Bid-rigging: refers to the means and behavior of several bidders agreeing with each other to unanimously raise or lower the bidding, by restricting competition, crowding out other bidders, and making a certain stakeholder win the bid, so as to seek benefits (the scourge of the comprehensive scoring method).
Collusion: refers to the collusion between bidders or between bidders and tenderers, intermediaries, and bid evaluation experts to win the bid, which is rooted in the lack of integrity in the bidding field and even the whole society.
Article 25 of the Procurement Law** The parties to the procurement shall not collude with each other to harm the national interest, the public interest and the legitimate rights and interests of other parties. Article 32 bidders shall not collude with each other in bidding, shall not crowd out the fair competition of other bidders, and damage the legitimate rights and interests of tenderers or other bidders. Bidders shall not collude with the tenderer to bid and damage the national interest, social public interest or the legitimate rights and interests of others.
Article 74 of the Regulations Seven Situations of Malicious Collusion:
1) The first business directly or indirectly obtains the relevant information of other ** business from the purchaser or the first organization and modifies its bidding documents or response documents;
2) In accordance with the instructions of the purchaser or the first institution, the first business removes or modifies the bidding documents or response documents;
3) Negotiation between businessmen, technical solutions and other bidding documents or the substantive content of the response documents;
4) Belong to the same group, association, chamber of commerce and other members of the organization in accordance with the requirements of the organization to participate in the procurement activities;
5) It is agreed in advance that a specific ** merchant will win the bid and make a deal;
6) It is agreed between the merchants that some of the merchants will give up participating in the procurement activities or give up winning the bid or the transaction
7) Other collusive behaviors between the first business and the purchaser or the procurement organization, and between the first businessman, in order to seek a specific business to win the bid, make a deal, or exclude other business leaders.
The entities identified as colluding include the bid evaluation committee, regulatory authorities and judicial organs.
Article 37 of Order No. 87 (Article 40 of the Regulations of the Same Bid Law) In any of the following circumstances, it shall be deemed that the bidder has colluded in bidding, and its bid shall be invalid:
A) the bidding documents of different bidders are prepared by the same unit or individual;
2) Different bidders entrust the same unit or individual to handle bidding matters;
3) The project management members or contact persons specified in the bidding documents of different bidders are the same person;
4) The bidding documents of different bidders are abnormally consistent or the bidding ** is regularly different;
5) The bidding documents of different bidders are mixed with each other;
6) The bid deposits of different bidders are transferred from the accounts of the same unit or individual.
"Seeing" is a kind of legislative technique that equates phenomena with different objective external manifestations and is a legal fiction. The conclusion of "deemed" is not irreversible and irreproducible. In order to avoid errors in the application of law, the bid evaluation committee may give the bidder the opportunity to clarify and explain as appropriateAfter the bid evaluation, the bidder can seek the right remedy, and the administrative supervision department will make a determination.
It is deemed that "it must have a certain objective external performance, and it is not appropriate to set up a catch-all clause." If there is other evidence to prove that the bidder colluded in bidding, the bid evaluation committee, the administrative supervision department, the arbitration institution and the court may make a determination in accordance with the law, not limited to the circumstances listed.
Extra: After being deemed, who will determine?
These six situations may be found by the purchaser or the first institution when conducting the qualification review, as well as the bid evaluation experts when conducting the evaluation.
If it is found in the qualification review stage, the purchaser or the first institution shall report the relevant situation to the financial department, and the financial department shall investigate and present evidence, and give administrative penalties to the relevant first businessmen.
If it is discovered by the members of the bid evaluation committee during the evaluation, the members of the bid evaluation committee shall determine that the bid is invalid, but there is no penalty, which should be noted.
Article 39 of the Regulations on the Bidding Law prohibits bidders from colluding with each other in bidding.
In any of the following circumstances, it is a collusive bidding between bidders:
A) the bidders negotiate the substantive content of the bidding documents such as bidding;
2) The bidders agree on the winning bidder;
3) The bidders agree that some bidders give up the bid or win the bid;
4) Bidders who belong to the same group, association, chamber of commerce and other organizations shall bid in accordance with the requirements of the organization;
5) Other joint actions taken between bidders to seek to win the bid or exclude specific bidders.
Illustrate four points:One isIn addition to active collusion in bidding, bidders may also passively collude in bidding. For example, lending qualification certificates and seals to others for collusive bidding.
The second isBid-rigging is not only for formal bidders, but also for brokers (people who introduce people to buy and sell and earn commissions for them), as well as people who do not participate in bidding for the purpose of collusion.
The third isBid-rigging is not limited to specific bidding projects, and bidders may form partnerships or clubs with bid-rigging.
Four areCollusive bidding may occur in the bidding and pre-bidding preparation stage, and it may also occur in the bid opening, bid evaluation and even the announcement of the winning candidate.
