Legal information

Judgment point of view

Article 54 of the "Regulations on the Implementation of the Tendering and Bidding Law" For projects that require bidding according to law, the tenderer shall publicize the winning bidders within 3 days from the date of receipt of the bid evaluation report, and the publicity period shall not be less than 3 days. If a bidder or other interested party has any objection to the bid evaluation results of a project that requires bidding according to law, it shall be raised during the publicity period for successful bidders. The tenderer shall respond within 3 days from the date of receipt of the objection; before issuing a reply, the bidding activities shall be suspended.

Basic case facts

Nanjing Company T obtained the high-tech enterprise certificate and hydrology and water resources survey and evaluation qualification certificate. In October 2016, the tenderer issued a bidding announcement for the third bidding section of a certain project, requiring bidders to have Grade B or above hydrology and water resources survey and evaluation qualifications and a high-tech enterprise certificate. Nanjing T Company, H Company and many other companies participated in the bidding. During the bidding process, Nanjing Company T submitted documents such as its high-tech enterprise certificate and hydrology and water resources survey and evaluation qualification certificates.

On November 10, 2016, the tenderer announced the winning bid for the reservoir project on the Heilongjiang Provincial Water Conservancy Network. The winning bidder was Nanjing T Company. The notice informed that if there were any objections, they could complain to the Harbin Water Affairs Department. The next day, Company H complained to the Water Affairs Bureau, requesting that Nanjing Company T’s qualification as a winning bidder be revoked. Subsequently, the Water Bureau organized the original bid evaluation committee to review the complaints, and the review decision upheld the original evaluation results.

In December 2016, the Water Affairs Bureau made a decision to maintain the original bid evaluation result. Company H was dissatisfied and the municipal competent department applied for administrative reconsideration. The municipal competent department determined that the bidding documents of Nanjing Company T did not meet the qualifications stipulated in the bidding documents, revoked the decision made by the Water Affairs Bureau, and ordered it to make a new decision in accordance with the law. Nanjing Company T was dissatisfied and filed this lawsuit, requesting to revoke the administrative review decision made by the municipal competent department.

referee result

The Municipal Intermediate People's Court held in the first instance that the qualification certificate submitted by Nanjing Company T in the bidding documents did not meet the requirements of the bidding documents, and the Water Conservancy Bureau failed to review whether Company H raised objections to the tenderer before making a complaint in accordance with the law, and made a complaint handling decision to maintain the original evaluation results, which violated legal procedures. The municipal competent department revoked the water bureau’s decision and ordered it to make a new decision in accordance with the law. This was not inappropriate, and the court ruled to reject Nanjing Company T’s claim. Nanjing Company T was dissatisfied and appealed.

The Provincial Higher People's Court held in the second instance that according to the relevant provisions of the "Regulations on the Implementation of the Tendering and Bidding Law" and the "Measures for Handling Complaints about Bidding and Bidding Activities for Engineering Construction Projects", if a bidder or other interested party has objections to the bid evaluation results, it is a pre-emptive procedure to raise objections to the bidder. Therefore, the Water Affairs Bureau's decision on Company H's The complaint was improperly accepted without review. There was no legal basis for the municipal competent department to order the Water Bureau to make a new decision. Therefore, the first-instance judgment was revoked. The administrative reconsideration decision of the municipal competent department upheld the part that revoked the decision made by the Water Bureau and revoked the part that ordered the Water Bureau to make a new decision in accordance with the law.

Typical meaning

In administrative law enforcement activities, administrative agencies should abide by the rule of law principle of due process. In this case, according to Article 54 of the "Regulations on the Implementation of the Tendering and Bidding Law", if Company H complains about whether Nanjing Company T meets the qualifications specified in the bidding documents during the bidding process, it should first raise an objection to the tenderer. Company H complained directly to the Water Bureau, which did not meet the pre-procedural requirements for raising objections to the tenderer. The judgment in this case clarified the scope and boundaries of administrative power in administrative review, urged administrative agencies to enhance their awareness of administrative procedures, and protect the legitimate rights and interests of foreign enterprises to the maximum extent in accordance with the law. It has a promoting effect on giving full play to the normative and leading role of the judiciary and striving to create a development environment for fair competition.

[Summary of Yingting Lawyer]

From this case, we can see that when encountering bidding and other similar issues, if there is a dispute with the administrative department, you must seek judicial relief in a timely manner, and find a breakthrough to solve the problem and protect your rights and interests through professional analysis and evidence sorting by lawyers. The litigation process may be very difficult and tortuous, but the final result of this case still allows the legitimate rights and interests of the parties to be protected. Lawyer Ying Ting also reminds all parties involved that when encountering such problems, they must consult us in time. After analysis, they should understand the laws and regulations, policy basis, and similar case handling ideas before making a decision, so as not to miss the best opportunity to protect their rights and interests and cause irreparable losses to themselves.