Case: A provincial unit to build a local area network, procurement budget of 4.5 million yuan. The project bidding documents indicate the qualifications of qualified bidders must meet: registered capital of more than 20 million yuan, there have been more than three provincial success stories of domestic suppliers, and at the same time contains: there has been the system of more than one provincial success stories are preferred. As a result of the bidding, a foreign supplier with a price of only 3.98 million yuan and the best technical service terms and conditions failed to win the bid, while the winning bidder was a local supplier with a price of 4.48 million yuan (the supplier did have three successful cases, including the successful development of the system's local area network (LAN) in one of the provinces).
Jurisprudence comment: the purchaser may, according to the special requirements of the procurement project, the specific conditions of the supplier, but shall not be unreasonable conditions of differential or discriminatory treatment of suppliers, and shall not be excluded by any means other suppliers to participate in the competition. In the bidding announcement or qualification examination announcement, if unreasonable conditions are used to restrict or exclude the rights of other potential bidders to compete fairly, this is tantamount to restricting the maximization of competition, which may sometimes increase the cost of procurement. Tailor-made clothes are reasonable and sensible; tailor-made tenders are illegal and unlawful.
Case 2: secretly accompany the bid
Case: a college computer room project renovation for bidding. After the release of the tender notice, a construction company and the school infrastructure department in charge of private transactions, and finally decided to give this project to the construction company. In order to reduce competition, by the construction company invited five private good construction companies to bid, and beforehand will be winning the intention to reveal to the five bidding enterprises, suggesting that the five construction companies bidding documents produced sloppy. Formal opening of the bidding, the five construction companies invited to bid with a construction company, but due to the invitation of the five construction companies are either too high, or service is too poor, the results of the evaluation of the bidding, a construction company for the first after the selection of the winning bidder.
Juridical analysis: this is a typical accompanying bidding behavior. This kind of malicious collusion by suppliers and purchasers and bribes to the purchaser or provide undue benefits to win the bid, is very bad, but also the most difficult to control government procurement, it has become a major malignant tumor of government procurement activities!
Case 3: irregular bidding
Case: a year on December 13, a provincial unit from the central government for a special fund, ready to invite bidding on the next batch of official vehicles, the higher-ups explicitly require that the funds must be out of the account at the end of the year. Considering the timeliness of the use of funds, the leadership of the study to determine the procurement of Santana 2000 sedan, and on December 18 issued an invitation to tender documents. 31 December, the unit invited three agents of the same brand to participate in the bidding, the evaluation committee selected by the bidding agent A won the bid. Subsequently, the two sides signed a government procurement contract, and all the procurement funds were disbursed at once on the same day.
Juridical analysis: the purchaser due to the special nature of the project, and can only be purchased from a limited range of suppliers, approved by the financial sector can be used to invite bidding. The reason why the unit does so, seems to be a good reason, but it is really an illegal procurement behavior. Can not be because the superiors on the use of funds have special requirements, must be out of the accounts before the end of the year and ignore the waiting period shall not be less than 20 days of the legal provisions; in the absence of approval of the financial sector, the unauthorized use of the invitational bidding method has no legal basis; unit leaders to determine the procurement of Santana 2000 sedan as an official car, the reasons are not enough, belonging to the fixed-price purchases, intentionally or unintentionally excluded other similar Brand car competition, and the same brand of three agents of competition is not equal to the competition of three suppliers of different brands; belongs to the centralized government procurement catalog within the scope of the ordinary official car, should be entrusted to the centralized purchasing agency procurement, and can not be unauthorized use of centralized departmental procurement in the form of self-processing. This phenomenon of departmental fixed-brand procurement and avoidance of public bidding is relatively common and may have a negative impact on curbing corruption.
Case 4: low bid
Case: a municipal hospital bidding to purchase a number of imported equipment. As the hospital in the past before the implementation of government procurement and a medical equipment company has a long-term business dealings, so the bidding still hope that the medical equipment company won the bid. So the two sides reached a tacit understanding, such as the opening of the bidding, the hospital asked the company to try to lower the bidding price to ensure that the winning bid, in the signing of the contract and then raise the purchase price. Sure enough in the bid opening, the company's offer for the lowest price, the evaluation committee recommended the company as the winning candidate. Before signing the contract, the hospital allowed the original bidding price to be increased by 10%, as additional after-sales service content with the medical equipment company signed a procurement contract. As a result, the increased contract price was much higher than that offered by all other bidders.
