Phenomenon and Countermeasures of Bidding Subcontracting and Illegal Subcontracting

In recent years, with the in-depth implementation of the Bidding Law, the behaviors of tenderers and successful bidders have been greatly regulated, which has played a very good role in preventing corruption from the source and ensuring the quality of the project and achieved remarkable results. However, in some places, the phenomenon of subcontracting and illegal subcontracting of winning projects is difficult to eradicate and has been repeatedly banned. They also present new trends and new characteristics, which seriously interfere with the order of the construction market, endanger the quality of the project and have a very bad impact on society. The author discusses the phenomenon of engineering subcontracting and illegal subcontracting in the construction field.

First, the meaning of subcontracting and illegal subcontracting

The tenderer selects the winning bidder suitable for his own needs through bidding activities and concludes a contract with him. The winning bidder shall fully fulfill the obligations stipulated in the contract and complete the winning project. The winning bidder shall not subcontract the project to others.

The so-called subcontracting refers to the behavior that the winning bidder transfers the winning project to others, so that others actually become the new contractor of the winning project. In practice, subcontracting is very harmful. The winning bidder subcontracted the winning project without authorization, which also violated the provisions of the contract law. The winning bidder's transfer of the winning project to others is an act of changing the subject of the contract without authorization, which infringes on the interests of the tenderer and is prohibited by law.

The so-called subcontracting of the winning project refers to the unit that carries out the general contract for the winning project, and then contracts some part or parts of the winning project to other contractors and signs subcontracting contracts with them. At this point, the winning bidder becomes the employer of the subcontract. For some bidding projects, such as large and medium-sized construction projects or complex structures, it is beneficial to subcontract some non-major and non-critical work items in the general contracting project to other contractors to give full play to their respective advantages, which will improve work efficiency, reduce engineering costs and ensure engineering quality. However, subcontracting must comply with the restrictions prescribed by law:

(1) The winning bidder can only subcontract the non-major and non-critical work of the winning project to units with corresponding qualifications;

(2) The subcontracted project must be one that can be subcontracted as stipulated in the bidding and procurement contract. If there is no agreement in the contract, it must be approved by the tenderer;

(3) The main body and key work of the winning project must be completed by the winning bidder and shall not be subcontracted;

(4) Subcontracting can only be carried out once.

Generally speaking, general contracting enterprises and subcontracting enterprises must have independent legal personality and the ability to perform contracts and bear civil liabilities, and must abide by the provisions of relevant laws, regulations and rules, and must not disturb the order of the construction market or harm the interests of others and the public. However, in order to safeguard the rights and interests of the tenderer and appropriately increase the responsibilities of the subcontractor, the Bidding Law stipulates that the winning bidder and the subcontractor shall be jointly and severally liable to the tenderer for the subcontracted project, that is to say, the tenderer may ask the winning bidder to bear the responsibility, or directly ask the subcontractor to bear the responsibility for the problems arising from the subcontracted project.

Second, the phenomenon

1, some successful bidders subcontract without authorization. In order to make profits, some small and medium-sized enterprises subcontract the projects that have won the bid at a reasonable low price after evaluation to others without the consent of the tenderer or through relationships, and earn some profits by themselves according to a certain proportion; As for the construction cost, project quality, completion acceptance and other issues, the original winning bidder ignored them. This kind of behavior is bound to make second-hand contractors profit from the project cost, leading to Jerry-building, shoddy construction and poor quality of the project.

2. The winning project manager subcontracts privately or subcontracts again after subcontracting. Most of these project managers are disorderly enterprises. They have paid part of the fees during the bidding registration procedure, and if they win the bid, they will also receive a commission of 4-8% of the bid price; The winning project manager hopes to get some net profit and then hand it over to others for construction. This kind of subcontracting behavior is more subtle than enterprise subcontracting. People tend to pay attention to whether the construction enterprise has changed without paying attention to the replacement of the project manager, so some projects can be subcontracted by the project manager, but the tenderer is completely ignorant of the details.

3. Failing to perform subcontracting and subcontracting procedures as required. Some successful bidders and project managers have very sharp contradictions with the local people, which cannot be solved in a short time, or projects that must be subcontracted due to force majeure such as sudden changes in construction conditions, and projects that are allowed to be subcontracted during bidding, and privately decide to build others; The original tenderer shall not examine the qualifications of the undertaking enterprise and project manager, and the relevant subcontracting or subcontracting procedures have not been handled in the bidding management department, let alone reported to the construction management department for the record.

