Committee of the National People's Congress for deliberation this year. Administrative regulations formulated and revised. This mentioned that the Draft Revised Tendering and Bidding Law is going to be submitted to the Standing Committee of the National People's Congress for deliberation.
In December 2019, the National Development and Reform Commission issued the "Law of the People's Republic of China on Bidding and Bidding (Revised Draft for Public Comment)" (hereinafter referred to as the "Draft for Public Comment") to solicit public opinions. Mainly focus on outstanding issues in the field of bidding: bidding and stringing of bids, illegally obstructing potential bidders, winning bids with low quality and low prices, illegally setting bidder thresholds, arbitrarily abolishing bids and more!
It is submitted to the Standing Committee of the National People's Congress for deliberation, indicating that the countdown to the completion of the revision of the Tendering and Bidding Law has entered. The "Tendering and Bidding Law" that has been implemented for nearly 20 years will usher in a overhaul!
Rectify low-quality and low-price bidding chaos
The "evaluated minimum bid price method is only applicable to projects that have general technology and performance standards or the tenderee has no special requirements for its technology and performance", which limits the freedom of the tenderee to choose the bid evaluation method. The addition of this provision is based on the "compromising" treatment that has emerged in the society in the past two years that the low-price bid has caused the decline in the quality of the project.
# Announcement notice #
The "Law of the People's Republic of China on Bidding and Bidding (Revised Draft for Public Comment)" is clear:
1. Bidders must not bid at an abnormally low price that may affect the performance of the contract at a price lower than the cost.
If it is found that the bidder's quotation is abnormally low, which may affect the performance of the contract, the bidder shall be required to clarify within a reasonable time or explain, and provide necessary supporting materials< /strong>. If the reasonableness of the quotation cannot be explained and the risk of contract performance is too high, the bid shall be rejected.
2. The tenderee shall select and determine the bid evaluation method from the following methods in accordance with the actual needs and technical characteristics of the bidding project:
(1) Comprehensive evaluation method, that is, the method to clarify that the bidders whose bidding documents can meet the comprehensive evaluation criteria specified in the bidding documents to the greatest extent are the winning bidders.
(2) The evaluated lowest bid price method, that is, the bid documents can meet the substantive requirements of the bidding documents, and the evaluated bid price is the lowest The bidder is the bid evaluation method of the successful bidder candidate; but except for the unusually low price that may affect the performance of the contract if the bid price is lower than the cost.
(3) Other bid evaluation methods stipulated by laws, administrative regulations, and departmental rules.
The reviewed lowest bid price method is only applicable to projects that have general technology and performance standards or that the tenderer has no special requirements for their technology and performance.
The state encourages bidders to include full life cycle cost as a price review factor, and give priority to the lowest energy resource consumption and minimal environmental impact within the full life cycle under the same conditions Bids.
3. Before determining the winning bidder, unless otherwise provided by laws and administrative regulations, the tenderee shall not negotiate with the bidder on the substantive content of the bid price, bid plan, etc. However, under the premise of not affecting fairness, the tenderee can negotiate with the bidders on the implementation details of the bidding plan.
The winning bidders will no longer be sorted
The current "Tendering and Bidding Law" stipulates that the bid evaluation committee is responsible for bid evaluation. The tenderee shall determine the winning bidder from the winning bidders based on the bid evaluation report. There is no requirement that the tenderee must determine the number one winning bidder as the winning bidder. However, the "Regulations on the Implementation of the Tendering and Bidding Law" promulgated and implemented in 2012 added "State-owned funds occupy a controlling or dominant position for projects that must be tendered in accordance with the law, and the tenderee shall determine the first-ranked candidate as the winning bidder" Regulation. As a result, the right of the bid inviting party to determine the winning bidder is subject to certain restrictions, and it cannot freely choose the winning bidder among the three bid winning candidates. In fact, as the main body responsible for the construction project, the tenderee bears full responsibility for the construction progress, capital control, project quality, project revenue, project operation, and investment repayment.
