Can branches, subsidiaries, etc. participate in the project bidding? Regarding the participation of branches and parent subsidiaries in the bidding activities, this article is clear.
Published:
2021-09-13
This article is reproduced in the WeChat public number "Construction Engineering Information Publishing Platform", from China Planning Publishing House. Link to the original text: Practical Questions and Answers | Can branches, subsidiaries, etc. participate in project bidding? 1. Can the branch bid? Question: What is the difference between a subsidiary and a branch company? For a construction project, is the branch company allowed to bid? For general projects (such as projects that do not require qualifications), is the branch company allowed to bid? A: See the table below for the differences between branches and subsidiaries. For construction projects, the branch is not allowed to bid, because the construction project requires the bidder to have the corresponding general contracting or professional contracting qualification, the branch can not obtain the construction qualification certificate. For general projects, branch companies may be allowed to bid, but the final civil liability is borne by their head office. 2. Can the branch bid with the qualification of the head office? Q: For an electronic intelligent bidding project, one of the bidding units is a branch, because there is no qualification, the qualification of the head office is used to participate in the bidding of the project. During the evaluation, the bid evaluation committee considers that the head office has the qualification and authorization to the branch and determines that the branch bid is valid. May I ask: Can a branch bid with the qualifications of the head office? A: The bid of the branch company for this project is invalid. Qualification is an administrative license and may not be granted or accepted privately. It is illegal for the head office to authorize its own qualification to a subsidiary and promise it to use it to participate in the bidding. It should be noted that if the project branch is bidding in the name of the head office, the role of the branch in the project is the authorized representative of the bidder (head office), not the branch itself. In this case, the bid is valid. 3, the parent company to participate in the same project bidding, the parent company voluntarily give up bidding, the subsidiary's bidding should be how to deal? Q: A project is subject to public bidding. A total of 6 construction companies participated in the bidding, two of which are parent and subsidiary companies. After the project entered the bid evaluation stage, the parent company issued a written notice to voluntarily waive the bid. Should the bid evaluation committee continue to evaluate the tender documents of the subsidiary, or should it reject the tender of the subsidiary? A: The tender of the subsidiary shall be subject to invalid tender treatment. The second paragraph of Article 34 of the "Regulations on the Implementation of the Bidding and Bidding Law" stipulates: "The person in charge of the unit is the same person or different units with a holding or management relationship, and shall not participate in the bidding of the same bid section or the same bidding project that is not divided into bid sections." According to the provisions of this article, the following different bidding units shall not participate in the bidding activities of the same bidding project: ① Different bidding units in which the person in charge of the unit is the same person; ② Different bidders with a controlling relationship; ③ Different bidding units with management relationship. The law prohibits different bidding units with the above-mentioned relationship from participating in the same project competition, which is a restrictive provision made to maintain the fairness of bidding. In the practice of bidding and tendering, there is a holding or management relationship between two units to participate in the same bidding project bidding, prone to prior communication, private collusion and other phenomena, affecting the fairness of competition, it is necessary to prohibit. In this case, there is a control and controlled relationship between the parent and subsidiary, which is prohibited by law. The third paragraph of Article 34 of the "Regulations on the Implementation of the Bidding Law" also stipulates: "If the provisions of the preceding two paragraphs are violated, the relevant bids are invalid." The invalid tender here means that the tender activity is invalid from the beginning. In other words, as long as there are prohibited circumstances stipulated in paragraphs 1 and 2 of Article 34 of the regulations, the relevant bid shall be invalid no matter when it is found. Specifically: if this situation is found in the bid evaluation process, the bid evaluation committee shall reject the bid; If this situation is found in the publicity of the winning candidate, the tenderee shall cancel its qualification to win the bid; If this situation is found after the contract is signed, the winning contract shall be invalid, and the tenderee shall cancel the contract, re-identify other winning candidates as the winning bidder according to law, or re-bid; If the contract has been performed, if it cannot be restored to the original state, the winning contract shall be invalid and the winning bidder shall compensate for the losses caused thereby. In this case, if it is found that the parent and subsidiary companies participate in the bidding of the same project at the same time, the bid evaluation committee shall reject the bidding documents of the parent and subsidiary companies. The rejection of the bid by the bid evaluation committee shall be made on its own in accordance with the law and shall not be affected by whether the parent company makes the abandonment of the bid. In addition, the legal nature of the parent company's abandonment of the tender after the closing of the tender is a withdrawal of the offer. As a tenderer, it may also not refund the tender deposit of the company in accordance with the relevant laws and the provisions of the tender documents. 