4. Some construction enterprises regard the winning project as a direct subcontract of private plots. After signing the contract with the tenderer, some successful bidders privately subcontract the main body and key work to others for profit. In the project bidding, the bid documents of the winning bidder have explained that it is wrong to respond to the requirements of the bidding documents. The main body and key work of the project are not subcontracted or illegally subcontracted, but the winning bidder subcontracts it to others privately, no matter who it is subcontracted to and how qualified it is. A second-class construction company won the bid to build a staff dormitory project, and after signing a contract with the tenderer, it immediately signed construction contracts with three companies privately: a civil construction contract with a third-class construction company, a hydropower construction contract with a hydropower company, and a decoration construction contract with a decoration company. And I don't have a project manager to participate in the construction and act as a leather bag company. During the construction process, the two sides did not cooperate well to expose each other's shortcomings, and the construction progress was different, which delayed the construction period and exposed many problems.

The third reason.

1. The tenderee doesn't know much about his rights. Some bidders seriously lack the knowledge of supervision and management of contractors, especially how to evaluate the work of supervisors dispatched by supervision companies; How to evaluate the position of project manager and change the corresponding qualifications of project manager? They don't know that the winning project manager is not allowed to change in principle. Under special circumstances, the change of project manager must be strictly controlled and the legal procedures must be fulfilled.

2. Some bidders are not sure. Some construction enterprises themselves are not prepared to organize personnel to build the winning project, so they try their best to lure the tenderee, and the tenderee who can't stand the words and deeds of the construction enterprise or the project manager will give up the principle.

3. The disorder of project managers is a chronic disease of project subcontracting and illegal subcontracting. In some places, the management of project managers is very chaotic, and the phenomenon of disorderly flow is very serious and not serious. The certificate issued by the competent department is too arbitrary, and some project managers do not change the bidding of four companies within one month; Failing to carry out daily management according to the requirement of replacing the project manager once every three years, failing to immediately replace the project manager certificate as required, or stamping the seal of the competent department on the original project manager certificate to show legal flow.

4. The cooperation of relevant supervision and management departments is not in place. The bidding management department did not manage the project after bidding, and did not check whether the winning bidder's project manager changed or whether the project was subcontracted; Communicate with the building management department immediately when problems are found and solve them as soon as possible. The construction management department with direct management responsibility did not carefully review the qualification grade and bidding situation of the winning enterprise when handling the construction permit.

The situation of the project manager; During the daily inspection during the construction period, the position of the winning project manager was not checked; When it was found that the changers did not get the consent of the construction unit and went to the construction management department to perform the relevant procedures, they did not treat them seriously and correctly, but did whatever they wanted. Other relevant departments are even more perfunctory.

Fourth, countermeasures

1. Intensify publicity to provide legal basis for the tenderee to fully exercise its rights.

First, publicize the rights and obligations of the tenderee through radio, television, newspapers, internet and other media, so that the tenderee can improve his understanding of the inspection, management and supervision rights of construction enterprises; The second is to release the materials that should be known. The bidding management department and the construction management department should compile the Guide to the Tenderer's Behavior, the Guide to the Bidder's Behavior, the Instructions to the Winning Bidder, the Guide to Law-abiding Subcontracting of Construction Projects and the Instructions to Construction Enterprises, and send them to the tenderers, bidders and winning bidders, so as to let them know what they should do, how to do it, what responsibilities they should bear if they violate the law, and where to judge, so as to improve their consciousness of performing their duties seriously and handling affairs according to law.

2. Construction enterprises should pay attention to their own construction to meet the needs of market competition.

In the fierce market competition, only by strengthening internal management, adopting new technologies and new processes to reduce enterprise costs, optimizing resource allocation and improving labor productivity can enterprises enhance their competitiveness, continue to grow and be invincible in the competition.

