Basic facts
Shanghai Construction Group, Shanghai Installation Engineering Group Co., Ltd. and Shanghai Tower Construction & Development Co., Ltd., jointly called for bids for the surge protector intelligent monitoring system professional supply work of electromechanical system subcontracted work for Shanghai Tower project on July 6, 2012. China National Technical Import and Export Corporation was the bidding agency. Both Tianjin Zhongli Shendun Electronic Technology Co., Ltd. and Shanghai Eurotect Trading Co., Ltd. participated in the bidding of this project, and later Shanghai Eurotect Trading Co., Ltd. won the bid. Tianjin Zhongli Shendun Electronic Technology Co., Ltd. believed that Shanghai Eurotect Trading Co., Ltd. was not qualified for the bidding as the company failed to substantially respond to the requirements of bid invitation in its bidding document and its bidding product did not meet the technical requirements of bid invitation either. It was Shanghai Construction Group, other bid inviting units and China National Technical Import and Export Corporation, the bidding agency, maliciously colluded with the company to help it win the bid. Such acts were collusive bidding and unfair competition as they severely violated the Law on Bid Invitation and Bidding and its regulation on implementation, relevant provisions in the Anti-Unfair Competition Law. Based on these grounds, Tianjin Zhongli Shendun Electronic Technology Co., Ltd. filed a lawsuit to request the court to rule that the result in the bidding activity on surge protector intelligent monitoring system professional supply work of electromechanical system subcontracted work of Shanghai Tower project was invalid.
Results of judgment
The People’s Court of Pudong New Area after the first trial held that Tianjin Zhongli Shendun Electronic Technology Co., Ltd. had no evidence to prove that Shanghai Construction Group, Shanghai Installation Engineering Group Co., Ltd., Shanghai Tower Construction & Development Co., Ltd.,, China National Technical Import and Export Corporation and Shanghai Eurotect Trading Co., Ltd. had unfair competition such as acting in collusion and putting the other bidders out of the competition. The accused conditions were insufficient to deduce that the above corporations had collusive bidding and unfair competition. Hence the court rejected the claim of Tianjin Zhongli Shendun Electronic Technology Co., Ltd. as it was lack of factual basis. Tianjin Zhongli Shendun Electronic Technology Co., Ltd. did not accept the ruling and appealed. Shanghai Intellectual Property Court after the second trial held that according to the Paragraph 2 of Article 15 in the Anti-Unfair Competition Law, the bidder shall not collude with the company that is offering to bid in order to put the other bidders out of the competition. Article 41 of the Regulation on the Implementation of the Bidding Law also clearly stipulated the specific conditions to identify collusive bidding between the bid inviter and bidder. However based on the facts found in this case, Shanghai Eurotect Trading Co., Ltd. conformed to the qualification requirements of the bid invitation and its bidding product met the requirements of the invitation. Tianjin Zhongli Shendun Electronic Technology Co., Ltd. also
Typical significance
This case was about collusive bidding and unfair competition, but it was also a rare one among disputes over unfair competition. It involved the standards of identifying collusive bidding and unfair competition. The trail court determined that the claim on collusive bidding and unfair competition in dispute made by Tianjin Zhongli Shendun Electronic Technology Co., Ltd. was unable to establish after it examined whether the bidder conformed to the qualification requirements of the bid invitation, whether its bidding product met the requirements of the bid invitation and whether the bidding procedures were legal and other aspects on the basis of the specific conditions to identify collusive bidding between bid inviter and bidder stipulated by laws and regulations. The judgment of this case has referential significance in the trials of similar cases.
