In the bidding and procurement activities, there have been different opinions on the qualification of the consortium, and some people even think that the Bidding Law and the Government Procurement Law have different qualification requirements for the consortium。Through a case study, this paper discusses the problem of joint venture qualification recognition。

Course of the case

For a design and construction general contracting project in a certain place in Sichuan Province, the qualification requirements for bidders in the bidding documents are: having Grade A and above qualification of engineering design and construction industry (construction engineering) issued by the construction administrative department and Grade A and above qualification of general contracting of construction engineering. The bid of the consortium is accepted in this tender。Company A and Company B form A consortium, in which Company A is a Grade A qualification of engineering design and construction industry (construction engineering) and a Grade II qualification of general contracting of construction engineering, and Company B is a grade B qualification of engineering design and construction industry (construction engineering) and a grade I qualification of general contracting of construction engineering。If it is agreed that Company A shall undertake the design work of the project and Company B shall undertake the construction work of the project, then whether the consortium composed of Company A and Company B meets the qualification requirements stipulated in the bidding documents?

Case study

First of all, the Tendering and Bidding Law and its implementing regulations provide: "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 qualification conditions of bidders, all parties to the consortium shall have the corresponding qualification conditions.。An association of units of the same profession

The qualification level shall be determined according to the unit with lower qualification level。The parties to the consortium shall sign a joint bid agreement, clearly specify the work and responsibilities to be undertaken by the parties, and submit the joint bid agreement together with the bid documents to the bid inviter。The Government Procurement Law and its implementing regulations provide: "Where government procurement is conducted in the form of a consortium, the suppliers participating in the consortium shall meet the conditions provided for in Article 22 of this Law, and shall submit to the purchaser a joint agreement specifying the work and obligations undertaken by the parties to the consortium.。If suppliers with similar qualifications in the consortium undertake the same work according to the division of labor in the consortium, the qualification level shall be determined according to the supplier with lower qualification level。

Therefore, the author believes that the key to determining the eligibility of A and B companies to form a consortium, whether in accordance with the Tendering and Bidding Law or the Government Procurement Law, is to look at the scope of work undertaken by the parties agreed in their joint bidding agreement or joint agreement。In this case, if the consortium agrees that Company A shall undertake the design work of the project and Company B shall undertake the construction work of the project, then the consortium shall meet the qualification requirements stipulated in the bidding documents。

In practice, however, opinions differ。Some people believe that the joint qualification of A and B companies in this case does not meet the requirements stipulated in the bidding documents。Because according to the relevant provisions of the consortium, first, it is required that all parties to the consortium should have the qualification conditions stipulated in the bidding documents, and second, the consortium should determine the qualification level according to the unit with lower qualification level。

The author believes that there are different opinions because the relevant parties (such as bidding and purchasing parties, bidders/suppliers, agencies, review experts and audit units, etc.) do not understand the provisions of laws and regulations in place。The Tendering and Bidding Law and its implementing regulations provide that: "All parties to the consortium shall have the corresponding qualification conditions stipulated.。

For a consortium composed of units of the same profession, the qualification level shall be determined according to the unit with the lower qualification level。First, the focus is on the word "corresponding", which means that the parties to the consortium should have the corresponding qualifications and capabilities to undertake the work within the scope of their respective divisions。In this case, Company A and Company B are satisfied within their respective scope of labor。Second, the focus is on the division of labor, that is, the joint body agreement agrees that the same professional division of labor is shared by two or more units, in accordance with the principle of low not high to determine the qualification of the consortium: different professional division of labor by different units, according to their respective professional qualifications to determine the qualification of the consortium。In this case, Company A and Company B have defined the division of labor and given full play to their respective professional advantages, then the qualification of the consortium meets the qualification requirements stipulated in the bidding documents。However, if the consortium does not have a clear division of labor, it is considered that the same professional division of labor is shared by two or more units, and the qualification level is determined according to the unit with a lower qualification level, so that the consortium does not meet the qualification requirements stipulated in the bidding documents。

The Government Procurement Law and its implementing regulations provide that: "Where government procurement is conducted in the form of a consortium, the suppliers participating in the consortium shall meet the conditions provided for in Article 22 of this Law。If suppliers with similar qualifications in the consortium undertake the same work according to the division of labor in the consortium, the qualification level shall be determined according to the supplier with lower qualification level。First, the six conditions stipulated in Article 22 of the Government Procurement Law are basic conditions, and all parties to the consortium should have them, which is beyond doubt。In this case, the qualification requirement is that the purchaser specifies the specific conditions of the supplier according to the special requirements of the procurement project, and the supplier in the consortium does not need to meet the same conditions。This point is clearly stipulated in the "Implementation Measures for Non-tendering Procurement of Government Procurement in Sichuan Province"。Although this is only a local document and only applies to non-tendering procurement, it further clarifies the qualifications of the consortium, and is not inconsistent with the relevant provisions of the Government Procurement Law and its implementing regulations, and can be used as an important reference basis in practical operation。Second, in this case, Company A and Company B undertake different work respectively, so the qualification level cannot be determined according to the supplier with lower qualification level。

From the above analysis, it can be seen that the current expressions of the two laws on the qualification of the consortium are consistent, but it is easy to cause misunderstanding in practice。In December 2019, the "Tendering and Bidding Law (Revised Draft for Public Comment)" issued by the National Development and Reform Commission further clarified: "The parties to the consortium shall have the ability to undertake the corresponding professional work of the bidding project as agreed in the joint bidding agreement: where the relevant state regulations or bidding documents have provisions on the bidder's qualification conditions.，Each party to the consortium shall have the corresponding qualifications as prescribed。The professional qualification level of the consortium shall be determined according to the professional division of labor agreed in the joint bidding agreement, respectively, according to the unit with the lowest qualification level to undertake the corresponding professional work。In December 2020, the "Government Procurement Law (Revised Draft for Comment)" issued by the Ministry of Finance also further clarified: "To participate in government procurement in the form of a consortium, the parties to the consortium should have the corresponding professional work capacity required by the procurement project, and specify the work undertaken by the parties in the consortium agreement.

Duty of reconciliation。The professional qualification level of the consortium shall be determined according to the professional division of labor agreed in the agreement of the consortium, respectively, according to the unit with the lowest qualification level to undertake the corresponding professional work。It can be seen that the recognition of the qualifications of the consortium in the draft amendments to the two laws is also consistent。

To sum up, the qualification of the consortium is based on the division of labor agreed upon by the consortium。For this point, the current provisions of the two laws are consistent, and the revised opinions of the two Laws have been further clarified。The existence of the consortium is to make up for the relative lack of technical strength of the relevant members of the consortium, to achieve the effect of strong combination and complementary advantages, and to enhance the bidding competitiveness and the ability to perform the contract after winning the bid。At the level of practical operation, we should accurately understand and grasp the legislative intention of consortium bidding, in order to deal with disputes on the eligibility of consortium bidding, improve the competition of bidding activities, and successfully achieve the purpose of bidding。