3. Simplify procedures, standardize behaviors and improve work efficiency.

Under the premise of not violating relevant laws and regulations, the bidding management department should solemnly express the opinions of the tenderee. As long as the general contracting enterprise and the subcontracting enterprise have the independent legal person qualification and the ability to perform the contract, bear civil liability and meet the qualification requirements, they can go through the formalities of directly contracting the subcontracted project; If the subcontracting enterprises are determined by means of bidding, they must comply with the provisions of the Bidding Law and other laws and regulations: issuing bidding announcements, formulating bidding documents, organizing bid evaluation and calibration, and selecting the subcontracting enterprises on the best basis; However, the project cost determined by any method shall not be lower than the cost price of the subcontracting enterprise; Standardize the operation in the engineering trading center designated by the local government, and the subcontract must be reported to the local construction engineering management department for record management. In short, in terms of procedures, we should not only adhere to standardized operation and maintain fair competition, but also simplify procedures and shorten time as much as possible.

4, the government attaches great importance to, closely cooperate with relevant functional departments, * * * cooperate to punish subcontracting and illegal subcontracting.

Subcontracting and illegal subcontracting in the field of construction engineering is one of the main reasons leading to inferior projects, which is accompanied by corruption and has more serious consequences than corruption, that is, endangering the lives and property of others. Therefore, governments at all levels must attach great importance to it, intensify efforts and strike hard.

First, set up a project special rectification leading group to be responsible for research, organization and coordination; Set up an office, transfer business personnel from relevant departments to work in summer, formulate a remediation plan and implement it step by step.

The second is to increase publicity. It is necessary to set up information desks in various parks and communities where projects are relatively concentrated to answer questions from people from all walks of life face to face; Clipping and painting exhibition; Please ask the media to intervene, explain the harm in a targeted manner when exposing, explain the importance and urgency of rectifying subcontracting and illegal subcontracting with sufficient facts, and publicize it all the time.

Third, conduct a thorough investigation and registration. The basic situation of the projects under construction within the jurisdiction, the winning bid, the enterprises under construction and the illegal facts are not omitted. In particular, fraudulent projects; Do not have the construction ability consistent with the project construction, and have not changed after repeated urging and rectification; Major quality accidents or safety accidents occur in engineering construction; There are serious violations of law and discipline. , should be registered in detail and clearly stated.

The fourth is to clarify responsibilities and investigate and deal with them in place.

First, the bidding management department and the administrative department for industry and commerce should not only do a good job in publicity, but also do a good job in investigation.

(1) Any subcontracting or illegal subcontracting shall be deemed invalid. Because the provisions prohibiting the winning bidder from transferring the winning project, illegal subcontracting by the winning bidder and subcontracting by subcontractors are mandatory provisions of the law. The transfer or subcontract signed by the winning bidder or subcontractor in violation of these regulations is an invalid contract stipulated in the contract law, and the transfer or subcontract has no legal effect.

(2) good. 5%- 10% of the project amount can be transferred or subcontracted as appropriate.

(3) If there is illegal income, the illegal income shall be confiscated. As long as the winning bidder subcontracts or illegally subcontracts, and the subcontractor subcontracts again, the money income obtained will be confiscated.

(4) can be ordered to suspend business for rectification. For construction enterprises that violate administrative orders, whether to adopt them should be decided according to the specific circumstances of the illegal acts of the winning bidder and subcontractors;

(5) If the circumstances are serious, the business license shall be revoked according to law.

Second, the building management department should give full play to the functions of the department. Management should be in place in accordance with the national and provincial building management regulations and other relevant laws and regulations, especially the management project manager should clearly assign, and strive to achieve results within six months to one year. The project manager shall not be transferred within three years and must go through relevant formalities; Without legal procedures, the bidding management department shall not participate in the bidding of any project. Organize training courses for project leaders of construction units in time to guide the responsibilities of project managers, supervisors and cooperation with construction management departments, and strive to improve the comprehensive supervision and management level.

Third, the quality supervision and management department should assign special personnel to be responsible for every project within its jurisdiction, clarify the lifelong responsibility system, strengthen the sense of responsibility, and never let go of every link of construction to ensure the quality of the project. Four, safety supervision and management departments should actively respond to the call of the central government, the project construction field into the scope of safety supervision, found that the problem is solved immediately, and make unremitting efforts. The fifth is to guide and consolidate the results. After checking and correcting according to law, follow-up inspection should be done to prevent rebound. Such great efforts and comprehensive rectification will effectively curb the momentum of subcontracting and illegal subcontracting.