Legal provisions on "designated brands" in bidding documents
Article 32 of the "Regulations on the Implementation of the Bidding and Bidding Law" stipulates that certain patents, trademarks, brands, The origin or supplier is a situation where the tenderer restricts or excludes potential bidders or bidders with unreasonable conditions. Article 18 of the "Tendering and Bidding Law" clearly stipulates that the tenderer shall not restrict or exclude potential bidders with unreasonable conditions.
When the tenderer prepares the tender documents and encounters difficulty in describing the technical specifications clearly, it is generally believed that as long as three or more brands are specified, it will not violate the provisions of the Tendering and Bidding Law on "restricting or excluding potential bidders or bidders" . In fact, this understanding is wrong. No matter how many brands are designated, it is an act of restricting competition by "designating brands" and is a violation of bidding laws.
The brands cited must be selective
Article 26 of the "Construction Tendering and Bidding Measures for Engineering Construction Projects" and Article 25 of the "Engineering Construction Project Goods Tendering and Bidding Measures" Articles all stipulate that if it is necessary to quote the technical standards of a certain production supplier to accurately or clearly describe the technical standards of the project to be tendered, the words "or equivalent" should be added after the reference.
When preparing engineering construction project goods and construction bidding documents, when it is difficult to describe the technical specifications clearly, it is allowed to quote the technical standards of certain brand suppliers as examples to illustrate the technical specification requirements, but at the same time It is required that the words "or equivalent" must be added after the reference brand to express the tenderer's technical requirements for the project to be tendered, and the quoted brand of goods is optional in the market.
Determination of brands of the same grade
The review committee determines whether other bid products provided by the bidder belong to brands of the same grade. Regarding the classification of brands, there are no detailed provisions in relevant laws and regulations. It depends entirely on industry reputation and the subjective judgment of bid evaluation experts. It is not a relatively fixed standard, so it is difficult to grasp the scale and it is easy to produce differences in cognitive standards.
Because the technical parameters of the same category of different brands are comparable, it is recommended that the tenderer try to return to the parameters themselves for comparison and judgment to avoid large deviations in subjective judgments.
Extended reading
"Tendering and Bidding Law of the People's Republic of China"
Article 18 The tenderer may, based on the requirements of the bidding project itself, The bidding announcement or bidding invitation shall require potential bidders to provide relevant qualification certification documents and performance information, and conduct a qualification review of potential bidders; if the state has regulations on the qualifications of bidders, such regulations shall prevail. The tenderer shall not restrict or exclude potential bidders with unreasonable conditions, and may not impose discriminatory treatment on potential bidders.
"Regulations on the Implementation of the Tendering and Bidding Law of the People's Republic of China"
Article 32 The tenderer shall not restrict or exclude potential bidders or bidders with unreasonable conditions . If a tenderer commits any of the following acts, it shall be deemed as restricting or excluding potential bidders or bidders with unreasonable conditions:
(1) Providing different projects to potential bidders or bidders for the same bidding project Information;
(2) The qualifications, technical and business conditions set are not compatible with the specific characteristics and actual needs of the bidding project or have nothing to do with the performance of the contract;
(3) In accordance with the law Projects that must be tendered use performance and awards in specific administrative regions or specific industries as bonus points or bid winning conditions;
(4) Adopt different qualification reviews or bid evaluation standards for potential bidders or bidders ;
(5) Limit or designate specific patents, trademarks, brands, origins or suppliers;
(6) Illegal restrictions on potential bidders for projects that require bidding according to law, or The ownership form or organizational form of the bidder;
(7) Restricting or excluding potential bidders or bidders with other unreasonable conditions.
"Measures for Bidding and Bidding for Engineering Construction Projects"
Article 26 The various technical standards specified in the bidding documents shall comply with national mandatory standards.
The technical standards specified in the bidding documents shall not require or indicate a specific patent, trademark, name, design, origin or production supplier, nor shall they contain any other information that favors or excludes potential bidders. content.
If it is necessary to quote the technical standards of a certain production supplier to accurately or clearly describe the technical standards of the project to be tendered, the words "or equivalent to" should be added after the reference.
"Measures for Tendering and Bidding of Goods in Engineering Construction Projects"
Article 25: The various technical specifications specified in the bidding documents shall comply with the provisions of national technical regulations.
The technical specifications specified in the bidding documents shall not require or indicate a specific patented technology, trademark, name, design, origin or supplier, etc., and shall not be biased or exclude potential bidders. Other content. If it is necessary to quote the technical specifications of a certain supplier to accurately or clearly describe the technical specifications of the goods to be tendered, the words "or equivalent to" should be added after the reference.
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