Comment on legal provisions of bid evaluation link
1. Bid evaluation subject: the bid evaluation committee established by the tenderer according to law.
Article 37 of the Bidding Law stipulates: "The bid evaluation shall be undertaken by the bid evaluation committee established by the tenderer according to law. For projects that must be subject to tender according to law, the bid evaluation committee consists of representatives of the tenderee and relevant technical and economic experts, with an odd number of more than five members, of which the technical and economic experts shall not be less than two thirds of the total number of members. "
2. Bid evaluation basis: bid evaluation standards and methods stipulated by laws, regulations and bidding documents.
Article 49 of the Regulations on the Implementation of the Bidding Law stipulates: "The members of the bid evaluation committee shall objectively and fairly put forward their evaluation opinions on the bidding documents in accordance with the provisions of the Bidding Law and these Regulations and the bid evaluation standards and methods specified in the bidding documents. Standards and methods not specified in the tender documents shall not be used as the basis for bid evaluation. "
3. Bid evaluation process
(1) Bid evaluation preparation. Article 15 of the Interim Provisions on Bid Evaluation Committees and Methods stipulates: "Members of the Bid Evaluation Committee shall prepare corresponding bid evaluation forms, carefully study the bidding documents, and at least be familiar with and understand the following contents: (1) the purpose of bidding; (2) The scope and nature of the project subject to tender; (three) the main technical requirements, standards and commercial terms stipulated in the tender documents; (4) The bid evaluation criteria and methods specified in the tender documents and the relevant factors considered in the bid evaluation process. "
(2) preliminary examination. Article 52 of the Regulations for the Implementation of the Bidding Law stipulates: "If there are ambiguous contents, obvious words or calculation errors in the bidding documents, if the bid evaluation committee considers it necessary for the bidder to make necessary clarifications and explanations, it shall notify the bidder in writing. The clarification and explanation of the bidder shall be in written form and shall not exceed the scope of the bidding documents or change the substantive contents of the bidding documents. "
According to the above provisions, clarification needs to pay attention to the following four issues:
First, clarification must be put forward in writing by the bid evaluation committee;
Secondly, there are three situations that need to be clarified: the bidding documents contain ambiguous contents, the bidding documents are inconsistent with similar issues, and there are obvious textual and calculation errors in the bidding documents;
3. The clarification statement shall not go beyond the scope of the tender documents or change the substantive contents of the tender documents;
Fourth, the bidder shall make written clarification, explanation and correction in accordance with the written clarification requirements of the bid evaluation committee;
Fifth, the bid evaluation committee can only ask for clarification of the bidding documents that meet the statutory requirements according to law, and shall not imply or induce the bidders to clarify and explain, and shall not accept the clarifications and explanations put forward by the bidders.
(3) Review in detail. Article 29 of the Interim Provisions on the Bid Evaluation Committee and Bid Evaluation Methods stipulates: "Bid evaluation methods include the lowest evaluated bid price method, comprehensive evaluation method or other bid evaluation methods permitted by laws and regulations." The content of the detailed evaluation of the evaluated lowest bid price method is to make necessary adjustments to the price elements of the bidding documents according to the methods specified in the bidding documents, so as to compare the price elements of all bidding documents according to a unified caliber. Possible adjustments of price factors include deviation of bidding scope, increase (or decrease) of items (or items) in bidding, difference of time value of funds caused by deviation of payment terms, direct profit and loss brought by deviation of delivery date (construction period) to the tenderee, loss of foreign currency exchange rate conversion, increase or decrease of expenses such as taxes and fees that should be considered in bid evaluation but not included in quotation.
The content of detailed evaluation by comprehensive evaluation method is to quantitatively convert various factors such as price, business and technology into currency, score or proportional coefficient according to the standard (score or currency) stipulated in the bidding documents, and then compare them.
(4) Recommend the successful candidate. Article 53 of the Regulations for the Implementation of the Bidding Law stipulates: "After the bid evaluation, the bid evaluation committee shall submit a written bid evaluation report and a list of successful candidates to the tenderer. There should be no more than three successful candidates, and the ranking should be indicated. "
Second, common problems in the process of bid evaluation
Problems in bid evaluation are often closely related to the compilation of bidding documents. If these problems are stipulated in laws, regulations or bidding documents, it will be easier to solve; If there are omissions and errors in the preparation of bidding documents, the problem is relatively difficult to solve. Specifically, there are the following types of problems:
1. The first kind of problems: the common situation that unqualified bidders are rejected.
Subject identity: refer to the provisions of the pre-qualification documents for standard construction bidding.
Interested parties: refer to the provisions of the pre-qualification documents for standard construction bidding.
Holding management relationship: refer to the provisions of standard construction bidding prequalification documents.
2. The second kind of problems: there is no price ceiling stipulated in the bidding documents.
Example: There is no maximum bid price limit in the bidding documents of a project bidding, and there is no calculation method of the maximum bid price limit. What should I do if all the bidders' quotations exceed the project budget? What should I do if some bidders offer more than the budget?
