Talking about the problems and countermeasures in the legislation of project bidding?

The following is the related content of the problems and countermeasures in the project bidding legislation brought by Zhong Da Consulting for your reference.

As a breakthrough in the reform of the management system of China's construction industry and the trading mode of construction products, the implementation of bidding system was established under the compulsion of the government. From 198 1, it has gone through three stages: pilot, implementation and gradual improvement. After more than 20 years of ups and downs, it has become an important system and main transaction mode to regulate the construction market. Because the function and inertia of the old system have not disappeared, the function of the new system is not perfect, the transaction cost in the construction market is too high and the transaction order is chaotic, which affects the efficiency of the bidding system. This paper mainly analyzes the problems existing in bidding legislation, so as to find out the countermeasures to solve the problems.

1. Problems in China's bidding legislation

1. 1 Inconsistent bidding laws in legal norms can be divided into broad sense and narrow sense. In a narrow sense, it refers to the Bidding Law of People's Republic of China (PRC) (hereinafter referred to as the Bidding Law), and in a broad sense, it refers to the normative documents related to bidding on the basis of laws and regulations including the Bidding Law. At present, there are more than 400 legal normative documents on bidding in China, and there are more normative documents such as local regulations. At present, the inconsistency or conflict between bidding laws and normative documents in China is serious. According to the preliminary investigation of 322 legal normative documents of bidding by relevant departments in 2002, it was found that more than one clause [11] did not conform to the relevant provisions of the Bidding Law. The problem of non-uniform bidding system has brought confusion to the bidding parties, including the supervisory organs, in the process of observing and applying the bidding law. For example, regarding the tender announcement, Article 16 of the Law on Tendering and Bidding stipulates that "the tender announcement of a project subject to tender according to law shall be published through newspapers, information networks or other media designated by the state". In other laws and regulations, for example, Article 14 of the Measures for the Administration of Tendering and Bidding for Housing Construction and Municipal Infrastructure Projects stipulates: "For projects that must be subject to public bidding according to law, the tender announcement shall be published in newspapers, information networks or other media designated by the state or local government, and at the same time, the tender announcement shall be published on the China Engineering Construction and Construction Industry Information Network."

1.2 The laws and regulations are not perfect. Since the early 1980s, China has gradually implemented the bidding system, which involves the use of foreign loans, contracting construction projects, importing mechanical and electrical equipment, allocating export quotas, and allocating scientific research topics. 1On August 30th, 999, the Bidding Law was passed, and it came into force on October 30th, 2000. Since then, various departments and localities have also promulgated a series of supporting rules and regulations. It has indeed promoted the development of the bidding market. However, with the development of economic construction, the law as a national superstructure can no longer meet the requirements of economic development. Therefore, the law should develop with the development of economy to meet the needs of economic development. For example, there have been such problems. Article 10 of China's Bidding Law stipulates that bidding can be divided into open bidding and invitation bidding. Article 17 stipulates that if a tenderer adopts the method of inviting tenders, it shall issue invitations to bid to more than three specific legal persons or other organizations with good credit standing and the ability to undertake the project subject to tender. However, the Bidding Law does not stipulate that there are less than three effective bids (excluding invalid bids) during bid evaluation, which cannot achieve the purpose of open bidding and invitation to bid. In view of this situation, it is only stipulated in Article 48 of the Measures for Bidding for Survey and Design of Engineering Construction Projects that after the bid evaluation committee rejects unqualified bids or determines them as invalid bids, if the bid evaluation committee decides to reject all bids because there are less than three valid bids, it shall re-invite bids in accordance with this law. Although this provision meets the requirements of economic development, it obviously lacks legal basis. Therefore, the bidding laws and regulations themselves need to be improved.

2. The causes of problems in China's bidding legislation.

First, China's legal system is not perfect, and there are problems in the government management system. Although China has promulgated the bidding law, the supporting laws and regulations in various places are still not perfect, which directly leads to many projects not acting in accordance with laws and regulations. In addition, China's reform and opening up is not long, the construction market reform has just begun, and the planned economy has a deep impact. The investment subject of most projects in China is still the state. In the project construction, the "four in one" phenomenon is still very serious. On the one hand, the phenomenon of "three excesses" (over-budget, over-budget and over-budget settlement) exists in large numbers, causing a lot of waste; On the other hand, it also provides managers with opportunities to use their powers to corrupt, disrupting the order of the construction market. Investment management, organization and implementation management and construction supervision of construction projects are integrated into a management system. This is tantamount to being an athlete and a referee. It is difficult to ensure the fairness and transparency of rule-making during the period. Some laws and regulations are not binding on the government, and many contractors are powerless.

Second, China's economic system is in the transition period from planned economy to market economy. Judging from the development process of many countries, when a country is in the process of economic restructuring and rapid economic growth,

The stage of change is often a period of high incidence of corruption. Because China is in the stage of rapid economic development, laws and regulations, as a superstructure, are decoupled from economic development from time to time.

