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The scope of the consortium

China's Government Procurement Law expresses the consortium as: more than two natural persons, legal persons or other organizations can form a consortium to participate in government procurement as a supplier. The tendering and bidding Law states that two or more legal persons or other organizations may form a consortium to bid jointly as one bidder.

The two laws have different expressions on the consortium. The scope of the consortium stipulated in the Government Procurement Law includes natural persons, legal persons and other organizations, while the tendering and bidding Law stipulates that the scope of the consortium includes legal persons or other organizations, excluding natural persons. This mainly stems from the definition of suppliers in the Government Procurement Law as "legal persons, other organizations or natural persons that provide goods, projects or services to purchasers." The tendering and bidding Law defines the bidder as "a legal person or other organization that responds to bidding and participates in bidding competition." Therefore, the Government Procurement Law limits the scope of the consortium to natural persons, legal persons and other organizations, while the tendering and bidding Law limits the scope of the consortium to legal persons and other organizations, which should be paid attention to by front-line personnel in practice.

The parties to the consortium shall have the prescribed conditions

The Government Procurement Law stipulates that if government procurement is carried out in the form of a consortium, the suppliers participating in the consortium shall have certain conditions, including six aspects.

(1) have the ability to bear civil liability independently

(2) have good commercial reputation and sound financial accounting system

(3) have the necessary equipment and professional and technical capabilities for the performance of the contract

(4) have a good record of paying taxes and social security funds in accordance with the law

(5) within three years before participating in government procurement activities, there is no record of major violations in business activities.

(6) other conditions prescribed by laws and administrative regulations.

China's tendering and bidding Law stipulates that all parties to the consortium shall have the corresponding capacity to undertake the bidding project; if the relevant state regulations or bidding documents have provisions on the qualifications of bidders, all parties to the consortium shall have the corresponding qualifications. In accordance with the above-mentioned legal provisions, all parties to the consortium must have the corresponding capacity or qualifications to undertake the tender project, but not part of it.

In practice, some personnel are not sure about this clause, and we further elaborate as follows: the tendering and bidding Law stipulates that all parties to the consortium shall have the corresponding ability to undertake the bidding project; if the relevant state regulations or bidding documents have provisions on the qualifications of bidders, all parties to the consortium shall have the corresponding qualifications. From the expression of the above law, it can be seen that all the parties to the consortium should have the corresponding abilities or qualifications, and the parties to the consortium here refer to all the members who participate in the association. Having the corresponding abilities or qualifications means that the members participating in the association have the corresponding abilities or qualifications respectively, and either party meets the corresponding ability or qualification requirements, and it cannot be that one party of the consortium has part of the abilities or conditions. the lack of conditions shall be made up by other members of the consortium. For example, Company An and Company B form a consortium to participate in the bidding, Company A has some qualifications specified in the bidding documents, Company B has other qualifications specified in the bidding documents, and after the consortium is formed between Company An and Company B, the two companies complement each other and seem to meet the qualification requirements of the bidding documents. But in fact, neither Company A nor Company B meets the qualification requirements of the bidding documents. The bidding of this form of consortium is obviously not in line with the provisions of China's "tendering and bidding Law".

The parties to the consortium shall jointly sign a procurement contract with the purchaser.

China's Government Procurement Law stipulates that if government procurement is carried out in the form of a consortium, the parties to the consortium shall jointly sign a procurement contract with the purchaser and bear joint and several liability to the purchaser for the matters agreed in the procurement contract.

China's tendering and bidding Law stipulates that if the consortium wins the bid, the parties to the consortium shall jointly sign a contract with the tenderer and bear joint and several liability to the tenderer for the winning project.

In accordance with the provisions of the above-mentioned law, if a consortium participates in the bid, if the bid is won, the parties to the consortium shall jointly sign a contract with the purchaser or tenderer. For example, company A, company B and company C form a consortium to participate in government procurement activities, and company An is the leader. If the consortium wins the bid, then Company A, Company B and Company C jointly sign a procurement contract with Company A, but cannot sign a procurement contract with Company An in the name of Company A. The parties to the consortium shall be jointly and severally liable to the purchaser for the matters agreed in the procurement contract. In practice, some people think that the representative or leader of the consortium should sign a contract with the purchaser. This view is wrong, obviously violates the provisions of the Government Procurement Law and the tendering and bidding Law, and is not conducive to the assumption of responsibility.

How to confirm the qualification level of the consortium.

How to confirm the grade of the consortium with different levels of members with similar qualifications in the consortium? the implementing regulations of the Government Procurement Law of China stipulate that suppliers with similar qualifications in the consortium undertake the same work in accordance with the division of labor of the consortium, the qualification level shall be determined according to the suppliers with lower level of qualification. The tendering and bidding Law of China stipulates that a consortium composed of units of the same specialty shall determine the qualification level according to the units with lower qualification levels.

In government procurement activities, where government procurement is conducted in the form of a consortium, a joint agreement shall be submitted to the purchaser in accordance with the provisions of the Government Procurement Law, indicating the work and obligations undertaken by the parties to the consortium. In practice, front-line personnel confirm that the qualification level of the consortium should be combined with the joint agreement, according to the regulations on the implementation of the Government Procurement Law, and according to the principle of "low but not high".

The prohibition of bidding by a consortium.

China's "regulations on the implementation of the Government Procurement Law" stipulates that if the parties to the consortium participate in the government procurement activities in the form of a consortium, the parties to the consortium shall no longer participate alone or form a separate consortium with other suppliers to participate in government procurement activities under the same contract.

If the regulations on the implementation of the tendering and bidding Law of China stipulate that all parties of the consortium bid separately in their own name or participate in the bidding of other consortia in the same bidding project, the relevant bids are invalid.

Both the regulations on the implementation of the Government Procurement Law and the regulations on the implementation of the tendering and bidding Law limit the uniqueness and exclusiveness of the consortium's bidding, that is, as long as they participate in the consortium's bid, they are members of the consortium, that is, they are disqualified to participate in the bid again, and may not bid separately in their own name or form a new consortium to participate in the bidding. In practice, in order to improve the winning rate, some bidders, on the one hand, form a consortium to bid, on the other hand, they bid separately in their own name or form a new consortium to participate in the bidding. it is obvious that this kind of behavior is not in line with the provisions of the law. the relevant bidding behavior shall be invalid.

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