Article 41 of the Regulations on the Bidding Law prohibits the tenderer from collusing with the bidder.
In any of the following circumstances, it belongs to the bidder and the bidder to collude in bidding:
A) the tenderer before the opening of the bid to open the bidding documents and disclose the relevant information to other bidders;
2) The tenderer directly or indirectly discloses the bottom of the bid, the members of the bid evaluation committee and other information to the bidder;
3) The tenderer expressly or implicitly indicates that the bidder lowers or raises the bid
4) The tenderer instructs the bidder to replace, modify the bidding documents;
E) the tenderer expressly or implicitly that the bidder provides convenience for a specific bidder to win the bid;
6) Other collusive behaviors taken by the tenderer and the bidder in order to seek a specific bidder to win the bid.
Illustrate three points:One isTo constitute collusion between the tenderer and the bidder, there needs to be subjective intent and.
Objective conduct, but not based on whether or not to win the bid is a constitutive element.
The second isBid-rigging is a common line.
Therefore, the circumstances listed in this article are mainly initiated by the tenderer, but also include the initiative of the bidder.
situation. The third isIn the case that the tenderer entrusts the first institution to organize the bidding activities, the various situations specified in this article may be manifested as collusion between the first institution and the bidder.
A school tenders for a student dormitory building construction project, and the school has a long-term relationship with a construction company.
This time, it is still hoped that the construction company will win the bid. The two sides reached a tacit understanding, and the school asked the construction company to lower the bid as much as possible to ensure that the bid was won, and the project price would be increased when the contract was signed.
Sure enough, when the bid was opened, it was found that this company was the lowest, and the judges finally recommended the company as the winning bidder.
The school issues a notice of winning the bid......Before signing the contract, the company increased the original bid by 10 under the pretext of material price increase, resulting in the increased project cost higher than all bidders at the time of bid opening, and signed a construction contract with the bidding school.
Lin has a construction company, which is relatively lacking in personnel, equipment, and construction technology. Shen is the CEO of a large construction company, which is well-known in the industry. Lin and Shen are high school classmates and have a close relationship. Once, a unit invited bids for the construction of an office building, and Lin's company could not meet the qualifications and company performance requirements of the bidder announced in the announcement.
So, Lin found Shen and asked Shen's company to bid. After winning the bid, Lin's company implemented the project, and Lin's company paid Shen's company a "thank you fee". As a result, Shen's company became the winning bidder for the project, but it was actually Lin's company that built the project. In the end, due to the construction capacity of Lin's company, the quality of the project was illegal and the construction period was delayed.
1.The technical parameters of the project have a strong demand tendency. The procurer may have informed a bidder of its intention to do so, and the company will "play the leading role". In the case that other competitors are unwilling to participate, this bidder will find a way to find a "supporting role" and make up more than 3 companies.
2.The "protagonist" actively cooperates, and the "supporting role" is cold. For example, the submission of qualification documents is not active, the product information provided is incomplete, the market is ambiguous, and the quality of the bidding documents produced is poor.
3.There will be more or less correlation between bidders. For example, there is a direct or indirect relationship between different bidders of the same project, or even for affiliated enterprises, querying the shareholders and personnel composition of different bidders and finding that there are the same shareholders, supervisors or quality managersBidding representatives represent different companies in bidding or post-bid matters in a short period of time.
4.The "supporting actors" do not pay attention to the judging process. For example, in the bidding process, only one sales representative is entrusted to participate, not accompanied by professional and technical personnel, deliberately avoiding the problems of the tenderer, not caring about the bidding results, not preparing alternative bidding plans, and even exposing themselves to "negative deviation".
5.The "protagonist" ** is above average, generally higher than the market average. Although the performance of the bidder is average, and there are no users, it is ridiculously high, which sets off the cost-effective "protagonist". Bid-rigging and collusion** are ridiculously low.
6.After the end of the bidding, there were few doubts, and complaints rarely appeared, because there was a private "appointment in advance". If the bidder unexpectedly wins the bid, there will be no reason to abandon the bid or give up the qualification to win the bid.
Case: Changing the scoring method to deal with low-price "bid-rigging".
A municipal procurement center organized a bidding for a network construction project with a budget of 4.7 million yuan. 4 ** bidders, all in line with the requirements of the bidding documents. Respectively**: 650,000 yuan for company A, 2.6 million yuan for company B, 3.19 million yuan for company C, and 3.83 million yuan for company D. Company A is obviously unconventional, the preliminary analysis is to seize the market, at the expense of ultra-low prices to win the bid The actual situation is that there are many negative deviations in the technical scheme of Company A, and it does not provide similar project performance, does not prepare on-site demonstrations, and answers questions are not answered.