Juridical analysis: the bidders and bidders collude with each other to win the contract at a low price at a high price, seriously affecting the fairness and impartiality of the government procurement activities, damaging the legitimate interests of the majority of potential bidders, resulting in a huge loss of procurement funds, disrupting the normal order of competition in the market.
Case 5: false bidding
Case: a provincial official car maintenance point project bidding. Bidding documents on the "qualified bidders" made the following provisions: in the city (excluding suburbs) has a fixed place of 1200 square meters, the provincial traffic control department approved the qualification of automobile maintenance, maintenance turnover in the previous year more than 2 million yuan of independent legal person enterprise. Bidding results, a second-class automobile repair enterprises with high scores were recommended as the first successful candidate. According to the provisions of the tender documents, the procurement center specially organized the purchaser and the relevant expert representatives to the field for inspection. The inspection team's inspection report is written in this way: the field measurement, the enterprise has a fixed repair plant 800 square meters, and the bidding documents said to have a repair plant 1752 square meters difference of 952 square meters, and the bidding documents stipulated in the standard of 1200 square meters compared to the less than 400 square meters; by the financial statements of the previous year's review of the annual maintenance of the annual turnover of the enterprise is 780,000 yuan, and the bidding documents said the difference of 3.5 million yuan. The annual maintenance turnover of the enterprise is 780,000 yuan, which is 2.72 million yuan less than the 3.5 million yuan claimed in the bidding document, and more than 1.22 million yuan less than the 2 million yuan standard stipulated in the bidding document. In view of the above facts, it is recommended that the project's bidding leadership team disqualify its bid.
Jurisprudence: suppliers to participate in the bidding, bidding, it is natural, but there is a premise is that, must be reasonable motives, appropriate behavior to seek to maximize their own interests. Supplier if the dishonest behavior false bidding, one will give their own image of black, branded "bad record"; the second will cause harm to others, disrupting the order of fair competition.
Case 6: tendency to evaluate
Case: a 12 million yuan of system integration project bidding. The purchaser published an announcement in the statutory media, and seven local and foreign enterprises of comparable strength went to bid. Considering the special nature of this project, the purchaser wants local enterprises to win the bid to ensure that the hardware after-sales service and software upgrade and maintenance on call. Thus, a five-member bid evaluation committee was set up, of which three were representatives of the purchaser and the remaining two were technical and economic experts. Through normal bid opening and evaluation procedures, a local company was finally identified as the winning candidate.
Legal analysis: this tender seems fair, in fact, the bidding unit in the selection of jury tricks. According to the relevant provisions of the expert must be built from the regulatory authorities in a random manner to extract the expert database, the procurement amount of more than 3 million yuan or more of the project, its bid evaluation committee should be more than 7 people in the singular, and technical, economic experts shall not be less than two thirds. The project formed a five-member bid evaluation committee in the purchaser's representative accounted for three people, there is a suspicion of controlling the results of bid evaluation.
Case 7: intentional bidding
Case: the construction of a unit of 20-storey office building needs to purchase five elevators, the leadership requirements must be commissioned before October 1, run out. August 12 to September 3, the infrastructure office of the person in charge of the "prudent", with delaying tactics have been to the provinces five times to carry out a "market survey". "market investigation", and contact with an imported brand agents to negotiate, several times implied to communicate with the relevant agents. 10 September, due to only two suppliers bidding, the public tender to abortive processing. According to the regulations, the 5 elevator procurement budget has reached the public tender limit standard, but due to time relations, and ultimately can only take the non-tendering procurement. 17 September, through competitive negotiation, the brand agent with the best price-performance ratio in one fell swoop, September 29, the elevator installation and commissioning success.
Juridical analysis: the case of the "classic", is the purchaser to "market research" strategy to delay, "implied communication" method to avoid bidding. On the face of it, the reason for the bidding is open tender less than three bidders, and ultimately because of the procurement time is tight and had to use closed tendering. In fact, the purchaser is the use of the aborted bidding "reasonable and legitimate" factors, to achieve a fixed brand, the real intention of the manufacturer.
