Introduction
Based on the requirements of state-owned assets supervision, state-owned enterprises shoulder the important mission of maintaining and increasing the value of state-owned assets, and the bidding business runs through the whole process of daily operation of state-owned enterprises, and is also one of the areas where the risk of state-owned enterprises violating regulations and employees performing their duties is high. From the perspective of the external norms that state-owned enterprises should comply with in the bidding business, this paper expounds the types and manifestations of the main compliance risks of state-owned enterprises in bidding and bidding, and analyzes some types of bidding compliance risk events in combination with practical cases, aiming to enable readers to have an overall understanding and understanding of the identification of bidding compliance risks in state-owned enterprises.
one
State-owned enterprises bidding compliance obligations
The ** compliance obligation refers to the national laws and regulations, regulatory provisions, industry guidelines, international treaties and rules, as well as the articles of association and relevant rules and regulations that the enterprise shall abide by. In practice, state-owned enterprises should comprehensively review and sort out the above-mentioned dimensions from both internal and external perspectives, determine their own compliance obligations, and establish a database of relevant compliance obligations.
From the perspective of content and relevance, the special compliance obligations are usually divided into normative documents such as universal laws and regulations and special legal provisions specifically for the bidding field, that is, the difference between common law and special law. Judging from the special legal provisions on bidding and bidding, the external compliance obligations of state-owned enterprises in bidding and bidding are mainly divided by the level of effectiveness, and the external compliance obligations of state-owned enterprises in bidding mainly include the following normative documents:
(1) Laws and regulations:Tendering and Bidding Law of the People's Republic of China and its implementing regulations.
The special provisions at the legal level are mainly the "Tendering and Bidding Law of the People's Republic of China", which regulates all bidding activities in China and is the "Constitution" in the field of bidding, and the formulation and implementation of all normative documents related to bidding should comply with the provisions of the "Tendering and Bidding Law", and the supporting administrative regulations are the "Regulations for the Implementation of the Tendering and Bidding Law of the People's Republic of China".
It should be noted that the "Procurement Law of the People's Republic of China" and its implementation regulations and other procurement norms mainly regulate the use of financial funds by state organs, institutions and organizations at all levels to purchase goods, projects and services within the scope of the regulations. State-owned enterprises do not belong to the above-mentioned organizations, so state-owned enterprises as purchasers do not apply to the procurement norms, but state-owned enterprises inevitably participate in procurement as a merchant in their operations, therefore, the relevant norms in the Procurement Law also belong to the bidding compliance obligations, which will not be discussed in this article.
(2) Departmental rules
The rules of the bidding and bidding departments can basically be divided into general specifications and special industry specifications that distinguish between industries and project types. The former is mainly formulated by the state alone or in conjunction with other relevant departments, and is submitted for approval and implementation, which does not distinguish between the types of projects in specific industries. Mainly: "must be tendered engineering project provisions", "must be tendered infrastructure and public utilities project scope provisions", "tender announcement and public information release management measures" and so on, the first two documents are mainly based on the "bidding and bidding law" must be tendered project type and scale standards to make more specific provisions, the latter document is mainly to the bidding procedures in the announcement and publicity information release to make a unified standard. In addition, there are other general norms such as the Measures for Electronic Bidding and Bidding.
The special regulations of the industry mainly include: the Ministry of Housing and Urban-Rural Development's "Administrative Measures for Bidding and Bidding for Housing Construction and Municipal Infrastructure Engineering Construction", "Administrative Measures for Bidding and Bidding for Construction Engineering Design", "Administrative Measures for Bidding and Bidding for Water Transport Engineering Construction Projects" of the Ministry of Transport, "Administrative Measures for Bidding and Bidding for Railway Engineering Construction Projects", "Administrative Measures for Bidding and Bidding for Communication Engineering Construction Projects" of the Ministry of Industry and Information Technology, "Implementation Measures for International Bidding and Bidding for Mechanical and Electrical Products (Trial)" of the Ministry of Commerce, and the Civil Aviation Administration of China Administrative Measures for Bidding and Bidding of Civil Aviation Professional Engineering Construction Projects", etc., mainly for the special specifications formulated and implemented by various departments on the basis of general norms such as the Bidding and Bidding Law and its implementation regulations, for the bidding business that belongs to their own industry and business management scope.