4. How do you understand that "parent company, wholly-owned subsidiary and its holding company" may not bid at the same time? Q: How do you understand that "parent company, wholly-owned subsidiary and its holding company" cannot bid at the same time? Can wholly-owned subsidiary and holding company bid at the same time? In other words, can brother companies bid at the same time in the bidding of goods? Answer: The wholly-owned subsidiary of the same company and its holding company, that is, the brother company, if its legal representative is not the same person, can participate in the bidding of the same bid section or the bidding of the same project without division. The second paragraph of Article 34 of the "Regulations on the Implementation of the Bidding and Bidding Law" stipulates: "The person in charge of the unit is the same person or different units with a holding or management relationship, and shall not participate in the bidding of the same bid section or the same bidding project that is not divided into bid sections." Therefore, a parent company cannot bid for the same project at the same time; however, between a wholly-owned subsidiary and a holding company of the same parent company, I .e. between brother companies, if their legal representatives are not the same person, they may participate in the bidding for the same bid section or the bidding for the same project without division of the bid section. 5. According to the Measures for Tendering and Bidding for Construction Projects, what are the subsidiaries that are not eligible to participate in bidding? Q: Article 35 of the Measures for Bidding and Bidding for Construction Projects (Decree No. 30 of the National Development and Reform Commission and other seven departments) stipulates that bidders are legal persons or other organizations that respond to bidding and participate in bidding competition. Any subsidiary body (unit) of the tenderee that does not have independent legal personality, or any legal person and any subsidiary body (unit) that provides design and consulting services for the preliminary preparation or supervision of the bidding project, are not eligible to participate in the bidding of the bidding project. What are the subsidiary bodies? Answer: The specific scope of "subsidiaries (units)" referred to in Article 35 of the "Measures for Bidding and Bidding for Construction Projects" includes wholly-owned subsidiaries of the parent company, holding subsidiaries, and branches of the company that do not have legal personality., Offices, representative offices and other related institutions. 6. In the construction project, can the parent company directly contract out the bidding project to a subsidiary company with construction qualification? Q: The tenderer of a construction project is Company A, and Company B is a wholly-owned subsidiary of Company A. Company A does not have the qualifications required for the bidding project, and Company B has the qualifications and capabilities required for the construction project. Can Company A directly contract out the bidding project to Company B? If not, can Company B participate in the bidding of Company A's bidding project? Answer: Company A cannot directly contract the bidding project to Company B. Because Article 9 of the "Regulations on the Implementation of the Bidding and Bidding Law" stipulates that if the purchaser can build, produce or provide on his own in accordance with the law, he may not invite tenders. Company A does not have the qualifications required for the bidding project and cannot construct by itself. It must determine the construction contractor through bidding. Although Company B is a wholly-owned subsidiary of Company A, Company A and Company B are both independent legal entities with respective rights and obligations. Therefore, although Company B has the qualifications and capabilities required for the construction project, Company A cannot directly contract out the bidding project to Company B. On the premise of not affecting the fairness of bidding, Company B can participate in the bidding project of Company A. Because according to Article 34 of the Regulations on the Implementation of the Bidding and Bidding Law, legal persons, other organizations or individuals that have an interest in the tenderer and may affect the fairness of the bidding shall not participate in the bidding. This article does not prohibit legal persons, other organizations or individuals that have an interest in the tenderer from participating in the bidding, and the prohibition of bidding requires that the two conditions of "the existence of an interest" and "may affect the fairness of the bidding" be met at the same time. Even if there is a certain "interest" between the bidder and the tenderer, if the bidding activities are carried out in accordance with the law and the procedures are standardized, the "interest" does not affect its fairness and can participate in the bidding.
