First of all, understand from the provisions:
1. The Bidding Law is only applicable to the bidding activities (or procedures) of government procurement projects, but other activities and management outside the bidding procedures should also be governed by the Government Procurement Law, otherwise it will conflict with the scope of government procurement.
2. The projects mentioned in this Law only refer to construction projects, excluding information, environmental protection and hydropower projects.
Secondly, from the legislative process:
Whether the project is listed as the object of government procurement has been debated in the legislative process. Finally, the reasons for supporting the inclusion of projects in the scope of adjustment of the procurement law are:
First, the government procurement law belongs to substantive law, and the bidding law belongs to procedural law. China adopts the legislative mode of coexistence of two laws, which cannot lead to mutual exclusion of the two laws;
Second, whether it is included in the scope of government procurement depends on the procurement subject and source of funds, not the procurement object;
Third, in practice, government investment projects are indispensable and important resources for the government, and project expenditures account for a fairly high proportion of government procurement expenditures. If the project is excluded, not only will the adjustment scope be incomplete, but also an important bargaining chip will be lacking in WTO accession negotiations, and the significance of the government procurement system will be greatly reduced.
Therefore, we believe that these two laws are parallel, but they are not contradictory.
Judging from the relationship between the two laws, the tendering and bidding law, like the contract law, can be said to be a supporting law of the government procurement law, and it also conforms to the international common practice and the legislative experience of various countries.
At the same time, when dealing with the relationship between the two laws, we should follow the principles of "the latter law is superior to the former law" and "the special law is superior to the general law". When the provisions of the Government Procurement Law are inconsistent with the Bidding Law, or there are other special provisions in the Government Procurement Law, the Government Procurement Law shall be followed.
Therefore, bidding is related to the government procurement system, but they cannot be equated; The Government Procurement Law and the Bidding Law overlap, but they are not contradictory, but coordinated and complementary.
The main differences between these two methods are:
(A) the main norms are different
The main body of government procurement law is state organs, institutions and organizations at all levels.
There is no restriction on the subjects stipulated in the Bidding Law. Any subject in China (compulsory or voluntary) conducts bidding activities, including private enterprises and other unincorporated organizations. Moreover, the Bidding Law not only regulates the subject of bidding (procurement), but also regulates the subject of bidding (sales), which is very different from the subject of the Government Procurement Law.
In practice, many provisions of the Bidding Law are aimed at compulsory bidding (engineering construction projects and related goods and services) and are not applicable to voluntary bidding by the parties.
(2) The behavior of norms is different.
The Government Procurement Law regulates government procurement behavior. This behavior includes not only bidding, but also inquiry, competitive negotiation and single-source procurement.
Academics often regard it as an administrative act, and think that the government can use procurement policy to intervene in the procurement market.
The Bidding Law regulates the bidding behavior. It refers to a transaction method in which the tenderer publicly selects the seller by means of tender announcement or invitation to bid.
Only refers to "buying", not including "selling". It's a civil act.
At the same time, from the process of behavior, government procurement behavior is longer and more complicated than bidding behavior.
(C) the emphasis on different legal responsibilities
Although both the Government Procurement Law and the Bidding Law involve civil liability, administrative liability and criminal liability, their emphases are different.
Because the government procurement law belongs to the category of administrative law, it regulates how government agencies manage and regulate government procurement behavior, so it emphasizes administrative responsibility;
Bidding law belongs to the category of civil law and economic law. Bidding is a kind of civil behavior, so civil liability is emphasized.
(D) the difference between management system and operation mode
1, management system.
Government procurement is a system of unified financial management, supervision, audit and division of labor supervision by administrative departments. The highest leading organ is the Ministry of Finance.
Bidding is a system of coordinated guidance of development and reform and centralized supervision by various industry (administrative) departments. The highest leading organ is the National Development and Reform Commission.
2. Execution mode.
Government procurement adopts a combination of centralized procurement and decentralized procurement, and takes the form of compulsory entrustment and voluntary entrustment.
The tendering and bidding adopts decentralized procurement (including decentralized entrustment and self-organization) mode, and the tenderer voluntarily entrusts.
3. Procurement catalogue and quota standard (tender scope and scale standard)
Government procurement shall be formulated and promulgated by the State Council and provincial governments or authorized departments according to the budget affiliation.
The bidding measures shall be formulated by the National Development and Reform Commission in conjunction with relevant departments, and published after being approved by the State Council.
4. Approval of procurement methods
The government procurement method of non-public bidding shall be examined and approved by the financial department at or above the municipal level.
Invitation to tender must be approved by the National Development and Reform Commission or the provincial government.
5. Qualification requirements of suppliers (bidders)
In addition to technical requirements and capacity requirements, government procurement also has policy requirements for supplier qualifications, such as tax payment, environmental protection, social security, employment and so on.
In addition to inviting public bidding, government procurement is allowed to pre-qualify suppliers, but public bidding is not allowed; But it is allowed in bidding, which is more common.
In the form of a consortium, all parties to the consortium should have the qualifications of general suppliers in government procurement, as long as one of them has specific qualifications; Bidding requires all parties in the consortium to have it, and the qualification level shall be determined according to the party with the lowest qualification.
6. The relief procedures (challenge and complaint) are different.
The supplier's query and complaint in government procurement refers to the behavior that the supplier thinks that his rights and interests are damaged by the procurement documents, procurement process and procurement results, and can appeal and supervise to the procurement institutions and financial departments.
It is the duty and legal obligation of the procurement organization and the financial department to inquire and accept the complaints of government procurement suppliers according to the regulations, otherwise the suppliers may have administrative reconsideration or administrative litigation.
Objections and complaints in the Bidding Law mean that bidders and other interested parties have the right to raise objections to the tenderee or complain to the relevant administrative supervision departments as long as they think that the bidding activities are not in conformity with the provisions of this Law.
The complainant and complaint items are broad, and there is no need to provide exact evidence, which will not cause litigation risks.