Overview of the case
A supplier of electromechanical equipment S company in the near future to participate in a government procurement project, through the online project registration, submitted pre-qualification documents. Prior to the evaluation of the pre-qualification documents, Company S was recognized by the relevant authorities as a defaulter due to previous market failures. During the evaluation of the pre-qualification documents, the evaluation panel took restrictive measures against Company S in accordance with relevant regulations and announced that Company S could not pass the pre-qualification.
Case Analysis
Based on the provisions of the relevant laws of China, in order to penalize the credit of the defaulter, the defaulter is not allowed to participate in the bidding and tendering work. Honesty and credit is one of the basic principles of bidding and tendering activities. In the bidding and tendering activities on the defaulter executor to carry out joint punishment, is conducive to regulating the bidding and tendering activities in the behavior of the parties, and promote the bidding and tendering market health and orderly development; is conducive to the establishment of a sound "a breach of trust, everywhere subject to limitations," the credit joint punishment mechanism, to promote the construction of the social credit system; is conducive to the maintenance of judicial authority, enhance the credibility of the judiciary, in the society as a whole. Enhance the credibility of the judiciary, the formation of respect for justice in society as a whole, honest and trustworthy good atmosphere.
The National Development and Reform Commission in the "on the bidding activities in the implementation of joint disciplinary notices on defaulters," the fourth "joint disciplinary measures," pointed out that the relevant departments should be based on the People's Republic of China and the National Civil Procedure Law, the People's Republic of China and the State Bidding Law, the People's Republic of China and the implementation regulations of the State Tendering Law, the People's Republic of China and the State Tendering Law, the People's Republic of China and the implementation regulations of the State Tendering Law. and State Bidding Law Implementation Regulations" "Supreme People's Court on the publication of information on the list of defaulters of the number of provisions" and other relevant laws and regulations, in accordance with the law on the defaulters in the bidding and tendering activities to take restrictive measures.
(I) Restrictions on Bidding Activities of Defaulting Executives
For construction projects that must be tendered according to law, the bidder shall specify in the pre-qualification notice, bidding announcement, bidding invitation and pre-qualification documents, bidding documents, the method of dealing with defaulting executives and the bid evaluation criteria, and in the bid evaluation stage, the bidder or bidding agent, or bid evaluation expert committee shall inquire whether the bidder is a faithless executor, and the bidding activities belonging to the faithless executor shall be restricted according to law.
More than two natural persons, legal persons or other organizations to form a consortium to participate in the bidding activities as a bidder **** together, all members of the consortium shall be inquired about the information of the defaulter executor. If one or more members of the consortium belongs to the executor with lost credit, the consortium shall be regarded as the executor with lost credit.
(ii) restrict the bidding agent activities of the executor of the breach of trust
The bidder entrusts the bidding agent to carry out the bidding matters, it shall inquire about the information of the executor of the breach of trust, and encourage the priority to choose the bidding agent with no record of the breach of trust.
(C) restrict the bid evaluation activities of the defaulter
The management unit of the bid evaluation expert pool established by law shall inquire about the information of the defaulter in the examination and approval of the employment of the bid evaluation expert and in the daily management of the bid evaluation expert, and shall not employ the defaulter as the bid evaluation expert. The bid evaluation experts who become the executor of the breach of trust during the period of employment shall be promptly discharged.
(D) restrictions on the bidding activities of the executor of the breach of trust
Bidders, bidding agencies in the employment of bidding practitioners before, should be clearly stipulated in the handling of the executor of the breach of trust, query the relevant personnel of the breach of trust information, the bidding practitioners belonging to the executor of the breach of trust shall be dealt with in accordance with the provisions of the. The above restriction shall terminate from the time when the defaulting executor is deleted from the Supreme People's Court's information database of defaulting executors.
On December 9, the Department of Construction Market Supervision of the Ministry of Housing and Construction issued a report on the "Construction Market Credit Information Grading Standards (Draft)" (hereinafter referred to as the "Grading Standards"), which makes it clear that the following credit defaults of the construction market entities will be included in the "blacklist" directory:
(a) Use of false materials, obtaining enterprise qualifications by deceptive means. materials, obtaining enterprise qualifications or individual practice registration qualifications by deceptive means, and being subject to administrative penalties;
(ii) bidders colluding with each other in bidding or with the bidder or bidding agent in bidding, which is serious and has a bad impact, and the relevant responsible parties are subject to administrative penalties, or are found to be directly responsible or mainly responsible by the court's judgment or arbitration agency's ruling;
( (C) the occurrence of subcontracting, lending qualifications, or relying on, borrowing qualifications bidding, subject to administrative penalties;
(D) the occurrence of large and above the quality and safety of construction accidents, subject to administrative penalties;
(E) by the court judgment or arbitration agency ruling, found to be delinquent in the construction, and refused to fulfill the obligations determined by the effective legal instruments, or by the competent departments of human resources and social security Included in the "blacklist" of defaulted wages of migrant workers;
(F) laws and regulations should be included in the construction market "blacklist" of other bad faith behavior.
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