(C) other normative documents
Other normative documents mainly refer to the normative documents issued by various departments to regulate bidding and bidding behaviors in addition to departmental rules, mainly including: the "Notice on Further Improving the Implementation of the Regulations on the Scope of Engineering Projects That Must Be Tendered and the Scope of Infrastructure and Public Utilities Projects That Must Be Tendered" issued by the General Office of the People's Republic of China in October 2020 (Development and Reform Office Regulations No. 2020 No. 770), which mainly gives a more accurate explanation of the scope and scale standards of the projects that must be tendered in the two documents. It is conducive to a more accurate determination of whether it is a project that must be tendered in practice. In July 2022, the "Several Opinions on Strictly Implementing the Bidding and Bidding Laws and Regulations to Further Regulate the Behavior of Bidding and Bidding Subjects" (Development and Reform Regulations No. 1117) and so on, various localities have promulgated local regulations, rules and other local normative documents to regulate bidding and bidding behavior within the geographical scope, such as the provincial people's first has formulated measures for the implementation of the bidding and bidding law, etc. The following diagram shows the external compliance obligation system for bidding and bidding under the framework of the domestic legal system
In practice, when sorting out the compliance obligations of bidding and bidding, state-owned enterprises can carry out the identification of compliance obligations under domestic laws layer by layer according to the scope of their industry and main business and the level of effectiveness of normative documents, and carry out all-round coverage of general norms, industry-related special norms and local norms under the framework of the Tendering and Bidding Law and its implementing regulations.
II. II. II
The main types of bidding compliance risks of state-owned enterprises
and its manifestations
After completing the combing of the bidding compliance obligations of state-owned enterprises, the second step is to carry out compliance risk identification, that is, to summarize the main types of bidding compliance risks of enterprises and analyze their manifestations. The main compliance risks in the field of tendering and bidding include the following categories:
(A) should be tendered but not tendered
Failure to bid is to specify that the project that should be tendered is avoided by dividing it into parts or other means, or in some projects where the criteria for judging ambiguous criteria are not clear, the project that must be tendered is regarded as a project that can not be tendered and is not recruited. Regardless of the reason, regardless of whether there is subjective intent, it is a situation where the bidding should be done but the bidding is not tendered, which is one of the high-risk risks in the field of bidding compliance. The projects that should be tendered mainly refer to the projects that must be tendered according to laws and regulations.
In accordance with the provisions of the "Tendering and Bidding Law" and its implementing regulations, the "Provisions on the Scope of Infrastructure and Public Utilities Projects that Must Be Tendered", and the "Notice on Further Improving the Implementation of the Regulations on the Scope of Engineering Projects that Must Be Tendered and the Provisions on the Scope of Infrastructure and Public Utilities Projects That Must Be Tendered" and other documents, the scope of projects that must be tendered and the judgment criteria are summarized in the following charts:
Combined with the circumstances listed in Article 1(2) of NDRC No. 1117 and relevant cases, the main manifestations of bidding but not bidding in practice are summarized into the following three categories:
1) Evading bidding by dismantling the contract, dividing the whole into parts, recruiting small and giving away large, setting unreasonable provisional valuations, or fabricating projects that can not be tendered through fictitious confidential projects, emergency projects or other fraudulent means;
2) Through collective decision-making, meeting minutes, letter replies, memoranda, etc., the projects that must be tendered according to law will be converted to non-bidding methods such as negotiation, inquiry, bidding or direct procurement.
3) Other circumstances that should be tendered but not tendered: in other circumstances other than the above-mentioned circumstances, such as due to the failure of the bid, invalid bidding, etc., should be re-tendered and not re-tendered, should be open to bidding and invite bidding, that is, do not meet the conditions for inviting bidding and use the invitation to bid without authorization.
(2) Collusive bidding and related risks
Collusive bidding mainly includes collusion between bidders and collusion between tenderers and bidders, which are essentially behaviors that harm fair competition, and are also one of the high-incidence types of compliance risks in the bidding field of state-owned enterprises. The tendering and bidding system itself is established for fair competition, and if the participants collude with each other to carry out acts of unfair competition, it will inevitably damage the order of fair competition and make the tendering and bidding system useless. Article 40 of the Regulations for the Implementation of the Tendering and Bidding Law stipulates six situations that are deemed to be bidders colluding in bidding, Article 41 stipulates six kinds of collusion between tenderers and bidders, and there are more specific inductive provisions in the normative documents of various places.
1.Bid-rigging among bidders
From the perspective of practical cases, the common situations of collusive bidding between bidders determined by law enforcement agencies mainly include the consistency of bidding documents, the same bidder, and the bidding of affiliated companies, among which the consistency of bidding documents and other types of problems are more frequent.