This article is reproduced in the WeChat public number "Construction Engineering Information Publishing Platform", from China Planning Publishing House.
Original link:Practical Questions and Answers | Can branches, subsidiaries, etc. participate in project bidding?
1. Can the branch bid?
Q:May I ask the difference between a subsidiary company and a branch company? For a construction project, is the branch company allowed to bid? For general projects (such as projects that do not require qualifications), is the branch company allowed to bid?
Answer:The differences between branches and subsidiaries are detailed in the table below.
For construction projects, the branch is not allowed to bid, because the construction project requires the bidder to have the corresponding general contracting or professional contracting qualification, the branch can not obtain the construction qualification certificate.
For general projects, branch companies may be allowed to bid, but the final civil liability is borne by their head office.
2. Can the branch bid with the qualification of the head office?
Q:For an electronic intelligent bidding project, one of the bidding units is a branch, because there is no qualification, the qualification of the head office is used to participate in the bidding of the project. During the evaluation, the bid evaluation committee considers that the head office has the qualification and authorization to the branch and determines that the branch bid is valid. May I ask: Can a branch bid with the qualifications of the head office?
Answer:The bid of the branch of the project is invalid. Qualification is an administrative license and may not be granted or accepted privately. It is illegal for the head office to authorize its own qualification to a subsidiary and promise it to use it to participate in the bidding.
It should be noted that if the project branch is bidding in the name of the head office, the role of the branch in the project is the authorized representative of the bidder (head office), not the branch itself. In this case, the bid is valid.
3, the parent company to participate in the same project bidding, the parent company voluntarily give up bidding, the subsidiary's bidding should be how to deal?
Q:A project public bidding, a total of 6 construction enterprises to participate in the bidding, including two parent-subsidiary companies. After the project entered the bid evaluation stage, the parent company issued a written notice to voluntarily waive the bid. Should the bid evaluation committee continue to evaluate the tender documents of the subsidiary, or should it reject the tender of the subsidiary?
Answer:The tender of the subsidiary shall be subject to invalid tender treatment. The second paragraph of Article 34 of the "Regulations on the Implementation of the Bidding and Bidding Law" stipulates: "The person in charge of the unit is the same person or different units with a holding or management relationship, and shall not participate in the bidding of the same bid section or the same bidding project that is not divided into bid sections." According to the provisions of this article, the following different bidding units shall not participate in the bidding activities of the same bidding project:
① Different bidding units in which the person in charge of the unit is the same person;
② Different bidders with a controlling relationship;
③ Different bidding units with management relationship.
The law prohibits different bidding units with the above-mentioned relationship from participating in the same project competition, which is a restrictive provision made to maintain the fairness of bidding. In the practice of bidding and tendering, there is a holding or management relationship between two units to participate in the same bidding project bidding, prone to prior communication, private collusion and other phenomena, affecting the fairness of competition, it is necessary to prohibit. In this case, there is a control and controlled relationship between the parent and subsidiary, which is prohibited by law.
The third paragraph of Article 34 of the "Regulations on the Implementation of the Bidding Law" also stipulates: "If the provisions of the preceding two paragraphs are violated, the relevant bids are invalid." The invalid tender here means that the tender activity is invalid from the beginning. In other words, as long as there are prohibited circumstances stipulated in paragraphs 1 and 2 of Article 34 of the regulations, the relevant bid shall be invalid no matter when it is found.
Specifically: if this situation is found in the bid evaluation process, the bid evaluation committee shall reject the bid; If this situation is found in the publicity of the winning candidate, the tenderee shall cancel its qualification to win the bid; If this situation is found after the contract is signed, the winning contract shall be invalid, and the tenderee shall cancel the contract, re-identify other winning candidates as the winning bidder according to law, or re-bid; If the contract has been performed, if it cannot be restored to the original state, the winning contract shall be invalid and the winning bidder shall compensate for the losses caused thereby.
