During the publicity period, it was determined to be the first successful candidate.
If no other unit questions the bid-winning result of publicity before the end of the publicity period
Then, after the bid-winning publicity period is over, the bid-winning results will be publicized according to the bid-winning publicity results.
Determine the winning bidder according to the previous publicity ranking.
According to Article 1.4 of the Measures for Bidding and Evaluation in the tender documents, "If the first-ranked bidder voluntarily abandons the bid-winning qualification or is disqualified by the tenderee, the second-ranked bidder is eligible to win the bid." The prerequisite for the second bidder to win the bid in advance is:
(1) The first bidder voluntarily gives up the qualification of winning the bid;
(2) The first bidder fails to comply with the requirements of the tender documents and is disqualified by the tenderee.
Bidder C Integration Company in this case 1 has neither voluntarily given up the bid-winning qualification, nor has it been disqualified by National School A of the tenderer for failing to comply with the requirements of the tender documents. Instead, the Finance Bureau, in combination with laws and regulations, directly rejected the bid of bidder C Integration Company 1 according to the actual situation. Therefore, Ding Installation Company's claim of winning the bid according to Article 1.4 of the Bidding Document "Measures for Bidding and Evaluation" is naturally unfounded.
(2) Seek the support of laws and regulations.
At present, we have sorted out four major laws and regulations, namely, the bidding law, the government procurement law, the implementation regulations of the bidding law and the implementation regulations of the government procurement law. According to Article 64 of the Tendering and Bidding Law, if a project that must be tendered according to law violates the provisions of this law and the bid is invalid, the tenderer may re-determine the winning bidder from the remaining bidders according to the bid-winning conditions stipulated in this law, or may re-tender according to this law. This article is aimed at the situation that the winning bid is invalid. Obviously, it does not force the tenderer to re-determine the winning bidder from the rest of the bidders, but adopts the empowerment setting for the tenderer, allowing the tenderer to decide independently.
Article 55 of the Regulations for the Implementation of the Bidding Law stipulates that only the first-ranked candidate gives up the bid (1), (2) fails to perform the contract due to force majeure, (3) fails to submit the performance bond as required in the bidding documents, (4) or it is verified that there are illegal acts that affect the bid-winning result and do not meet the bid-winning conditions, the second-ranked candidate will have. However, this article also stipulates that the tenderer "may also re-invite tenders". A comprehensive study of this clause obviously gives the tenderer the right to choose. In other words, it is up to the tenderer to decide whether other successful candidates must be determined as the winning bidders in turn according to the list of successful candidates proposed by the bid evaluation committee, or whether to re-bid, which is not mandatory by law.
According to Article 49 of the Regulations for the Implementation of the Government Procurement Law, only when the supplier who won the bid or clinched a deal refused to sign a contract with the purchaser can the candidate who won the bid or clinched a deal be promoted, that is, the purchaser can rank the candidates who won the bid or clinched a deal according to the list of candidates recommended by the bid evaluation report and determine the next candidate as the supplier who won the bid or clinched a deal. At the same time, the article also stipulates that the purchaser may "resume government procurement activities". This article also gives the purchaser the right to choose whether to "sort the next candidate according to the winning bidder or the list of winning bidders recommended by the bid evaluation report" or "restart the government procurement activities", and there is no mandatory provision on the way the purchaser should take.
In addition, according to Article 60 of the Measures for the Administration of Bidding for Government Procurement of Goods and Services (OrderNo. 12 of 2004). Ministry of Finance 18) (I deleted this article according to Decree No.87 of the Ministry of Finance), when the winning supplier is due to force majeure (1); (2) its own reasons; If the government procurement contract cannot be fulfilled, the purchaser can "sign the government procurement contract with the successful candidate supplier ranked after the successful supplier, and so on. This clause uses the word "may", which obviously gives the purchaser the discretion to make decisions according to the characteristics of the project or other factors, but does not use mandatory words such as "must" and "should".
The project involved in this case is a typical government procurement project because of the use of government financial funds, but it does not fall within the scope of Article 7 of the Regulations for the Implementation of the Government Procurement Law. The Government Procurement Law and related regulations should be applied, but the Bidding Law and related regulations should not be applied.
According to Article 49 of the Regulations for the Implementation of the Government Procurement Law, C Integration Company, the first successful bidder, did not "refuse" to sign a contract with the purchaser, but the Finance Bureau treated it as a waste bid. Obviously, this clause cannot be applied to this case, nor can Article 60 of the Measures for the Administration of Bidding for Government Procurement of Goods and Services (OrderNo. 18 of the Ministry of Finance). Moreover, this article has been deleted from the Administrative Measures for Bidding of Government Procurement of Goods and Services (Order No.87 of the Ministry of Finance) revised by 20 17.
