Original title: Practical Analysis | Reflections on the Audit of the Old Community Renovation Project: Discussion on the Scientific Division of Bidding Sections (Bidding Packages) of Government Procurement Projects
This article was first published in the 11th issue of Bidding and Procurement Management in 2023.
Author: Zhu Yonggang
Author's Affiliation:Daye Public Resources Trading Center
One
Case Introduction
According to Article 24 of the Regulations on the Implementation of the Bidding and Bidding Law, "the tenderer of the project that must be tendered in accordance with the law shall not use the division of bids to avoid bidding", the audit department believes that the practice of the Housing and Urban-Rural Development Bureau of the owner unit (hereinafter referred to as the Housing and Urban-Rural Development Bureau) is suspected of avoiding public bidding, and there are non-standard operations. The possibility of black-box operation or the use of bid divisions to exclude some potential bidders.
The renovation project in the old community is a key urban construction project in a city, and the project construction evaluation center has reviewed and approved the project budget cost of about 210 million yuan, and it is recommended that the project be implemented in batches under the premise of ensuring that the funds are guaranteed. The scope of the project covers three administrative areas, covering more than 40 old residential areas, and the construction content mainly includes the roof waterproofing of the building itself, the maintenance of water seepage on the wall, and the renewal and repair of stairs, steps, handrails, railings, parapets and other parts. In the next step, the renovation includes power supply pipelines, water supply pipelines, rain and sewage diversion, road blackening, additional parking spaces, lighting, greening, new garbage sorting devices, and elevator installation.
In order to ensure the rapid and synchronous implementation of the project, the Housing and Urban-Rural Development Bureau, the purchasing unit, will implement the project step by step in terms of bidding sections when drawing up the financial plan for the record, among which the separate housing renewal and repair project is divided into four bidding sections according to the provisions of the "Hubei Provincial Government Centralized Procurement Catalogue and Standards (2021 Edition)" (hereinafter referred to as the centralized procurement catalog), and the centralized procurement center (hereinafter referred to as the centralized procurement center) is entrusted to use competitive negotiation to act as an agent for procurement. The rest of the power supply and water supply pipelines, rain and sewage diversion, road blackening and other parts, according to the nature of the project and regional bidding section step by step entrusted to the social agency in the form of public bidding agency transactions, social agencies are based on the "Bidding and Bidding Law" and its implementation regulations, the use of the evaluation separation mode.
The renovation project of the old community is implemented step by step according to the actual situation and under the premise of guaranteed funds, which is reasonable and reasonable. The audit department is entangled in the change of the procurement method of the four bids for the housing renewal and repair project that was first implemented, but how can the bidding method approved by the development and reform department be changed?
Two
Case Analysis
(1) Principle analysis from the division of procurement project bids
The Housing and Urban-Rural Development Bureau took into account the policy reasons to speed up the progress of the project, and only the winning bidder entered the site at the same time to meet the requirements of the construction period. Article 34 of the Government Procurement Law (Draft Revisions for Solicitation of Comments) clearly stipulates that government procurement projects shall be procured according to the type of specialty and the field of specialization, taking into account factors such as technology and cost-effectiveness, promoting effective competition, and supporting the development of small and medium-sized enterprises. The third paragraph of Article 19 of the Tendering and Bidding Law and Article 27 of the Measures for Bidding and Bidding for the Construction of Engineering Construction Projects stipulate that if the bidding project needs to be divided into bids and determine the construction period, the tenderer shall reasonably divide the bidding section and determine the construction period. How to divide the bid section is reasonable? The audit department found that the procurer had complied with the principle of dividing bids, but the reasonableness of its division of bids was questionable. The budgets of the four bids exceeded the bidding quota standard (4 million yuan), and it was believed that the bidding method was changed by dividing the bidding sections, which violated the provisions of Article 24 of the Regulations for the Implementation of the Tendering and Bidding Law, and was suspected of avoiding bidding.
(B) from the normative analysis of the agency's performance of duties
In response to the questions of the audit department, the centralized procurement center, as an official agency, expounded its own views from three aspects.
The first is to accept the project according to the project attributes provided by the purchaser. Considering that the description of repair works (B08) and decoration projects (B07) in the Hubei Provincial Centralized Procurement Catalogue is "separate decoration and repair projects unrelated to the new construction, reconstruction and expansion of buildings and structures", combined with the contents of the bills of quantities of the four bid sections, it is agreed to accept the separate decoration and decoration projects of the four bid sections.