Third, China's overall national quality is not high enough. Because the economy is not developed enough, the people's living standards are not high, and the traditional culture lags behind, the people's quality is not high. Some people take crooked ways driven by economic interests, and some people, for the sake of huge economic interests, do not hesitate to risk breaking the law and collude with real owners, judges or relevant regulatory authorities to manipulate the bidding results.

3. Problems and countermeasures in China's bidding legislation.

3. 1 The applicable principles of conflict of laws should follow the basic principles of applicable rules of laws. ① The superior method is superior to the inferior method; (2) the legal norms of the same rank have the same legal effect and are implemented within their respective limits of authority; ③ The special law is superior to the general law. Generally speaking, this principle only aims at conflicts caused by different normative documents formulated by the same organ on the same matter; ④ The new method is superior to the old one. Due to the revision and update of the law, the original law has changed, and this principle applies when the new provisions conflict with the old ones. ⑤ The principle of non-retroactivity.

Although the above principles are applicable to the settlement of legal conflicts, they still cannot solve all conflicts. When two or more of these principles apply to the same conflict at the same time, how should we choose these principles? There are two settlement mechanisms: one is the adjudication mechanism, which means that when the conflict of these legal norms cannot be applied according to the applicable rules, the relevant authorities make a decision on how to apply it; The second is the change and cancellation mechanism. The so-called change and cancellation mechanism refers to the supervision mechanism that the supervision department with the right to implement legal norms changes and cancels illegal legal norms in accordance with the authority and procedures prescribed by law.

3.2 Cleaning up the conflicting norms in laws and regulations In order to avoid the conflict between laws and regulations or the contradiction between laws and regulations themselves, we should clean up the corresponding legal norms in bidding according to the requirements of the Administrative Licensing Law, find the conflicting norms in time, and solve the following problems: whether it exceeds the formulation authority; Whether there are industry or local protection laws and regulations; Whether there is an additional examination and approval link in violation of regulations; Whether there are illegal media that publish tender announcements; Whether the provisions of qualification examination violate the bidding law; Whether the way to set up the bid evaluation committee violates the bidding law; Whether the provisions of the pre-tender estimate violate the bidding law; Whether the provisions of bid evaluation standards and methods violate the bidding law; Determine whether the provisions of the winning bidder violate the bidding law; Whether the provisions on the time limit violate the bidding law.

3.3 to speed up the formulation of China's bidding supporting laws and regulations. Since the implementation of the bidding system in 1980s, a considerable number of bidding laws and regulations have been promulgated, but the bidding legislation obviously lags behind the economic development and cannot meet the needs of economic development. Therefore, we must speed up the formulation of supporting laws and regulations for bidding. First of all, the implementation of the bidding system depends on maintaining the consistency of bidding rules, that is, it can be unified with the bidding market. Secondly, we should improve the quality of local supporting laws and regulations. Local governments do not need to repeat the contents of the superior law when legislating, which not only saves legislative resources, but also helps the relative people to implement and abide by it. Third, strengthen the judicial interpretation of the judicial organs' trial of bidding contracts. The performance and modification of contracts concluded through bidding are more complicated, and most of them are construction projects in bidding contract, which are more technical and aggravate the complexity of the problem. Therefore, it is suggested to formulate a special judicial interpretation on the application of law in the trial of bidding contract disputes.

3.4 The questioning procedure should run through the whole bidding process. First of all, there is still a process to improve the bidding laws and regulations. In the whole bidding process, there will always be some problems about the application of law and bidding activities. If bidders have questions about these, they can immediately file a challenge procedure with an independent appellate body. In order to make up for this lack of supervision, developed countries have established a bidding complaint mechanism in the bidding activities of government investment projects, that is, when bidders find that bidders or other bidders have violated the rules, they can complain to the corresponding institutions so that these institutions can take necessary measures to stop the violations. The WTO Agreement on Government Procurement stipulates in detail the questioning procedure, that is, as long as the parties find that there is a violation of the law or is not conducive to their interests, they can raise questions in writing, and these institutions can take necessary measures to stop the violation.

Secondly, the challenge should be tried by an impartial and independent review body, and its members should not be influenced by the outside world during their tenure and should be subject to judicial review. As the department's main responsibility is to decide the questioner's question, the review body must remain neutral and have no direct interest with the bidder and the subject matter of the complaint, so as to maintain a fair and just position when accepting and handling the complaint. At the same time, because the tenderee generally represents the government, the complaint accepting institution should generally be relatively independent of the government department responsible for bidding, thus effectively preventing the abuse of government administrative power.

Finally, the challenge procedure should provide for quick temporary measures to correct violations of laws and regulations and maintain business opportunities.

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