Case 8: the inspection of the bidding
Case: a 25 million yuan of environmental automatic monitoring system project bidding. It is understood that there are at least five domestic suppliers with potential qualifications (of which the leader intends to preferably be a local company to win the bid). In view of the project's large procurement amount, covering a wide geographical area, complex technical parameters, special service requirements, etc., the purchaser in the bidding documents for the finalization of the provisions of the special instructions: this tender authorizes the bid evaluation committee to recommend three winning candidates (in no particular order), by the purchaser's representative of the winning candidate on-site inspection, and ultimately to determine a winning bidder. As a result of the solicitation, that local firm was ranked third in order of score. After the on-site inspection, the purchaser selected that local business as the sole winning bidder.
Legal comment: there is no prohibition in the law to inspect and finalize the tender. As far as the purchaser is concerned, to a relatively large amount of procurement and they have never built the environmental monitoring system project, entrusted to an unfamiliar supplier is a bit uneasy, from this psychological level alone, the winning candidate for the site visit to determine the bid, is indisputable, but also reasonable. The problem is that the case is a little abnormal. Leadership intention is best for local enterprises to win the bid, which is the same as the exclusion of the four potential bidders in the field; inspection of the bidding criteria are not set out in the bid, so the artificial bidding component is very large; the purchaser is authorized to evaluate the bid evaluation committee to recommend the three successful candidates, in the name of ranking in no particular order, and not according to the scores of the bidding, seems to have a bias. In accordance with the provisions of the existing system, the bid evaluation committee recommended three successful candidates, should be ranked according to the score, in principle, in the absence of special circumstances, the contract must be awarded to the first successful candidate.
Case 9: off-site winning
Case: a provincial vertical management department to build a system that can cover the system of provinces, cities and counties of the video conferencing system project. The project to implement the software and hardware bundled invitations to tender, which: 45% of the amount of software purchases, hardware purchases accounted for 55% of the amount. A classmate of the head of the department was the general manager of a small local software development company. Thus, the purchaser issued the following offer in the bidding document: bidders must participate in the bidding in the form of a consortium, and the software service must be responded to within four hours. The invitation to tender turned out to be as good as the purchaser had hoped.
Legal comment: because of the special requirements of the project, the implementation of the consortium bidding is possible. The current system of the consortium has clear provisions, the consortium should have the corresponding qualification conditions, must sign a joint agreement, and must be one of the parties to participate in the bidding, both parties bear the same legal obligations and responsibilities. In this case, if the project will be implemented software and hardware separate bidding, local software companies are not eligible to bid. Therefore, the purchaser has exerted a consortium bidding trick; because of the relationship between classmates, the local small business off-site bidding, this method is essentially a kind of favor bidding.
Case 10: delayed award
Case: a unit of procurement of 100 computers, according to the regulations: the two sides should be signed on January 31, the contract, Party A (supplier) must sign the contract within seven working days after the delivery of the goods, Party B (the buyer) must be within five working days for the acceptance of the goods, the payment of the goods must be accepted within 10 working days from the date of completion of the payment. Payment must be made in one lump sum within 10 working days from the date of completion of acceptance. Party A delivered 100 computers to Party B in 3 batches before February 10, and Party A appointed special persons to accept and put them into use in batches. As of April 30, Party A reminded Party B of the payment for a number of times without success. 8 May, Party A submitted a written application to the Procurement Center, requesting the coordination of the implementation of the funds to pay for the matter. After investigation, the two sides did not sign the contract in accordance with the specified time, not in accordance with the provisions of the goods acceptance form; Party B delayed payment on the grounds of financial constraints.
Legal analysis: this is a typical case of delay in awarding the contract. As the "God" of the purchaser to take advantage of the supplier's weak psychology, in the case of the delay in signing the contract, but instead of requiring suppliers to deliver the goods first, after acceptance and not timely acceptance procedures, and delayed payment under the pretext of financial constraints, resulting in the supplier several times to the door to ask for the payment of the goods to no avail. The main fault in this case is that the procurer delayed the signing of the procurement contract, delayed acceptance procedures, delayed payment of contract funds. The above phenomenon is very common, suppliers in order to make a business, usually do not dare to offend the purchaser, often do not care about the first contract, and then for the legal procedures of the goods, this lack of legal awareness, fear of the purchaser's abnormal mentality, just breeding the purchaser delayed award of the illegal behavior. Delay in the award of the evil consequences, not only damage the legitimate rights and interests of suppliers, and damage the public trust image of government agencies.