Second, according to the relevant provisions on the non-bidding of government procurement projects in accordance with the law, it is recommended that the purchaser adopt competitive negotiation for procurement. Due to the coexistence of the "Government Procurement Law" and the "Bidding and Bidding Law", the application of laws for government procurement projects and the selection of procurement methods have always been difficult in the industry. In this regard, the Treasury Department of the Ministry of Finance gave a clear answer, and the "Reply to the Issues Concerning the Application of Law in Government Procurement Projects" stipulates that the separate decoration, demolition and repair projects that are not related to the new, reconstruction, and expansion projects of buildings and structures above the bidding quota standard for government procurement projects do not belong to the projects that must be tendered according to law. Competitive negotiation, competitive consultation, or single-source procurement shall be conducted in accordance with article 25 of the "Regulations for the Implementation of the Government Procurement Law" and the "Interim Measures for the Administration of Competitive Consultation and Procurement Methods in Government Procurement".
Third, in order to ensure the fairness and impartiality of government procurement and in view of the strong competitiveness and high sensitivity of engineering projects, another special person was sent to select experts from other places, and the list was temporarily determined in other places, and the list was strictly kept confidential, so as to prevent the evaluation of familiar faces and the tendency to evaluate bids from the source, and fulfilled the duties of the agency.
From the point of view of the principle of the division of bids and the standardization of the performance of duties by both parties, the practices of the purchaser and the centralized procurement center are reasonable. However, the audit department's doubts have not been eliminated, and the current laws and regulations do not specifically guide how to divide the bids, but only emphasize the principles and general framework of the division, so it leads to chaos in the bidding market, such as reducing qualifications, intent to bid, avoiding bidding, and restricting and excluding potential bidders.
(3) Analysis from the perspective of auditing
Returning to the case, the issue of the rationality of the housing and urban-rural development bureau's division of the project and the change of the procurement method has always been the clue of the audit department. How to avoid a series of audit problems, the author believes that there are three aspects that need to be paid attention to.
First, there is no need for the purchaser to divide the decoration part separately, according to the principle of "territorial management", directly according to the administrative area of the division of the bid section and the use of public bidding method to implement synchronously, not only the implementation of the approval documents of the development and reform department, but also comply with the relevant provisions of the "Bidding Law" and its implementation regulations.
Second, even if the decoration and repair part is to be contracted separately, the project should not be handed over to the centralized procurement center to undertake, and the centralized procurement center is restricted by laws and regulations and should not take over the project from the beginning. Strictly speaking, the sub-projects divided by the bidding section should not be confused with the "separate decoration projects unrelated to the new construction, reconstruction and expansion of buildings and structures" required in the centralized procurement catalog.
Third, after the public bidding project is divided into bids (bids), even if the budget amount of the bids (bids) does not reach the public bidding quota standard, it should be procured according to the public bidding method, not to mention that the budget of the four bids divided by the project separately exceeds the bidding limit standard (4 million yuan). In order to facilitate the promotion of the project, whether it is entrusted to the centralized procurement center or a social agency, it is necessary to strictly follow the transaction procedures, operate in accordance with laws and regulations, operate in a transparent manner, be open and fair, and make reasonable and effective use of national resources and financial budget funds.
Three
Principles and main considerations for the division of bids (bids and packages).
Through the analysis of the above audit cases, it is not difficult to find that the purchaser shoulders the main responsibility of project procurement, and the correct division of the bid section (bid package) is very important for the project implementation, contract performance, and construction period efficiency. Below, the author discusses the principles, relevant factors and details of the division of bidding and procurement project bids (bidding packages) in combination with practice.
(1) The principle of dividing the bid section (bid package).
The general principle of the division of bids (bids and packages) should be conducive to the implementation of procurement projects.
The principle of division of bidding and procurement bids for projects: under the condition of meeting the needs of on-site management and project progress, the unit project with independent construction conditions and independent use functions is divided into units; For the unit projects that are closely connected and inseparable in engineering technology, the bidding section shall not be divided.
