What Is Proxy Bidding?

Bidding agency generally refers to the behavior of a bidding agency (company) with relevant qualifications to be entrusted or authorized by the bidder to handle bidding matters in accordance with relevant laws and regulations. Tendering agency is to help bidders who do not have the ability to prepare bidding documents and organize bid evaluation to select strong and creditworthy bidders to ensure the smooth implementation of construction projects and the realization of construction goals.

Bidding Agent

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According to Article 13 of the "Tendering and Bidding Law of the People's Republic of China", "the tendering agency is a social intermediary organization established in accordance with law, engaging in tendering agency business and providing related services."

Establishing according to law means that the purpose and purpose of the establishment of the bidding agency conforms to the requirements of the state and the public interest, its organization, establishment method, business scope, and operation method meet the requirements of the law, and the relevant establishment procedures are handled in accordance with the legal review and registration procedures . As a social intermediary organization, the bidding agency's service purpose is to provide agency services for bidders. The bidding agency should handle bidding matters within the scope entrusted by the bidder.

As a social intermediary organization, the bidding agency must not have any affiliation or other interest relationship with the administrative organs and other state agencies, otherwise, there will be no distinction between government and enterprises, and it will constitute unfair treatment for other agencies.

In accordance with Article 12 of the "Tendering and Bidding Law of the People's Republic of China", the tenderer has the right to choose a tendering agency and entrust it to handle tendering matters. No unit or individual may designate a bidding agency for the bidder in any way.
If the bid inviting party has the ability to prepare bidding documents and organize bid evaluation, it may handle the bidding matters on its own. No unit or individual may force them to entrust a bidding agency to handle bidding matters.
In the case of bidding for projects that are required to be conducted according to law, the bid inviting party shall handle the matter of bidding on its own, and shall file a record with the relevant administrative supervision department.

The bidding agency must have the following two prerequisites for conducting agency activities:

(1) Agents must have legal agency qualifications

This premise requires that we first have a legal subject qualification. Because agencies are social organizations with civil subject qualifications, their emergence and existence must go through legal procedures. If it is a legal person, it must have the conditions that a legal person should have and the procedures that must be followed for its establishment. This legal subject qualification is generally based on the approval and registration of the industry and commerce administration. This premise also requires that agencies to engage in related agency activities must be reviewed and identified by the corresponding administrative department. The administrative department may make clear stipulations on the conditions, scope and level of the agency. The agency's acting behavior must conform to the scope recognized by the administrative department. To engage in the project bidding agency business, it is necessary to obtain the qualification of a project bidding agency recognized by the construction administrative department of the State Council or the construction administrative department of the people's government of a province, autonomous region, or municipality.

(2) The agency must be authorized by the agent

The authorization of the principal is the premise and basis of agency behavior. If there is no authorization from the principal, or the term of authorization of the principal has expired, the "act of agency" performed shall be invalid, and the legal consequences shall be borne by the actor. The agency's agency behavior must be carried out within the scope of the authorized person's authorization. If the agency exceeds the authorized person's "agent behavior", the legal consequences of such behavior shall also be borne by the actor. Such authorization shall be clarified through the signing of an agency contract between the bid invitation agency and the bid inviting party. The entrusted agency contract shall have the name, agency matters, agency authority, agency term, remuneration, place, method, liability for breach of contract, dispute resolution, etc. of the tenderer and the tender agency.

The legal liability of a bid invitation agency refers to the legal consequences that the bid invitation agency shall bear in the course of the bid invitation. The bidding agency is a social intermediary agency established in accordance with the law and engaged in bidding agency business. It shall handle bidding matters within the scope of the bidder's entrustment. Therefore, the bidding agency shall abide by relevant laws, regulations and departmental regulations on bidders. However, the bidding agency has an independent legal status in the bidding and bidding activities, so the laws, regulations and departmental regulations have made some special provisions on the legal responsibility of the bidding agency.

1) Relevant provisions of the Tendering and Bidding Law on the legal liability of tendering agencies. Article 50 of the "Tendering and Bidding Law" stipulates the legal responsibilities of tendering agencies. Tendering agencies have disclosed confidential information about bidding and tendering activities, and violations of the provisions of this law by bidding agencies in collusion with bidders and bidders have harmed national interests. , Social public interests or the legitimate rights and interests of others shall bear legal responsibility. The clause stipulates both the civil liability of the bidding agency and the criminal and administrative liability of the bidding agency.

According to the provisions of this clause, the main ways for the tendering agency to bear civil liability are manifested as liability for compensation and invalidity of the bid. The methods of administrative liability that bidding agencies should bear due to illegal acts include: warning, order correction, notification of criticism, fines for units and directly responsible supervisors and other directly responsible persons. For the amount of fines, according to the severity of the illegal act and Consequences, different fines are imposed, agency qualifications are disqualified, different periods of punishment are given based on the severity of the offense, and the bidding agency qualifications are suspended. Constitute a crime, be held criminally responsible.

2) In addition to the relevant provisions on the legal responsibilities of tendering agencies in the Tendering and Bidding Law, in other laws and regulations and departmental regulations, such as the Measures for Bidding and Tendering of Goods for Construction Projects, and the Qualifications of Central Investment Project Tendering Agencies Administrative Measures for Accreditation "," Complaint Handling Measures for Bidding and Bidding Activities of Construction Projects "," Measures for Bidding and Bidding of Construction Projects "," Measures for Qualification Recognition of Bidding Agencies for Engineering Construction Projects "," Implementation Measures for International Tendering and Bidding of Mechanical and Electrical Products "," The "Regulations on International Tendering and Bidding of Mechanical and Electrical Products" were further standardized, and the administrative responsibilities of the bidding agencies were further detailed.