Unfair competition in engineering bidding and its prevention methods (I)

The bidding and tendering system, as the main form of engineering contracting and contracting, has been widely used in the construction of international and domestic engineering projects. It through the market competition mechanism, follow the principle of fairness, openness and justice, help the contracting unit to select the design unit, construction unit, material and equipment supply unit. Practice has proved that the bidding and tendering system is a relatively mature and scientific and reasonable way of contracting and contracting, but also to ensure the quality of construction works, accelerate the progress of construction, and obtain the ideal economic benefits of the necessary means. However, due to the development of the construction market is not yet sound, the operation of the procedure is not standardized, coupled with the shackles of the management system and the lack of experience and other reasons, resulting in the construction project bidding and tendering in the specific operation of a number of problems still exist. This paper mainly on the project bidding and tendering in the existence of unfair competition and its prevention methods, put forward some views and recommendations.

I, engineering bidding and tendering in the form of unfair competition

Engineering bidding and tendering in the unfair competition, the main manifestation of collusion. It refers to the bidder and the bidder, or the bidder and the bidder between the use of improper means, the bidding and tendering matters to collusion, in order to crowd out competitors or damage the interests of the bidder. According to the author's knowledge, collusion in bidding and tendering behavior has the following main forms:

1, collusion between the bidders

The bidders agreed with each other, the unanimity of the bidding price is raised or lowered; or in the bidding for the project to take turns to win at a high price or low price; or the bidders to bid internally, internal bidding, and then participate in the bidding, and so on. Of course there may be other collusive bidding behavior.

2, the bidder and the bidder collusion, crowding out competitors

The bidder in the public opening of the tender before the opening of the tender, and the bidding informed of their special relationship with the bidder, or to assist the bidder to withdraw the bid, replace the offer; also the bidder to the bidder to disclose the bidding and agreed to bidding bidding to lower or higher bidding price, and then after the winning bidding to the bidder or Additional compensation to the bidder; or the bidder in advance to determine the winning bidder, in the agreement of the winning bidder to decide to choose, etc..

The above forms of performance almost include the implementation of engineering bidding activities in the process of unfair competition, and in the actual bidding activities, unfair competition is often at the same time in a variety of forms together. The discovery of such anomalies, should attract the attention of the competent authorities, investigation, evidence collection, and make a final determination.

The laws and regulations describe the forms of unfair competition, and provide a basis for the determination of unfair competition in practice. Once recognized that there is unfair competition, bidding management department must be punished in accordance with the provisions. The procedure for determining acts of unfair competition can generally be challenged by the bidder or tenderer who questions the results and process of bidding and tendering, and the competent authorities to investigate and obtain evidence, or can be determined in other ways. The main body of the evidence and the identification of unfair competition is the construction project bidding management office at all levels and construction authorities around.

Two, the project bidding to prevent unfair competition

1, accelerate the progress of legislation, increase law enforcement, and strengthen the legal system

Tendering is a competitive process. There should be strict regulations to ensure that it is openly conducted, fair and reasonable. The People's Republic of China *** and the State Bidding Law is the implementation of the specific norms of bidding, which as the bidding field of the basic law, played a normative role in the foundation of bidding, so that the bidding management departments have a law to follow, bidding activities have a law to follow.

In the process of implementing the Bidding Law, according to the emergence of some problems and the need for practical operation, the State Planning Commission has promulgated the Interim Measures for the Management of Bid Evaluation Experts and Bid Evaluation Expert Pools and Measures for Bidding for the Construction of Engineering and Building Projects. Among them, the Measures for Tendering and Bidding for Construction of Engineering and Building Projects were jointly issued by the State Planning Commission together with the Ministry of Construction, the Ministry of Railways, the Ministry of Transportation, the Ministry of Information Industry, the Ministry of Water Resources, and the General Administration of Civil Aviation of China and other six departments.

In addition, China has the Construction Law, the Anti-Unfair Competition Law, the Civil Law and other laws for reference. Under the premise of having a law to follow, according to China's legal principles, it should also be done to enforce the law strictly, and the law shall be punished. Specifically:

(1) to increase publicity and education, the establishment of ideological defense, so that people do not want to break the law. To vigorously carry out publicity on the bidding and tendering laws and regulations, education bidding and tendering on both sides and the agency intermediary organizations, administrative supervision organs and staff consciously learn the law, consciously use the law, consciously abide by the law.

(2) increase law enforcement and supervision, and set up a line of defense in the supervision mechanism, so that people can not violate the law.

(3) Increase the crackdown and strengthen the means of punishment, so that people dare not violate the law. Procuratorial organs at all levels should fully fulfill the function of punishing crimes and strive to improve the level of investigation and public prosecution of illegal acts in bidding and tendering activities. By speeding up the legislation, increase law enforcement efforts to crack down on the construction project bidding process of unfair competition, should be brought to justice, will not be merciful, appeasement.

2, the macro-management function of the bidding and tendering management organization

"Bidding and Tendering Law," Article 7, "the parties to the bidding and tendering activities should be subject to the supervision of the implementation of the law". One of the main tasks of supervision and management of bidding and tendering activities is to protect legitimate competition and strengthen the supervision and management of bidding and tendering activities. At the same time, in accordance with the law to investigate and deal with bidding and tendering activities, including unfair competition, including all violations of the law.

In the process of construction project submission, qualification examination of construction units, and supervision of bid opening and bid evaluation process, the bidding and tendering management organization should give full play to its macro functions. Only seriously regulate the project bidding and tendering activities, in order to truly ensure the effectiveness of construction, to eliminate the occurrence of unfair competition.