The principle of dividing the procurement of goods and services: the goods or services operated by a supplier with the same technical specifications or service types can be divided under the same package; For some goods and services with smaller amounts, subcontracting may be appropriately combined. Article 17 of the Measures for the Administration of Government Procurement Demand stipulates that the procurer shall clarify the requirements for procurement packages or contract subcontracting in accordance with the principles conducive to the implementation of procurement projects. If the procurement project is divided into procurement packages, it is necessary to separately determine the procurement method, competition scope, evaluation rules, contract type, contract text, pricing method and other relevant contract conclusion and management arrangements for each procurement package. Article 27 of the Measures for Bidding and Bidding for the Construction of Engineering Construction Projects stipulates that the tenderer shall reasonably divide the bid section and determine the construction period. For the unit projects that are closely connected and inseparable in engineering technology, the bidding section shall not be divided. Article 20 of the Administrative Measures for Bidding and Bidding of Highway Engineering Construction Projects stipulates that the division of bids shall be conducive to project organization and construction management, and the connection and cooperation of various professions.
(2) The main considerations for the division of bids (bids and packages).
1. It is not allowed to use the division of bids (bids and packages) to avoid bidding procurement or public bidding
The first situation is to achieve the purpose of direct procurement from the specific intention unit of the purchaser, dismembering and splitting the project into parts, and avoiding the entry procurement transaction on the grounds that the project does not meet the standard of decentralized procurement quota. For example, a government unit has a budget of 1 million yuan for a small renovation project, and the exterior wall renovation, lighting landscape, indoor ground decoration, ceiling and other projects are separately contracted to the outside world, and the supplier is designated to undertake the construction, without performing the government procurement procedures. Article 68 of the Regulations for the Implementation of the Government Procurement Law clearly states that procurers and procurement agencies that "fail to carry out procurement in the manner prescribed by the Government Procurement Law and these Regulations" will be investigated for legal responsibility in accordance with the law. In this case, the old community renovation project is divided into separate renovation projects, and each bid section has reached the scale standard that must be tendered according to law.
The second situation is that in the same fiscal year, the procurer procures goods and services of the same item or category under a budget item by non-bidding method for multiple times, and the cumulative budget amount exceeds the standard of the amount of public bidding, which is also an act of avoiding public bidding. For example, a unit purchases a batch of teaching all-in-one machines, two financial plan records, one with a budget of 1.09 million yuan and the other with a budget of 1.91 million yuan, and intends to use competitive negotiation to procure. After acceptance, the undertaker found that the parameters of the two projects were exactly the same, but the number of units purchased was different, and the situation was stopped and corrected in time. According to the provisions of Article 28 of the "Regulations for the Implementation of the Government Procurement Law", this is a typical circumvention of public bidding, which violates the provisions of Article 71 of the "Government Procurement Law" that "public bidding shall be used instead of other means of procurement", and should be ordered to make corrections within a time limit, given a warning, may be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished and circulated.
2. It is not allowed to use the division of bids (bidding packages) to restrict potential bidders
The first scenario is to reduce the qualifications or qualification conditions through the division of bids (bids and packages), so that the intended suppliers can be successfully shortlisted and achieve the purpose of making them finally win the bid. This type of operation is prohibited in some areas. For example, Article 6 of the "Wuhan Municipal Urban Construction Commission on Further Regulating the Bidding and Bidding Activities of Housing Construction and Municipal Infrastructure Engineering Projects" stipulates that "the tenderer shall reasonably divide the bid section according to the characteristics of the construction project, and shall not use the bid division to reduce the bidder's qualifications"; Article 11 of the Administrative Measures for Bidding and Bidding of Construction Projects in Shanghai stipulates that "the tenderer shall reasonably divide the bid section according to the characteristics of the construction project, and shall not use the bid division to reduce the bidder's qualifications." The division criteria for the bidding section of the construction project shall be determined by the municipal construction administrative department in conjunction with the relevant administrative departments".
The second situation is that the division of bids (bids and packages) is not professional and loses effective competitiveness. If the division of the bid section (bid package) is small and detailed, it will increase the contract management cost of the purchaser, test its contract management ability, and it is difficult to attract powerful suppliers to participate, resulting in reduced competitiveness and affecting procurement efficiency; If the division of bids (bids and packages) is too scattered or too large, and complex projects of multiple types, different technical parameter requirements and different products are divided into one bid, it will increase the difficulty of coordination of suppliers' technical interfaces, resulting in too few qualified bidders, losing effective competitiveness, and actually excluding potential suppliers. Of course, for some small amounts of goods or projects, it is appropriate to consolidate subcontracts, but in the procurement documents, it is necessary to specify the subcontract agreement that provides detailed specifications to fulfill the obligations of the agreement. When accepting actual projects, the author often encounters inquiries from purchasers, such as whether the decoration project of the lecture hall can package the tables, chairs and decoration works provided by different suppliers, and whether the decoration project of the office building can package the fire protection engineering and the decoration project together.
