What is bidding?

A few years ago, Wang Jialin Tongzhi, then director of the Regulation Department of the State Planning Commission, later consultant to the Bidding Law and now consultant to the Government Procurement Law, published an article in which he pointed out the definition of bidding: "In construction projects or commodity transactions, it is called bidding to announce standards and conditions and recruit people to contract or buy."

Regarding bidding, the traditional view is a transaction method adopted in international trade.

Two professors, Yuhang and Fan Min of Wuhan University, said in their book "Bidding of Socialism" (Wuhan University Press 1984) that bidding is the buyer. Before purchasing a large number of materials (including purchased parts), contracting engineering projects or cooperating in a certain business, a tender announcement will be issued, and many manufacturers (or contractors) will come to bid, and finally the buyer (or contractor) will contract. In some dictionaries, the meaning of words is also described from the perspective of economics. Bidding is to recruit people to contract construction projects or purchase goods and equipment in an open way. This is a common means of competition in the world. Bidding is an expression of opinions to the tenderee (including natural persons and legal persons). According to the tender conditions and instructions, the bidder fills in the tender, lists the detailed list and contract price, and sends it to the tenderer in a sealed manner. When opening bids, the tenderee chooses the most favorable object (called the winning bidder) among the bidders to reach an agreement and sign a contract.

Professor Yuhang once defined that bidding is a kind of transaction behavior in which the tenderee (or tenderee) invites bidders (or tenderee) to bid in public or in writing according to the published bidding conditions before purchasing a large number of materials, contracting engineering projects or purposeful business activities, so that the tenderee can select the best from the bidding documents. (Excerpted from the first edition of Introduction to Bidding edited by Yuhang, China Geological Publishing House, July 1990, P 18).

He also explained in particular: "The legal concept of bidding, the concept of bidding has long been discussed in some dictionaries and some scholars' works. But almost all of them grasp its connotation from the perspective of economy and trade scope. It is rarely studied and regulated from the legal point of view and brought into the legal category.

Therefore, it failed to reveal the essence and significance of its law scientifically. Even in some legal works, bidding has not been put in its proper position, let alone discussed in detail.

There is nothing wrong with the above understanding, but due to the progress of society and the development of practice, this traditional theory can no longer be used to explain new problems in practice. At present, some enterprises and institutions in China, even government schools, also select and employ talented people as factory directors, managers and directors through bidding; Other units also recruit people by bidding, and contribute their talents to so-called software such as scientific research projects and market management schemes, which greatly exceeds the scope of trade and is no longer a commodity transaction. Bidding parties are no longer the relationship between buyers and sellers. We believe that these new phenomena in practice are a major breakthrough and development of traditional bidding theory. Therefore, it is absolutely necessary to give a new understanding and new connotation to bidding and conduct theoretical discussion.

Based on this, can we understand bidding in this way: bidding means that the tenderee (including natural person, legal person and unincorporated group) expresses his own meaning to the bidder in the form of announcement or official letter; Bidding is the expression of intention made by the bidder to the tenderer according to the conditions and requirements put forward by the tenderer. Considering the two together, that is, bidding is a legal act in which equal subjects negotiate certain rights to achieve the expected results. (Excerpted from P578 General Theory of Bidding, edited by Yuhang. )

Bidding, a competitive procurement method, fully meets the above requirements of market economy. By announcing the procurement conditions and requirements in advance, many bidders compete on the same terms, and the tenderee selects the contractor according to the prescribed procedures, thus truly realizing the principle of "openness, fairness and impartiality" in market competition. (Excerpted from Interpretation of People's Republic of China (PRC)'s Bidding Law-A Complete Book of People's Republic of China (PRC)'s Bidding Law, edited by the Drafting Group of the National Development and Reform Commission and the Policy and Regulation Department. The first explanation. )

Bidding refers to two main steps in trading activities. Bidding refers to the behavior of the purchaser or bidding agency to announce specific standards and conditions by issuing bidding announcement or invitation letter. , and invite bidders to participate in the bidding in public or in writing. The tenderer shall determine the transaction object from the bidding participants according to the prescribed procedures, that is, the winning bidder. Bidding means that bidders (suppliers or contractors) put forward their own quotations and corresponding conditions according to the requirements and conditions of the tenderee, and act accordingly on the bidding requirements and conditions put forward by the purchaser. (Recorded from Deng Hui's "New Interpretation and Examples of Bidding Law", the first edition of Tongxin Publishing House in April 2003)

In the second volume of Bidding Practice (edited by the Fixed Assets Investment Department of the National Development and Reform Commission and China Mechanical and Electrical Equipment Bidding Center in 2004), it is written as follows: "Bidding is a procurement method that is selected based on extensive competition and organized evaluation. Its core is competition, organization and openness. It is also the principle that should be followed in standardizing bidding. " (p 1)

According to the current thinking of various tenders, the author puts forward the following "reference opinions":

Bidding is a special transaction method. Refers to: when the procuring entity constructs the required projects or purchases a large number of important goods and services, it clearly puts forward the standards and conditions, clearly selects the methods, and invites bidders to respond and participate in the bidding in an open way (invitations may also be sent to some suppliers under special circumstances); The process of selecting the best bidder to win the bid and sign a contract with it according to the pre-specified standards and methods. Bidding method has the characteristics of one-time quotation to determine the result.

Sometimes, the government can also take the form of "bidding" to "transfer the franchise rights" of projects licensed by the government.

It shows that this formulation not only avoids the problem of incorporating the form of "bidding negotiation" denied by the Bidding Law into the concept of "bidding", but also points out the "special point" of this special transaction method.