The bidding law is applicable to enterprises that use their own funds for bidding and purchasing. According to "Bidding Law" and relevant laws and regulations, the bid price exceeding the project budget is not the legal reason for nullifying the bid. Therefore, if all bidders' bids exceed the project budget, and there is no maximum price set in the bidding documents, there is no legal basis for rejecting all bids.
According to Article 64 of the Measures for Tendering and Bidding of Construction Projects (Order No.30 of Seven Ministries), the construction scale, construction standards, construction contents and contract price determined in the contract shall be controlled within the approved preliminary design and budgetary estimate documents. If it is really necessary to go beyond the prescribed scope, it shall be submitted to the original project examination and approval department for examination and approval before signing the winning contract. Where the review should be reported but not reported, the original project examination and approval department will not recognize it when adjusting the preliminary design and budget estimate. Usually, a tenderer cannot refuse to bid because of this.
3. The third kind of problem: the wholly-owned subsidiary of the tendering agency participates in the bidding.
Example: For a project that must be subject to tender according to law, both the wholly-owned subsidiary of the tendering agency and the shareholding company of the tendering agency participated in the tender, which is not stipulated in the tender documents. As a result, the subsidiaries of the tendering agency and the joint-stock companies of the tendering agency were rejected by the bid evaluation committee. Is this correct?
The answer is no. Article 15 of the Regulations on the Implementation of the Bidding Law stipulates: "The preparation of pre-qualification documents and bidding documents for projects that must be subject to bidding according to law shall use the standard texts formulated by the development and reform department of the State Council in conjunction with relevant administrative supervision departments." The Concise Bidding Document for Construction stipulates in the qualification requirements of bidders: "Bidders shall not hold or share the following information with the supervision, agent or bidding agency of this bidding project"
4. The fourth kind of problems: the restrictions on the bidding of agents in the procurement of goods.
The answer to the situation that the agent's bid is not accepted is as follows:
(1) The tender documents stipulate that the agent's bidding is not accepted; (2) The qualification conditions of the agent do not meet the requirements of the tender documents; (3) The manufacturer and its entrusted agent bid at the same time; (4) The manufacturer entrusts two or more agents to invest in the same brand and model of goods.
5. The fifth question: How to determine the relevant qualifications and performance of bidders in the case of merger or division?
explain
(1) Regardless of merger or division, the qualification of the enterprise must be recognized by the relevant examination and approval departments, and the qualification should be owned by the bidder and in its name. Before the merger or division of the company, the qualification under the company name shall be changed.
(2) If the enterprise is merged, the merged enterprise can inherit the performance of all parties before the merger.
(3) If the enterprise is divided, the bidder's performance needs to be re-evaluated after the division.
Transfer from: Building Economy and Management
Senior partner of Sichuan Hejun Law Firm, national registered lawyer, registered auctioneer, arbitrator, project cost manager (senior), corporate legal risk manager (senior), corporate legal adviser (senior), master of civil and commercial law, member of the 13th Sichuan Branch of China Democratic National Construction Association, member of Sichuan Social Law Society of China Democratic National Construction Association, director of Law Center of Southwestern University of Finance and Economics, member of china law society, and invited lawyer of Sichuan provincial government for letters and visits consultation.
Main business and expertise: perennial legal adviser, real estate and construction, finance, investment and financing, merger and reorganization, company law, economic contract, bankruptcy, auction, intellectual property rights and other civil and commercial litigation, non-litigation business and criminal defense.
Education: Southwest University of Political Science and Law, Sichuan University, Tsinghua University, Asian City University.
Lawyer's working experience: 200 1 started practicing as a lawyer.
Get honor:
Over the years, he has won many awards such as "Outstanding Performance Award" and "Special Contribution Award" issued by Sichuan Hejun Law Firm.
The main achievements of lawyers' practice:
Performance of the legal advisory unit (including previous services and current services)
Served as Chengdu Real Estate Administration Bureau, Sunshine Baiyi Real Estate (Chengdu) Co., Ltd., Philippine SM Group SM Real Estate Co., Ltd., SMDC (Hong Kong) Co., Ltd., Sichuan Jiahe Real Estate, Chengdu Wenjiang Xingcheng Real Estate, Chengdu Xuyong Xingcheng Real Estate, Sichuan Xingyuan Real Estate, Sichuan Oriental Mansion, Sichuan Sichuan Sichuan University Oriental Building Intelligent Technology, Sichuan Siwei Construction Services, Chengdu Benchmark Real Estate, Sichuan Shunxing Garden, Sichuan Lu Tong Construction, Chengdu Construction Engineering, Chengdu Anshi Industrial Group, Sichuan Shangde Dehui Industrial Group, Sichuan Merchants Association Investment Management, Sichuan Debiao Investment, Sichuan Jin Shu Investment, Chengdu Xuanding Investment Guarantee, Chengdu Yinzhilang Investment Management, Chengdu Lin Jin Pioneer Equity Investment Fund Management, Chengdu Xuanyong Investment, Chengdu Xinghua Chemical Industry, Chengdu Yongjiu, Chengdu Xibianliang Furniture, Chengdu Zidan Furniture, Chengdu Pengchenghong Advertising, Chengdu Zonghedao Advertising, Chengdu Zidan Furniture, Chengdu Lisan Printing, Chengdu. Chengdu Hongpai Yongji, Hong Shi, Chengdu Windmill Baby Education, Chengdu Li Hao Tiancheng, Chengdu Tonganda Fire Protection, Sichuan Ninth Five-Year Plan, Sichuan Renren Liquor E-commerce, Sichuan Yuanjiu Technology, Yijiumai Holdings, Chengdu Dezhicheng Medical Devices, Sichuan Ding Xin Medical Devices, Sichuan Tongchuang Vision Trade, Sichuan Suntech Alliance Investment, Sichuan Dehui Investment and Chengdu Zhenkun Trade. More than 50 enterprises, institutions, government departments, social organizations and individuals, such as Yinggu Technology, Lecong Technology, Chuanfa Guo Hong Investment, Chengdu Longtan Du Yu Industry, Sichuan Zhonglanhai Industry, Sichuan Geers Industry, Sichuan Tianxiaxing Real Estate Development, Chengdu Yingboxiang, Samsung R&F, Chengdu Yanting Chamber of Commerce, Chengdu Deyang Chamber of Commerce, Sichuan Shiren Clan Association/Shiren Enterprise Chamber of Commerce, Mianyang Shiren Clan Association/Shiren Enterprise Chamber of Commerce, etc.