In this case, if it is found that the parent and subsidiary companies participate in the bidding of the same project at the same time, the bid evaluation committee shall reject the bidding documents of the parent and subsidiary companies. The rejection of the bid by the bid evaluation committee shall be made on its own in accordance with the law and shall not be affected by whether the parent company makes the abandonment of the bid.
In addition, the legal nature of the parent company's abandonment of the tender after the closing of the tender is a withdrawal of the offer. As a tenderer, it may also not refund the tender deposit of the company in accordance with the relevant laws and the provisions of the tender documents.
4. How do you understand that "parent company, wholly-owned subsidiary and its holding company" may not bid at the same time?
Q:How do you understand that "parent company, wholly-owned subsidiary and its holding company" cannot bid at the same time? Can wholly-owned subsidiary and holding company bid at the same time? That is to say, can brother company bid at the same time in goods bidding?
Answer:A wholly-owned subsidiary of the same company and its holding company, that is, a brother company, if its legal representative is not the same person, may participate in the bidding of the same bid section or the bidding of the same project without division.
The second paragraph of Article 34 of the "Regulations on the Implementation of the Bidding and Bidding Law" stipulates: "The person in charge of the unit is the same person or different units with a holding or management relationship, and shall not participate in the bidding of the same bid section or the same bidding project that is not divided into bid sections." Therefore, a parent company cannot bid for the same project at the same time; however, between a wholly-owned subsidiary and a holding company of the same parent company, I .e. between brother companies, if their legal representatives are not the same person, they may participate in the bidding for the same bid section or the bidding for the same project without division of the bid section.
5. According to the Measures for Tendering and Bidding for Construction Projects, what are the subsidiaries that are not eligible to participate in bidding?
Q:Article 35 of the Measures for Bidding and Bidding for Construction Projects (Order No. 30 of the National Development and Reform Commission and other seven departments) stipulates that bidders are legal persons or other organizations that respond to bidding and participate in bidding competition. Any subsidiary body (unit) of the tenderee that does not have independent legal personality, or any legal person and any subsidiary body (unit) that provides design and consulting services for the preliminary preparation or supervision of the bidding project, are not eligible to participate in the bidding of the bidding project. What are the subsidiary bodies?
Answer:The specific scope of "subsidiaries (units)" referred to in Article 35 of the "Measures for Bidding and Bidding for Construction Projects" includes wholly-owned subsidiaries of the parent company, holding subsidiaries, and branches of the company that do not have legal personality Offices, representative offices and other related institutions.
6. In the construction project, can the parent company directly contract out the bidding project to a subsidiary company with construction qualification?
Q:The tenderer of a construction project is Company A, and Company B is a wholly-owned subsidiary of Company A. Company A does not have the qualifications required for the bidding project, and Company B has the qualifications and capabilities required for the construction project. Can Company A directly contract the bidding project to Company B? If not, can Company B participate in the bidding of Company A's bidding project?
Answer:Company A cannot directly contract the bidding project to Company B. Because Article 9 of the "Regulations on the Implementation of the Bidding and Bidding Law" stipulates that if the purchaser can build, produce or provide on his own in accordance with the law, he may not invite tenders. Company A does not have the qualifications required for the bidding project and cannot construct by itself. It must determine the construction contractor through bidding.
Although Company B is a wholly-owned subsidiary of Company A, Company A and Company B are both independent legal entities with respective rights and obligations. Therefore, although Company B has the qualifications and capabilities required for the construction project, Company A cannot directly contract out the bidding project to Company B.
On the premise of not affecting the fairness of bidding, Company B can participate in the bidding project of Company A. Because according to Article 34 of the Regulations on the Implementation of the Bidding and Bidding Law, legal persons, other organizations or individuals that have an interest in the tenderer and may affect the fairness of the bidding shall not participate in the bidding. This article does not prohibit legal persons, other organizations or individuals that have an interest in the tenderer from participating in the bidding, and the prohibition of bidding requires that the two conditions of "the existence of an interest" and "may affect the fairness of the bidding" be met at the same time. Even if there is a certain "interest" between the bidder and the tenderer, if the bidding activities are carried out in accordance with the law and the procedures are standardized, the "interest" does not affect its fairness and can participate in the bidding.
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