However, Company A's bidding documents are very rigorous, and it cannot find any content that can determine that the bid is invalid, and it can deduct more points when evaluating the bid, but it cannot deny its bid.
The score setting is: *30, technical solutions 40, on-site demonstration and Q&A 5, ability and performance 13 quality and service 50. C got: D company 509。Other composite scores: Company A 291. Company B 5798, C company 606. D Company 4865 (C is 2 higher than B.)62 points, ** disadvantage should be controlled in this range)
Company C had the highest total score and became the first winning candidate with a higher score. Later, the secret of "bid-rigging" of Company A was discovered, and the financial department decided to suspend procurement activities and re-procure after revising and improving the bidding documents. A and C "have a weak heart to be a thief" and have no questions and complaints.
The role played by Company A is very mysterious: from the point of view of **, it wants to win the bid at a low price;Aside from ** and not. Please see the results of the screening
If Company A does not participate in the bidding, the winning bidder will be Company B:
If the ** of company A is a relatively normal 2 million yuan, the winning bid is also company B:
If Company A is 1 million yuan, the winning bid will be Company C, but it is not much ahead of Company B.
If Company A is 100,000 yuan, the comprehensive score of Company C is only 0 higher21 points to win the bid. Judging from the table on the left, when Company A's ** is low to a certain extent, the ** score gap of B, C, and D can be controlled at 0Within 3 minutes, that's the secret.
It can be seen that as long as Company A** is less than 1 million yuan, Company C does not have to exchange low **.
* high score, and let the **lower company B lose** advantage;
That is to say, Company A shielded Company B as a competitor for Company C: Company B lacked advantages in technology and performance, and wanted to compete for the opportunity to win the bid with a lower **. However, Company C took advantage of its dominant position in the industry and invited Company A to rig bids, so that Company A could shield competitors with ultra-low ** and make its ** advantage useless.
Root cause: The Ministry of Finance's "On Strengthening the Procurement of Goods and Services".
There are loopholes in the calculation formula of ** points stipulated in the notice of review management (Cai Ku 2007 No. 2 Order (Order No. 87), and it is difficult to solve two problems in actual operation: one is that when the minimum ** is zero, the zero ** gets full points, and the other ** is zero no matter how much it is, which is obviously unreasonable;Second, when the lowest is ultra-low, the effect will be completely lost ......
Measures: Modify the formula for calculating the score, take the maximum limit price (or budget price) as zero points, and take the lowest score (full score) as the highest score, establish a standard one-time function to calculate the score of each quotient, and patch the loopholes in the original formula.
With the project budget of 4.7 million yuan as the maximum price, the difference between the best points of companies B, C and D is relatively normal.
If Company A is 100,000 yuan, the gap between Company B, C and Company D has changed, but the magnitude is not large, and the role of the lowest price is significantly reduced.
If Company A's ** is 0
Comparing these ** finds: the ** scoring formula is designed as a standard one-time function, which can completely lose the shielding effect of ultra-low price and effectively deal with the problem of low ** "bid-rigging".
A stage lighting equipment procurement project, the budget control price is 1.05 million yuan, and the comprehensive scoring method is adopted, with 30 points, 40 points for technology, and 30 points for business. Among them, there is an inconspicuous score setting: 2 points are awarded if the built-in control software of the console has independent intellectual property rights.
A total of four companies A, B, C, and D participated in the bidding, with 1 million yuan, 900,000 yuan, 400,000 yuan and 880,000 yuan respectively. The result is that the highest company A won the bid, and it happened to be the 2 points that played a decisive role, and the collusion behavior of "cooperating" the 2 points was also very "smart".
1.Under the current legal system, strengthening the construction of the system and plugging the loopholes at the source is the fundamental policy
2.Give full play to the role of the competent department of the industry and the post-bid supervision of the owner's unit, and strictly investigate the behavior of subcontracting, illegal subcontracting and "low-price bidding and settlement".
3.Research and development of electronic auxiliary bid evaluation system to improve the efficiency of bid evaluation, save bidding costs, reduce human factors, and enhance objectivity and fairness. Through electronic technical means, the similarity of the bidding documents was analyzed, and it was found that the bidding collusion behavior was found to be the same
4.Strengthen the establishment of a creditworthiness system, and handle it in accordance with law. On the basis of the publicity of the results, in accordance with the relevant provisions of the illegal enterprises to make a record of bad behavior, and the integrity of the enterprise for qualification review and bid evaluation;Enterprises with serious violations will be included in the "blacklist", and a market system of "one move is untrustworthy and subject to restrictions everywhere".
Article 55 of Decree No. 87: When bidding for fixed procurement with fixed **, ** is no longer an evaluation.