3. From the perspective of qualification management, reduce the bidding cost to adapt to suppliers with different qualifications
The first is to divide different bids (bids) according to the different attributes and different professional and technical categories of procurement projects, so that potential suppliers with corresponding qualifications can fully participate in the competition. For example, in a beautiful rural construction project, the lighting project, the greening and beautification project and the purchase of engineering transport vehicles are divided into three different procurement packages according to their attributes to meet the needs of suppliers with different qualifications and capabilities, so as to fully promote effective competition.
Second, if the procurement project contains different project attributes, different professional and technical categories, and is difficult to separate, and can only be procured as a project as a whole, professional subcontracting should be allowed and responsibilities should be borne separately. For example, an office building renovation project, including fire protection engineering and decoration engineering, in which the fire protection engineering accounts for a relatively small proportion, and the budget is below the decentralized procurement quota standard, professional subcontracting can be considered. Article 48 of the Government Procurement Law stipulates that, with the consent of the procurer, the supplier that wins the bid or concludes the contract may perform the contract by subcontracting in accordance with the law. Where a government procurement contract is subcontracted, the supplier that wins the bid or closes the contract shall be responsible to the purchaser for the procurement project and the subcontracted project, and the subcontracted supplier shall be liable for the subcontracted project.
4. Consider from the level of conducive to project implementation to meet the implementation requirements of procurement projects
The first is to consider the contract management ability of the purchaser and the market competition pattern. If the purchaser's procurement activity coordination ability and contract management ability are strong, the division of bids (bids and packages) can be flexibly subdivided according to needs. On the contrary, it is not advisable to divide too many bids (bid packages), and it is advisable to adopt the method of merger and packaging to reduce the difficulty of organizing and managing the procurement project of the purchaser.
Second, it is conducive to bidding, contract performance and acceptance. According to the different nature of the bid, the bid section (bid package) is reasonably divided, which is convenient to determine the object attributes of the procurement project, and the experts of the corresponding category are selected to accurately evaluate the bid. At the same time, the bidding section (bid package) of the same project attribute and professional category is conducive to the contract management and contract acceptance of the purchaser.
The third is to consider technical relevance and functional support. The interrelated ones should be divided into a single bid section (bid package), and it is not appropriate to subcontract for different subjects and parameters but the technical correlation is large. The division of bids and packages should fully understand the market supply of various equipment, and realize the effective connection of technical associations and functions between various parts of equipment as much as possible.
Fourth, construction period and efficiency. On the basis of meeting the implementation requirements of the procurement project, the division of the bid section (bid package) should consider the supplier's ability to perform the contract period and the production and supply capacity, and coordinate with the schedule requirements of the procurement project. Attention should be paid to avoid the phenomenon of excessive concentration of production and supply cycle in the same bidding package, so as not to cause the bidder to be unable to produce and supply in time and delay the contract performance of the entire project.
5. Pay attention to the details of multi-bid (bid-package) projects
First, the division of the bid section (bid package) should be clarified in the bidding (procurement) documents, and the procurement method, implementation scope, evaluation requirements, construction period and contract performance of each bid section (bid package) should be announced. For example, the scope of the connection between the bids is clarified to avoid disputes over the scope of responsibility in the implementation of the project; Clarify the bidding method of potential bidders, whether it is "concurrently invested or not concurrently" or "concurrently invested and concurrent"; Clarify the rules for bidders to win bids and avoid bidders choosing the winning bids by themselves; Clarify multiple bids (bids) (bids), staggered time, bid opening, etc.
Second, if the bidding section (bid package) divided into procurement projects is suitable for procurement for small, medium and micro enterprises, it should be specifically procured for small and medium-sized enterprises in the procurement announcement and procurement documents. This is the institutional requirement and practical need of optimizing the business environment and supporting the development of small and medium-sized enterprises in the field of public resource trading.