Three reasons why you can't win by asking suppliers to invest.
Reason one: the principle of autonomy of the buyer's will.
Bidding is a kind of civil behavior, whose purpose is to make the buyer and supplier reach an agreement, form a contract and sign a contract through competition. The conclusion of a contract has an important principle, that is, the principle of freedom of contract, that is, the autonomy of the parties. Not winning the bid at the same time is the expression of the buyer's true meaning and should be protected by law. According to the first paragraph of Article 19 of the Bidding Law, the tenderee shall prepare the tender documents according to the needs of the project subject to tender, including all substantive requirements and conditions such as the technical requirements of the project subject to tender, qualification examination standards, bid quotation and bid evaluation standards, and main terms of the contract.
In addition, according to the first paragraph of Article 19 of the Bidding Law, it is the obligation and right of the purchaser to compile the bid evaluation standards and methods that match the characteristics and needs of the project, and the purchaser has the right to express its true meaning through the bidding documents.
Undoubtedly, the reason why purchasers are allowed to run concurrently is to enhance the competitiveness of bidding projects, improve procurement efficiency and maximize procurement benefits. But if buyers are not allowed to have both, there are generally two reasons.
First, guard against procurement risks.
If one of the bidding packages has quality problems and performance problems for some reason, it will lead to the failure of the whole procurement project, so the purchaser will split it and reduce the risk of bidding failure by not winning both bids, which is what we often say, "Don't put eggs in the same basket".
The second is to improve procurement efficiency.
In bidding procurement projects, it is often necessary to customize some procurement targets, which are futures rather than spot. Therefore, this kind of products involves the production capacity and supply cycle of enterprises. In order to ensure the supply cycle, dividing into multiple standard packages is beneficial to offset the risks of insufficient production capacity and long supply cycle, and improve the quality and efficiency of procurement.
To sum up, the purchaser has every right to decide whether to invest in winning the bid according to the characteristics of project procurement and his own needs. Bidding is often called blind date in the industry. The author uses an example of off-topic blind date to illustrate the problem and help everyone better understand the relationship between winning or losing and the buyer's autonomy principle.
This example is like this: a foreign member and two women have just grown up. Because there are many interested people, the foreign member decided to compete for marriage. Interested parties can participate in the women's ring competition at the same time, but the first place can only choose to marry one of them.
This is a typical casting and winning problem. From the Committee's point of view, betrothing two daughters to different talents is of real significance. From the point of view of the contestants, if they vote and win, their interests can be maximized (taking away the two daughters of the members at the same time), but this goes against the meaning of the members. If members are forced to promise to "win", that is coercion.
Reason 2: Bidding can only pursue the greatest relative fairness.
Nothing is absolutely fair, we can only try our best to get close to it. The same is true of government procurement. Any procurement method can only be relatively fair, but it can't be absolutely fair. Therefore, without violating national laws and regulations, the purchaser can formulate procurement standards according to the procurement objectives.
Another example about blind date: if a girl chooses a husband, if the woman's family conditions are good, then when choosing a husband, the woman's family may pay more attention to the son-in-law's personality, ability and other conditions, rather than demanding his family conditions; However, if the woman's family is average or even poor, the economic conditions of the man's family may be given priority.
In bidding procurement, we can compare the purchaser to the woman here, and the purchaser can choose and achieve the procurement result that best meets his actual needs according to his actual situation and needs.
Reason 3: Laws and regulations do not explicitly prohibit it.
The existing laws and regulations related to government procurement, including the newly implemented Order No.87, only stipulate that the following situations belong to excluding and restricting potential bidders and require prohibition.
legal ground
Article 26 of the Bidding Law of People's Republic of China (PRC) * * * A bidder shall have the ability to undertake the project subject to tender; If the relevant provisions of the state stipulate the qualifications of bidders or the bidding documents stipulate the qualifications of bidders, the bidders shall meet the prescribed qualifications.
Twenty-seventh bidders shall prepare the bidding documents in accordance with the requirements of the bidding documents.
The bidding documents shall respond to the substantive requirements and conditions put forward in the bidding documents. If the project subject to tender belongs to construction, the contents of the tender documents shall include resumes, achievements and mechanical equipment to be used to complete the project subject to tender.
Regulations for the implementation of the government procurement law
Article 20 A purchaser or procurement agency shall treat or discriminate against suppliers under unreasonable conditions in any of the following circumstances:
(1) Providing suppliers with different project information of the same procurement project;
(2) The qualifications, technology and commercial conditions set are not suitable for the specific characteristics and actual needs of the procurement project or have nothing to do with the performance of the contract;
(3) The technical and service requirements in procurement requirements point to specific suppliers and products;
(4) Taking the achievements and awards of a specific administrative region or a specific industry as the conditions for extra points or winning the bid and closing the transaction;
(five) adopt different qualification examination or evaluation standards for suppliers;
(6) Restricting or designating specific patents, trademarks, brands or suppliers;
(seven) illegal restrictions on the form of ownership, organization or location of suppliers;
(eight) to restrict or exclude potential suppliers by other unreasonable conditions.