The behavior of "copying homework" in the joint preparation of bidding documents is usually manifested in abnormal consistency in bidding documents, such as the part of the bidding documents that does not require the format, and the format or content of the bidding documents is exactly the same. For example, the Administrative Penalty Decision No. 11 of 2023 of the Housing and Urban-Rural Development Bureau of Changzhou City, Jiangsu Province, determined that "the bid evaluation committee found that there were consistency errors in four aspects of the bidding documents of the parties and Company A and Company B, and the bidding documents of the parties were judged to be invalid", "According to the provisions of Article 18 (5) of the Administrative Measures for the Bidding and Bidding of State-owned Funds Investment Engineering Construction Projects in Jiangsu Province, there are more than two consistency errors in the bidding documents prepared by the three bidders, shall be regarded as collusive bidding".
The implementation of electronic bidding, so that the submitted electronic version of the document can be queried to the document editor, the IP address of the document upload, etc., if the electronic version of the submitted bidding documents shows the same upload address, prepared by the same person, and the bidding documents are made of the same machine code, it will be identified as collusive bidding. For example, in the Administrative Penalty Decision No. 39 of 2019, Zhejiang Province, it is determined that the bidding documents submitted by Company C and the project bidder Company D are prepared within Company C, and the bidding documents of the two units are made by the same machine code, which is the bidder's collusive bidding behavior as stipulated in Article 40, Paragraph 1 of the Regulations for the Implementation of the Bidding and Bidding Law.
Guangdong Zhongshan City, Guangdong Province, Yuezhong Nan Lang Zong Zhi Zi No. 2023 057, determined that Company E and Company F "the economic bidding documents, bill of quantities file MAC address, bill of quantities file hard disk serial number, bill of quantities file software dog number are exactly the same, there are different bidders' bidding documents compiled, packaged, encrypted and uploaded by the same electronic device, which is an illegal act of collusive bidding".
2.Collusive bidding between tenderers and bidders
The collusion between the tenderer and the bidder usually involves collusion between the bidders, especially the false bidding behaviors such as the "internal determination" between the tenderer and the bidder, which usually requires the cooperation between the bidders.
Engaging in false bidding such as "open and covert bidding" and "construction first and then recruitment" on the grounds of strategic cooperation and investment promotion, as well as tailor-made bidding conditions for internal enterprises, are all illegal acts that seriously disrupt the market order of fair competition.
The collusion between the tenderer and the bidder usually reflects the characteristics of comprehensive compliance risks, which often coincide with the risk of commercial bribery and the risk of leakage of trade secrets, which are the key areas of compliance risk prevention in the bidding and bidding of state-owned enterprises.
(3) The bidder deceives and deceives to win the bid
There are generally two situations in which bidders deceive and deceive to win the bid, one is to lease the qualification or use the qualification of leasing and lending, that is, what we usually call the affiliation behavior, which is a frequent and high-risk type in the field of engineering constructionThe second is to provide false supporting materials, such as forging or altering false qualifications, qualification certificates, licenses, performance certificates and other supporting materials required for bidding. It should be noted that, based on the definition of "fraud", the concealment of information not being truthful also falls into this situation.
For example, the Beijing Municipal Commission of Housing and Urban-Rural Development Jing Jian Fa Zhi (City) Zi [2022] No. 010131 Administrative Penalty Decision determined that Company G did not truthfully fill in other credit commitment requirements in the prequalification documents of the prequalification documents of the prequalification documents of the project in order to meet the prequalification requirements of the weak current engineering construction bidding project of the National Science and Technology Communication Center project, which must be tendered in accordance with the law. The concealment of the (2019) Su 0507 Min Chu No. 5123 judgment by the Xiangcheng District People's Court of Suzhou City, Jiangsu Province on November 13, 2019 and the defeat of the construction contract dispute case between it and Company H in the "Suzhou Municipal Public Security Bureau Emergency Command Center Weak Current System Project" belongs to the problem of providing false credit status in the bidding process, which has constituted an act of deception in the bidding activities to win the bid.
(4) The tenderer obstructs fair competition
The risk of the tenderer hindering fair competition mainly refers to the situation that the tenderer restricts or excludes potential bidders with unreasonable conditions, discriminates against potential bidders, compels bidders to form a consortium to bid together, or restricts competition between bidders.
The second paragraph of Article 18 of the Tendering and Bidding Law stipulates that "the tenderer shall not restrict or exclude potential bidders with unreasonable conditions, and shall not discriminate against potential bidders". Article 32 of the Regulations for the Implementation of the Tendering and Bidding Law lists seven situations in which potential bidders are restricted or excluded by unreasonable conditions, and Article 54 of the Measures for Electronic Tendering and Bidding stipulates that "refusal or restriction of the public and market entities to register free of charge and obtain bidding and bidding information that must be disclosed in accordance with the law" and other five situations that are deemed to restrict or exclude potential bidders, and other normative documents also have similar provisions.
