Beijing Tuo Fu law firm lawyers -- in the bidding activities of the role of

Lawyers provide legal services for clients in the bidding business in a wide range of contents. But in recent years in the field of tendering and bidding unspoken rule prevails, various illegal chaos emerge in an endless stream, often hidden crisis. Once the crisis at some point in the future the sudden burst, light to cause significant property damage, will cause the murder. So the lawyers involved in the bidding activities, must establish a sense of responsibility.

Bidding and Tendering Law throughout China's current construction projects, government procurement, tendering and bidding law combining the practice in the service, the author thinks that the legal service available throughout the various bidding activities. But the current bidding law legal system based on the relative lag, the illegal manipulation all sorts of strange things, although the lawyer in the bidding activities of the effect is very significant, but the risk responsibility can not be ignored. Therefore, this article will from the contradiction between the bidding activities of both sides to analysis and practice may face the risk of a lawyer or responsibility in both activities, in order to my colleagues in the us.

A lawyer, in the bidding activities

As early as in 1998, the Ministry of justice, the State Planning Commission "on Lawyers engaging in the basic construction of large and medium-sized project tendering and bidding law business notice", will be the lawyer engaged in large and medium-sized basic construction project bidding law, provisions for the bidding amount is large or the international bidding of construction project bidding documents, contract review, modify provide legal advice, making the relevant legal documents, as well as the final text of bidding documents issued legal submissions and other activities. The "notice" provisions of the second point, in order to guarantee the national investment benefit and safety, a lawyer is the tender documents and related contracts issued legal opinions shall be the project legal person or bidding agency. Although the practice of tendering and bidding activities, lawyers involved in the depth is not ideal. But from the above notice spirit can learn, lawyers as the "gatekeeper" to participate in bidding activities, the rights and obligations of the principal, and the rights and obligations in the relevant range, take legal measures protection the interests of the parties is other occupation groups can not be replaced.

(a) the role of lawyers in the bidding activities

1, legal review the legality of the tenderer qualification and bidding project

Legal subject qualification, the tenderee tender is the premise to tender. Although the "Bidding Law", "government procurement law" of the tenderer qualification, legal, financial engineering or project in place to not have provisions in principle, but because the current bidding, bidding projects belong to different regions, different industries, different regions and different industries and have interests their demands, therefore, the administrative departments in charge of the industry often from their own interests to make some corresponding provisions, such as building departments have the "way" of bidding and tendering for construction projects, the highway departments have "management measures" highway engineering construction supervision bidding, water conservancy departments "water conservancy project construction project bidding management regulations", in addition to a large number of local regulations etc.. In the current administrative environment, the parties will generally to rank low on provisions, property of the tenderee and tendering qualification of project decision. But "legislative law", "general principles of civil law", "contract law" and other laws, administrative regulations, the relevant judicial interpretation of the law, the parties are often unclear. So from a legal perspective as the gatekeeper, to ensure the legitimacy of the tenderee and tendering projects, the bidding project based on valid smoothly under the lawyer's duty is employed.

2, agent or assist tenderee and tendering agency signed agent contracts

"Bidding Law", "government procurement law" and the supporting regulations, such as "construction project bidding agency qualification approach", "government procurement agency qualification method", "drug bidding agency qualification and supervision and management methods" and so many regulations on bidding agency to make some provisions. In this stage, the lawyer should review the legitimacy of the agency, especially the level of qualification, the agency only with legitimate and effective agent qualification, tendering agent can be engaged in the corresponding qualifications. Therefore, lawyers should be entrusted agent agreement tendering agency to assist or proxy bidding and qualified, to determine the entrusted matters, rights and obligations of the two sides. Illegal request agency entrusted proxy bidding without qualification to the parties, lawyers shall put forward its own legal advice, nip in the bud.

3, the parties to tender, assist in the preparation of bidding documents

The bidding documents is an important legal documents of the project bidding, have the force of law, is an indispensable part of the construction contract. Therefore, the lawyer should do the following work:

In the review of the tenderee with statutory self tender, assist tenderee tender documents, such as the instructions to bidders, nature of the project subject to tender, quantity, quality, specifications, bid price requirements and calculation method and so on, the bidder shall provide the relevant qualification certificates and other relevant legal documents, the bid bond or other forms of security, requirements for the preparation of bidding documents, the pre-sale period, the tender document submission of bid documents, place and deadline, the bid opening, evaluation, calibration schedule, the main evaluation standards and methods, the terms of the contract, to avoid unnecessary clarification, modify, or discriminatory, exclusive content.

4, the tender notice issued legal review

At present, the governments at all levels to take the tender notice issued by the media a lot, such as lawyers or assist tenderee according to "when the tender notice issued Interim Measures" and the relevant provisions, issue a tender announcement specified in the domestic or international influential newspapers or other media, contain the name and contact information, name, tender the project use, quantity, delivery time, place, qualifications of bidders and bidding evaluation method, the method of obtaining the tender documents, location, time, cost, the place and deadline etc..

5, to assist in clarifying and amendment of bidding documents

Assist or agent tender in the deadline for submission of bid documents date 15 days written notice to Buyer all bidding documents when necessary, to clarify or non substantive changes to the tender documents, improve the bidding documents, to prevent possible dispute, to ensure that the bidding activities carried out smoothly. Especially the parties have special needs, such as advance or delay the opening, a lawyer should seriously to prove.

6, the self tender, assist tenderee tender

The opening is one of the important links in bidding. Attention to protect the public, fair, justice, law can help organize bid opening, especially focus on the review of the bid evaluation committee composed of legitimacy legitimacy, opening procedures, because the problem is often the focus of the dispute.