Litigation and non-litigation performance
1. Agent Ms. Lin v. Sichuan Shandong Chaoyang Real Estate Development Co., Ltd. CaseNo.: Chengdu Intermediate People's Court of Sichuan Province (20 12) Chengminchuzi No. 123;
2. Successfully represented (including execution) Sichuan Dongfang Housing Development Co., Ltd. v. Pengzhou longxing temple for a dispute over a construction contract of more than 3 million yuan. CaseNo.: Chengdu Intermediate People's Court of Sichuan Province (2002) ChengminchuziNo.. 2 13. In this case, the agent applicant successfully added Pengzhou Buddhist Association as the executor, which is very important and typical for the final implementation;
3. Successfully represented Korean Hong Shi Planning Co., Ltd. v. Chengdu Shijie Advertising Co., Ltd. in other service contract disputes. : Chengdu Intermediate People's Court, Sichuan Province (2006) Chengminchuzi No.35, this case successfully added the defendant shareholder as the executor in the execution stage because of suspected false capital contribution, which is exemplary. This case was selected into the judicial case database of the Supreme People's Court;
4. Defend the influential crime of "Li is suspected of seeking trouble and causing trouble" in China (at the time of the incident, Jinjiang District police dispatched more than 60 police officers to control the scene. The facts of this case were published in Chengdu Business Daily 13 on May 27th, 2006, and were also reported by sctv and Chengdu TV). They communicated with the public prosecution agency, actively exchanged views, and filed a public prosecution on suspicion of obstructing official duties. Finally, Ali was given a lighter sentence of 7 months in prison: No.632, Jinjiang Criminal Zi Chu, People's Court of Jinjiang District, Chengdu (2006);
5. Successfully represented Chengdu Longtan Du Yu Industrial Co., Ltd. v. China Stone Industry Group Co., Ltd. (case number: (20 12) Cheng Hua Min Chu Zi No. 1379);
6. Providing agency services for construction contract disputes of Zhichao Technology (Suining) Co., Ltd. with an amount of more than 90 million yuan: (20 18) Chuan 0 1 Minchuzi No.612, (20 18) Chuan 0 1.
7. Participate in the first case of 20 1 1 Sichuan illegally absorbing public deposits (Meishan Gan Changyun and Sichuan Shangdong Chaoyang Real Estate Development Co., Ltd. illegally absorbing public deposits of RMB 1 100 million yuan);
8. Participate in the establishment of small loan companies and provide legal services;
9. Acting as an agent for a series of cases involving 70 million yuan of private lending disputes;
10, providing Fan with agency services for litigation cases of construction contract disputes with an amount of 65,438+1100 million yuan. Case number: Sichuan Higher People's Court (20 17) Chuanminchuzi. 124.
1 1. So far, he has successfully represented more than 600 litigation and non-litigation legal services.
Team service:
Set up a lawyer team studio and set up a lawyer team (members' professional expertise covers company law, labor law, intellectual property rights, risk compliance, corporate governance structure improvement, PE, VC, IPO, etc. ). Always adhere to the road of specialization, branding and team service. Can undertake major, difficult and complicated legal projects, and can provide timely, comprehensive, adequate, high-quality and efficient legal services for the parties.
Professional skills and litigation success rate (including mediation):
As a lawyer, he has a profound theoretical foundation in law and professional debating/defending skills. I am honest and trustworthy in entrusting clients, diligent and conscientious, and good at formulating the legal risk prevention mechanism of legal advisory units, with a view to risk compliance and "nip in the bud". Its professional skills, eloquent eloquence, elegant language, meticulous thinking, pragmatic litigation plan, diligent and dedicated attitude and team service are the guarantee for the parties to obtain quality services. Up to now, according to the statistics of files over the years, its litigation success rate (including mediation) has remained above 95%.