The Supreme People's Court (2020) Supreme Law Min Zhong No. 115 H Management Committee ......Item 14 of the third part of the bidding announcement 'qualifications' requires that if the bidder wins the bid for the project, it shall issue a letter of commitment, promising to invest in the construction of prefabricated building production projects in the county at the same time, and clearly state that if the commitment is not fully fulfilled, the project will be voluntarily and unconditionally withdrawn from the project, the signed project and other related contracts will be invalid, the losses of the tenderer shall be compensated, and all the inputs of the bidder shall not be compensated. The setting of the above-mentioned qualification conditions is not suitable for the actual needs of the project involved in the case, and has nothing to do with the performance of the contract in this case, and is an act of restricting and excluding potential bidders with unreasonable conditions." In practice, state-owned enterprises, as tenderers, need to strictly examine whether there are unreasonable restrictions or exclusions of potential bidders when setting bidding qualification conditions and scoring methods, so as to prevent such compliance risks.
(5) Other risks of violating the bidding procedures
It mainly refers to the risk caused by the tenderer or bidder's violation of the procedural provisions of tendering and bidding in addition to the above four circumstances in the process of tendering and bidding. In terms of tenderers, there are mainly such as: the approval procedures should be performed and not performed, the bidding method is improper, the use of public bidding to invite bidding, before determining the winning bidder, the tenderer and the bidder negotiate with the bidder on the substantive content of the bidding **, the bidding plan and other substantive content, accept the bidding documents that should be rejected, and the project that must be tendered does not issue a notice of winning the bid without a legitimate reason, and does not enter into a contract with the winning bidder without a legitimate reason, etc.
In terms of bidders, there are mainly as follows: the bidder does not submit the bidding documents as required, such as the bidding documents do not respond to the substantive requirements and conditions of the bidding documents, resulting in the risk of being rejected by the bidder, the winning bidder does not enter into a contract with the tenderer without a legitimate reason, does not submit a performance bond in accordance with the requirements of the bidding documents, the winning bidder transfers or dismemberes the winning project to others, and subcontracts part of the main body and key work of the winning project to others, etc.
The following chart comprehensively shows the key compliance points of the tendering and bidding process and the key compliance points at each stage.
Three
Consequences of SOE bidding compliance risk events
(1) Administrative sanctions
Violation of the provisions of normative documents in the field of bidding and bidding, and the occurrence of compliance risk events may face administrative penalties and other administrative sanctions. Administrative sanctions in the field of bidding and bidding mainly include: warnings, corrections, fines, confiscation of illegal gains, disqualification, revocation of business licenses, punishment of the person in charge directly responsible for the unit and other directly responsible personnel in accordance with the law, and invalid winning bids. For example, Article 49 of the Tendering and Bidding Law stipulates that if a project that must be tendered is not tendered, or if the bidding is avoided, it shall be ordered to make corrections within a time limit, and a fine of not less than 5/10000 of the contract amount of the project may be imposed; For projects that use all or part of state-owned funds, the implementation of the project or the allocation of funds may be suspended; The directly responsible managers and other directly responsible personnel of the unit are to be given sanctions in accordance with law.
The first four main types of bidding and bidding risks listed in this article all involve administrative sanctions, and there is a risk that the above-mentioned corresponding situations may face administrative penalties.
(2) Criminal offenses
Where the circumstances of the violation of laws related to bidding and bidding are serious, it constitutes a criminal offense. The criminal acts that may be involved in the illegal acts of bidding and bidding usually include the crime of collusion in bidding, the crime of bribery, the crime of contract fraud, the crime of infringing on trade secrets, etc. As mentioned above, the circumstances of collusive bidding are serious, and the crimes involved in criminal offenses often include the crime of collusive bidding, bribery, bribery, bribery, bribery to non-state functionaries, and non-state functionaries.
(3) Civil legal consequences
The assumption of civil legal liability is usually not the object of corporate compliance management, but it is necessary to make a general understanding because the legal consequences of corporate compliance are often accompanied by corresponding civil legal consequences and are part of the comprehensive risk management of enterprises. Violations of normative documents related to bidding and bidding usually give rise to contract-related liabilities or consequences, such as liability related to the invalidity of the contract, liability for negligence in contracting caused by failure to conclude the contract, liability for breach of contract caused by non-performance of the requirements of the bidding documents after winning the bid, and liability for damages caused by unfair competition damages caused by acts that impede fair competition such as seeking to win the bid by means of unfair competition.
Article**: Tahota lawyer. Author: Liu Ailing.
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