The selection of the right and appropriate bidder is the key to the success of the project. In the process of selecting the winning bidder, sometimes the second-ranked candidate's comprehensive score is almost the same as that of the first one, but the price is much lower than that of the first one. Or sometimes the second-ranked candidate has the same price as the first-placed candidate, but has been cooperating well with the tenderer and the tenderer fully trusts him. Under these circumstances, the tenderee often hopes to choose the second place to win the bid, and such a choice is also reasonable. Based on this, the revised draft made a bold breakthrough, introducing "assessment separation".
The specific method of "assessment separation" is: the bid evaluation committee recommends no more than three qualified bid winners to the bid winner, and explains the advantages and risks of each bid winner; except that the bidding documents are clear In addition to the requirements for ranking, the recommended candidate for bidding does not indicate the ranking. According to the written bid evaluation report submitted by the bid evaluation committee and the recommended bid-winning candidates, the tenderee shall independently determine the winning bidder in accordance with the bid awarding method specified in the bidding documents, combined with the review of the bid-winning candidate's contract performance capabilities and risks. Of course, in order to avoid the arbitrariness of the bidder's bidding, the bidding method should be scientific, standardized, and transparent, and clear requirements should be made in the bidding documents.
# Announcement notice #
The original Article 40 of the Tendering and Bidding Law was revised as follows:
Article 47 The bid evaluation committee shall, in accordance with the bid evaluation standards and methods determined in the bidding documents, conduct collective research and independently evaluate and compare the bid documents; if there is a base bid, it shall refer to it Base bid. After the bid evaluation committee completes the bid evaluation, it shall submit a written bid evaluation report to the tenderer, and recommend no more than three qualified bid winners, and evaluate the advantages and risks of each bid winner. The situation shall be explained; Except for those clearly required in the bidding documents, the recommended candidates for the successful bid shall not be indicated. According to the written bid evaluation report submitted by the bid evaluation committee and the recommended bid winners, the bidder will follow the bidding method stipulated in the bidding documents and review the contract performance and risks of the bid winners. >The winning bidder shall be determined independently within 20 days from the date of receipt of the bid evaluation report. The bidding method should be scientific, standardized and transparent. The tenderee may also authorize the bid evaluation committee to directly determine the winning bidder.
If the State Council has special regulations on the evaluation of specific bidding projects, those regulations shall prevail.
The original Article 42 was revised to:
Article 48 After review, the bid evaluation committee believes that all bids do not meet the requirements of the bidding documents, it may should reject all bids.
If all bids for projects that require bidding in accordance with the law are rejected, the bid inviting party shall analyze the reasons for the failure of the bidding, and if necessary, after modifying the bidder qualifications set in the bidding documents or other corresponding measures, in accordance with this law Re-tender. After re-bidding, If there are less than three bidders, bids can be opened, evaluated, or determined by other methods in accordance with the law to determine the winning bidder from the existing bidders, and filed with the relevant administrative supervision department; all If the bid is rejected again, the bidding may be discontinued, and it shall be filed with the relevant administrative supervision department.
"Recommended winning candidates do not indicate their ranking. The significance of this regulation is extremely significant. This kind of calibration method is more scientific, standardized, and transparent, and can effectively prevent chaos such as black-box operations, pre-booking or deliberately appointing the winning bidder. "Zhu Shuying said.
About general project contracting
The subcontracting of general engineering contracting (some documents refer to "recontracting of general contracting") is not clearly supported by the upper-level law and the current legal level is not enough. In this amendment, there are also clear amendments. .
# Announcement notice #
This modification is:
According to the contract or with the consent of the tenderer, the winning bidder may subcontract part of the non-subject and non-critical work of the winning project to others for completion. The main body and key work of the winning project shall not be subcontracted. If the state has other regulations on the subcontracting of general engineering contracting projects, government and social capital cooperation projects, etc., such regulations shall prevail. Except as otherwise provided by laws and administrative regulations, the winning bidder can independently determine the subcontractor. The person who accepts the subcontract shall have the corresponding qualifications and shall not subcontract again.
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