Judging factors, bidders do not need to be successful, and whether they win the bid or not has nothing to do with them. This is one of the measures taken by Order 87 to deal with malicious low-price bidding and bid-rigging collusion resulting in the first bid. At this time, the bidders compete for quality and service, rather than the "fixed" bidding of the project, and carry out micro-innovation: the project is fixed, and the winning bidder is randomly selected from the qualified biddersOrder No. 87 stipulates that the fixed **bidding** is not used as a factor in the evaluation, and other items must be evaluated, such as technology, quality and service, etc., and the winning candidates will be produced according to the evaluation situation.
1.Guizhou Exchange Center uses big data to prevent "bid-rigging and collusion".
A unit with a budget of 52 million yuan for the procurement project of facilities and equipment, in September 2016, the trading center was open for bidding, and at 09:30 on November 13, it was found through the electronic system that the IP address of the three companies was the same. After investigation and verification, the three companies admitted to entrusting the same person to handle the registration matters, and the administrative supervision department suspected of bid-rigging and collusion seriously investigated and punished the three bidders who were suspected of bid-rigging and collusion, and were fined 1920,000 yuan, and included in the list of bad behavior records, banned from participating in procurement activities for one year.
In April 2015, a unit budget of more than 30 million yuan of office building decoration construction bidding project public bidding, through the use of big data comparison and verification, it was determined that the six enterprises participating in the bidding generated electronic bidding computer hardware serial numbers are exactly the same, indicating that there is collusion in bidding, the relevant administrative supervision departments fined these six enterprises 150,000 yuan.
IP address refers to the Internet Protocol address, which is a unified address format provided by the IP protocol, which is divided into private IP address and public IP address. In most cases, the bidder buys a broadband account from the operator for dial-up Internet access, and the IP address generated is actually the operator's own intranet IP address, and the IP address of different operator servers may be the final and unique public IP address. The general electronic bidding platform cannot capture the most real public IP of the bidding unit due to the different protocols of the public IP address and the different degree of openness of the agreement, and it is impossible to have a huge and accurate IP address database like the public security network police system. Therefore, in practice, the use of the same IP address to deal with the "situation of deemed bid-rigging and collusion" often leads to misjudgment and is prone to complaints.
The MAC address refers to the media access control (MEC) address, which is the network card address produced by the manufacturer and is unique to each device. The MAC address is theoretically unchanged, because it is burned on the network card by the manufacturer when it leaves the factory, but it can be used to virtualize and forge fake MAC addresses in the network. For example, a MAC address is like an ID card, and it's like that everywhereThe IP address is like a residence permit, and the information will change if you change the place.
Therefore, at present, there are many cases where the MAC address is the same as "regarded as bid-rigging and collusion".
"Stubborn diseases" in bidding and procurement activities
For the purpose of high quality and low price, but have to face the result of "high price and high quality";
With openness, fairness, impartiality and integrity as the basic principles, we have to face the "nine out of ten."
strings";
The essence of the buyer's exhaustive efforts to select the best of the seller by expanding the competition has to go through.
It is often faced with "death sentences" of "rejected bids", "invalid bids" and "scrapped bids".
As an effective way to allocate resources in the market, it has to face the "expulsion of bad money."
coin", the fact of inefficiency;
As one of the tools of anti-corruption, it has to face the more anti-corruption, the more corrupt it becomes, and even become "corrupt".
defeat escort".
The tenderer said: "This project is mine, and I am in charge of my territory." ”
The tenderer is relatively strong in bidding and procurement activities.
This was judged by the Panel of Experts, and I should not take that responsibility. ”
The expert said: "I evaluated the project, and I have the final say." ”
Specialists have room to maneuver over the course of the project.
Give me 500 yuan for the carriage and horse expenses for half a day, why should I be responsible for the 100 million yuan project?”
The bidder said: "I bid on the project, so I have the absolute right to decide." ”
Five of the six bidders may be affiliated enterprises, and there is a possibility of bid-rigging.
I bid according to the bidding documents, how can I prove that 5 of them are my affiliates?”
** The agency said: "I set up the stage, formulated the rules of the game, and prepared the bidding documents. ”
There is also a great opportunity for fraud and black-box operation of the bidding agency.
I just set the rules of the game, and it's the result of the experts."
Lessons from overseas: Carruilian, the UK's second-largest construction company, went bankrupt
The UK's second-largest construction company, Calilink, suddenly went bankrupt in January 2018, with 450 contracts before the accident, and its business spanned education, healthcare, politics and law, defense, transportation and other ministries, with a turnover of 6 billion pounds in 2016.
One of the three main reasons for the bankruptcy of Calilink is "vicious bidding at low prices, competing for business across banks" - the British legal system is sound, the social integrity is high, and the management methods are advanced, and it cannot be used after winning the bid at a low price.
With inferior materials and the construction of "tofu slag" projects, there is no way to achieve ** settlement through contract changes, and the profit margin is low, leading to bankruptcy.
Bid-rigging and collusion