As mentioned above, this special bidding method is mainly used in "public procurement" fields such as government procurement and loan projects from international financial organizations. The formulation of China's bidding law is also mainly to protect the interests of the state and the public. Mainly to regulate "legal tender" (also known as "compulsory currency").

However, what I don't understand is that according to the interpretation of the bidding law,

First, many people do not invite bids, which is also called "inviting bids". There is no detailed explanation. What should we do in this situation?

Secondly, according to the definition, all bidding activities in China should be regulated by the Bidding Law. National compulsory bidding involves public interests, or "generalized government procurement"; According to the concept of modern government procurement, even private funds and projects involving public interests are included in the scope of the Government Procurement Law. Professor Yang discussed this in detail in the book Research on Government Procurement. As far as the regulation of the Bidding Law is concerned, how to regulate the procurement activities that restrict private investment?

Now known tenders are: project tender; General contracting bidding; Bidding for survey and design; Bidding for scientific and technological research projects; Tender for decoration; Installation or supervision bidding; Bidding for imported equipment; Bidding for domestic equipment; Bidding for government office supplies; Bidding for designated procurement or maintenance services; Bidding for drug procurement; Dozens of property management tenders;

Other departments: bidding for land transfer; Bidding for TV advertisements; Public security case-solving bidding; Bidding for export quotas; Tender for interest rate of national debt; Talent bidding ... nearly ten kinds.

What's so special about bidding?

To sum up, the form of "bidding" has five characteristics:

First, the user or "owner" is clear. It must be a specific user (or a combination of several users) or the owner who puts forward the demand for purchasing important items or construction projects in order to be considered as a "tenderer";

Second, the requirements are clear. The specific requirements of the buyer must be put forward in written form (tender), including the qualification requirements for bidders, technical requirements for the contents of the tender, the time and place of delivery or completion of the project, payment methods, etc.

Third, the bidding must be open to competition, and restrictions must not be set to exclude some potential bidders;

Fourth, the bid evaluation must be fair and just, and be conducted in accordance with the pre-determined bid evaluation principles and methods. The winning bidder shall not be appointed at will.

Fifthly, the process of signing a contract between bidding quotation and transaction is "one-stroke sale", and the contract should be signed in time after bid evaluation and determination of the winning bidder.

The above two-Ming, three-fair and one-hammer transactions are the most important features of "bidding".

Starting from the purpose of safeguarding the interests of the state and the public, the effect of safeguarding the interests of the state and the public is achieved through bidding.

The core of bidding is competition. Under the condition of market economy, through the competition of many sellers, it has achieved good economic results for the buyer. However, if we only emphasize the competition of bidders and ignore the legitimate rights and interests of bidders and the interests of the state and the public, it will easily lead to the arbitrary behavior of tenderers and the bidders will feel unfair; It is also easy to breed corruption, thus undermining social harmony.

There are many advantages of bidding, but the disadvantages are self-evident: strict and complicated procedures and long cycle. As far as the international bidding of mechanical and electrical equipment under the jurisdiction of the Ministry of Commerce is concerned, the standard time period is about 35 days from the publication of the bidding announcement on the Internet to the end of the bid-winning publicity and the signing of the contract. Generally speaking, for other bidding projects, due to the provisions of national laws and regulations, the deadline from issuing the tender announcement to bidding should not be less than 20 days, so the time may be shortened (mainly because some projects have no publicity period), but compared with bidding negotiation, it takes a long time and has many rules, and violations are easy to be punished.

Why should we adopt such a complicated procedure as bidding in engineering construction and goods procurement?

In my opinion, the key point is that what we call "bidding" has gradually changed from the concept of "a special transaction method" in the past to "public procurement", a unique competitive procurement method.

As many experts have pointed out, the market economy in developed countries is divided into two parts: the private procurement market, which only makes laws without specific intervention and allows them to compete freely; Public procurement, this part, because its funds come from taxes on the public (taxpayers), must be properly applied. Countries often make laws to restrict and regulate government procurement, emphasizing that it must be done through open competition. The main way of competition is through public bidding. Some international organizations, such as the United Nations and the World Bank. , have formulated their own laws and regulations, such as the United Nations Model Law and the World Bank Procurement Guide. Because their funds come from various member units, they learn from the method of government procurement bidding. China has also formulated many corresponding laws and regulations, such as the Bidding Law and the Government Procurement Law.

Why does bidding become an "international practice" and the first choice for foreign government procurement and public procurement?

According to my understanding, adopting the special transaction method of bidding has the following advantages and characteristics:

First, it reflects the public's restrictive requirements for the government and civil servants. According to the "broker hypothesis", civil servants will not spend public money as carefully as they spend their own. We must set clear requirements and limit them. The latter must be transparent and accountable to the public. The so-called "sunshine procurement" contains this meaning.

Second, only in the market economy, full competition, it is possible to achieve both benefits and savings, unity and balance.

Third, only through public bidding and full information disclosure can all qualified and potential suppliers in the society get equal opportunities to participate in the competition, and can we really avoid all kinds of discriminatory and information asymmetry phenomena of "buying essence but not selling".

Fourth, only when the requirements and evaluation methods and standards are clearly defined in advance can we make a one-time quotation and judge the "sell at once" of the transaction. Avoid late wrangling and a lot of trouble. This is a bit like the saying that "sharpening a knife does not mistake a woodcutter."

Fifth, only by truly implementing "sunshine procurement and bidding" in accordance with international practice can the whole process be under the supervision of society, taxpayers and the people; Only in this way can we really prevent and crack down on all kinds of commercial bribery and corruption.

The author believes that the meaning of "bidding" should be unified and clear at present, and the definition of bidding should be unified and clear; Eliminate all "bidding" that is not in line with international practice, so as to make the government procurement and bidding in China develop more healthily.