7, the self tender, assist tenderee to conduct evaluation, calibration

In the evaluation, calibration stage, the lawyer's role is: to ensure that the bid evaluation, calibration, "the notice" issued by the legitimacy, to avoid unnecessary disputes, complaints, questioned the objection.

(two) the role of lawyers in the bidding activities

The lawyer is made law Xing practicing certificate according to law, authorized or designated to provide legal services for a client practitioners. A lawyer shall safeguard the legitimate rights and interests, maintain the correct enforcement of law, and maintain the social fairness and justice. As the party's lawyer, thoughts and the tenderee's lawyer is different. Its role mainly in the following aspects:

The legitimacy of the 1, agents or assist the audit the tenderer qualification and bidding documents

The legitimacy of the tenderee tender documents audit qualification and bidding project, is the focus of the review of lawyers. For some illegal requirements, in the tender document requirements, illegal or discriminatory exclusion contents timely challenge or question, finally to make bidding decision whether bidders.

2, agent or assist in the compilation of the bidding documents

The lawyer is mainly on the legal provisions are checks. Preparation of the quality of the bidding documents, directly related to the probability of winning bidders. The bidding documents should be strictly in accordance with the requirements of the tender documents format, system requirements of the tender documents in response to a substantial, but also some weight, which is different from other bidders. Of course, the lawyer must also be aware of their role, never let the parties themselves as a typist, as for business, and ultimately by the parties to determine the technical terms.

3, the tenderee bid opening, bid evaluation, the legitimacy of the calibration time tracking

In strict accordance with the "Bidding Law", "tender", "Regulations for the implementation of government procurement expert management measures" "the bid evaluation experts and expert database management Interim Provisions" and other relevant provisions, the bid evaluation committee members, bid opening, bid evaluation, illegal violation behavior standard in the process of timely objection, question or mention complaints. When necessary, the timely filed a judicial relief agency.

4, in the circumstances, agents or assist the sign the construction with the tenderer (purchase) contract.

Our country is a centralized country, the legal system from legal principle is unified, despite the various regions and departments, all interest subjects from their own interests to make different provisions of the bidding activities, but as long as the lawyer on the basis of validity of the "legislation law" provisions of the bidding in accordance with the law of conflicts the provisions of correct argumentation, generally able to get the parties understand and agree.

Two, lawyers in the bidding activities of the responsibility

Generally, lawyer's liability is a liability of experts. Because the degree of specialization of legal affairs at the deepening, coupled with the existing management problems, but also the lawyers themselves in the process of practice is not standardized, Leading Lawyers liability issues have become increasingly prominent. So, the lawyer in the course of the performance of the professional functions if losses are caused to others to bear the corresponding responsibility will can hardly be avoided. Of course, here said the responsibility mainly refers to the civil liability.

From the agent's point of view, lawyers involved in the bidding process, bidding and bidding activities for the responsibility is borne by the parties. But the law itself the trust relationship with the parties may also occur in two situations: one is a lawyer to the client undertakes the responsibility of breach of contract, tort liability law of two is the principal, the third person outside the bear,

According to the "contract law" provisions of article 107th, "if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreement" shall bear the liability for breach of contract. "Contract law" 406th stipulates: gratuitous commission contract, because the trustee fault and causes losses to the principal, the principal may claim compensation for the losses. Gratuitous commission contract, due to the agent's intentional misconduct or gross negligence causes losses to the principal, principal, may claim compensation for the losses. So, the lawyer to the client: such as tender, bidders, bidding agency, may bear the responsibility of default is ten, practical problems. Because, there is legal relationship between parties of contract law and bidding activities, so the lawyer responsible primarily on the basis of the violation of the obligations stipulated in the contract, the nature of this liability is the liability for breach of contract. Of course, on the basis of "lawyer law" provisions of article forty-ninth "lawyer practises illegally or causes losses to a party due to his fault, the law firm shall bear the responsibility for compensation." However, if we do take the responsibility, is bound to the individual lawyers to exercise such rights, responsibility actual bearing body or individual lawyers.

Similarly, third people outside the lawyer to the client may also bear the corresponding tort liability. The lawyers in the practice process not only for the client to provide legal services on its applicability, and may also produce the corresponding effect on specific third person, such as a lawyer for the tender issued by the relevant legal opinions, it has certain effect for bidders. Although there is no direct relationship between lawyers and the bidder, on the basis of the relative nature of the contract was not nor from between him and the contract to find the corresponding liability according to. However, the lawyer wrong issuing legal opinions and to trust the losses, is likely to bear the corresponding compensation liability. This liability is produced directly according to the law, belongs to tort liability.

Therefore, the practice of law if in violation of the relevant provisions of laws and regulations, or a lawyer acts in violation of the professional standards, or lawyers in violation of a specific agreement between him and the party, they may be considered as a fault. A causal relationship between the fault and the loss of the party if fact, then the law liability may become reality.

Three, the conclusion

On the basis of the general principles of the civil law "law", "contract law", "law", "Bidding Law", "government procurement law" and other laws, administrative regulations, rules, the tender, the exercise of the corresponding rights and obligations, such as bidding agency, issued a notice, the preparation of tender documents (Addendum), site reconnaissance, presided over the opening of tenders, the bid evaluation committee meeting up, issue a bid winning notice and other necessary rights, shall not circumvent bidding, non discrimination, exclusion, restriction of the bidder, not to disclose the relevant potential bidders, not on the way, don't buy a standard, bidding, bidding and other obligations to the role is very important. But the rights and responsibilities of reciprocity, destined to lawyers in the performance and parties contract, enjoy certain rights and undertake corresponding obligations. So the lawyers involved in the bidding activities of the responsibility, is to the responsible parties, also is to protect ourselves.