To sum up, after the first successful candidate is rejected, the second successful candidate may not be promoted to the winning bidder. The key lies in the characteristics of the project itself and the independent choice of the tenderer.
Second, the tenderer has the right to decide to re-tender.
After combing the above laws and regulations, when the first successful candidate is rejected, the laws and regulations do not force the tenderer to determine the winning bidder from other successful bidders who rank second after the first successful candidate. On the contrary, from the perspective of sporadic regulations, laws and regulations give the tenderer the right to re-bid or determine the winning bidder from the second winning candidate.
In addition, in theory, according to the contract negotiation and conclusion links such as "invitation for quotation", "offer" and "acceptance", the tenderer or purchaser may not make an acceptance when submitting a "bid" offer for each bidder or supplier. Once they don't agree, there is naturally no possibility for both parties to reach a contract. Therefore, the tenderer or purchaser has the initiative to start the "re-tendering" from beginning to end (the author thinks that, of course, this arbitrary and independent behavior does not mean that it will not bear other legal consequences, at least facing the application of the liability clause for contracting fault stipulated in Article 42 of the Contract Law).
However, in practice, the tenderee or purchaser cannot choose at will. Bidding and government procurement are serious business activities. If the tenderee or purchaser is allowed to "lead the bidders or suppliers by the nose", it will not confuse the "set" of an orderly business competition environment. In this regard, not only the relevant laws and regulations have clear provisions, but also the bidding or procurement projects themselves have realistic and urgent requirements.
Whether the tenderer or purchaser has the right to re-bid depends on whether there is a basis for re-bidding in the bidding documents or laws and regulations.
Three, the financial sector can directly decide to scrap the bid and order the tenderer to re tender.
According to Article 13 of the Government Procurement Law, the financial departments of people's governments at all levels are responsible for the supervision and management of government procurement and perform their duties of supervision and management of government procurement activities according to law. As a supervision and management department, it naturally has the right to exercise supervision and management responsibilities and do a good job in response to illegal acts in government procurement activities.
In this case, due to the false bidding documents provided by C Integration Company, the District Finance Bureau naturally has the right to declare the project invalid and order the tenderer to re-tender.
Risk warning:
A, for the tenderer or purchaser
(a) the tender documents or procurement documents shall clearly stipulate whether the second-ranked candidate winning the bid can be promoted and the conditions for promotion, so as to avoid ambiguity and ambiguity in content;
(2) When preparing the tender documents or procurement documents, clearly stipulate the subject, conditions and procedures of the application for bid rejection, so as to avoid theoretical contest between in-laws afterwards;
(3) Explain how to solve the ambiguity or multiple interpretations in the contents of bidding documents or procurement documents, so as to promote consistency.
Second, for bidders or suppliers
(a) for administrative reconsideration, litigation or civil litigation procedures, do a good job of procedural argumentation and risk assessment in advance, so as to be targeted;
(two) a thorough understanding of laws and regulations and the provisions of the tender documents, to avoid misunderstanding and misinterpretation.
Preventive measures:
A, for the tenderer or purchaser
(a) to find all the laws and regulations involved in bidding or procurement projects, systematically sort out, be familiar with the contents of policies and regulations, and make a good reserve for making bidding documents or procurement documents;
(two) especially for the newly revised or newly promulgated regulations, we should study systematically, understand the latest spirit, find out the differences between the old and new regulations, and adjust the previous "viewpoints" and "practices" in time;
(3) Hire professionals to review the bidding documents, avoid conflicts with laws and regulations or discrepancies in connection, and eliminate or reduce the possibility of being interpreted by others;
(4) When preparing the tender documents, it should be as detailed and systematic as possible, so as to facilitate the normal progress of the project and reduce the occurrence of inquiries, questions and doubts in the process;
(5) Questions from bidders or suppliers, etc. , arrange professionals to answer or deal with it to avoid falling into procedural or substantive errors;
(six) for more difficult or major problems, through the forum or special group meeting to communicate, to find a good solution.
Second, for bidders or suppliers
(a) seriously study the "tender documents" and related laws and regulations, so as to know yourself and know yourself;
(two) the rights and interests of the designated professionals are justified and questioned;
(three) when it is necessary to file a lawsuit to defend rights, do a good job of defending rights, try to simulate it before the court session, so as to be prepared;
(four) before the trial, the formation of a sound agency ideas and agency text and other materials.