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Regulations of the People's Republic of China on the Implementation of the Tendering and Bidding Law (Decree No. 613 of The State Council of the People's Republic of China)

Order of The State Council of the People's Republic of China

No. 613

The Regulations on the Implementation of the Bidding Law of the People's Republic of China, which were adopted at the 183rd Executive meeting of The State Council on November 30, 2011, are hereby promulgated and shall come into force as of February 1, 2012.

Premier Wen Jiabao

December 20, 2011

Regulations for the Implementation of the Bidding Law of the People's Republic of China

Chapter I General Provisions

Article 1 These Regulations are formulated in accordance with the Bidding and Tendering Law of the People's Republic of China (hereinafter referred to as the Bidding and Tendering Law) for the purpose of regulating bidding and tendering activities.

Article 2 The term "project construction projects" mentioned in Article 3 of the Bidding and Tendering Law refers to projects and goods and services related to project construction.

The term "projects" as mentioned in the preceding paragraph refers to construction projects, including new construction, alteration and extension of buildings and structures and related decoration, demolition and repair; The term "goods related to the construction of the project" refers to equipment, materials, etc., which form an integral part of the project and are necessary for the realization of the basic functions of the project; The term "services related to project construction" refers to the survey, design, supervision and other services required for the completion of the project.

Article 3 The specific scope and scale standards of construction projects subject to tender according to law shall be formulated by the development and reform department of The State Council jointly with the relevant departments of The State Council and promulgated for implementation after being submitted to and approved by The State Council.

Article 4 The development and reform department of The State Council shall guide and coordinate the bidding and tendering work of the whole country and supervise and inspect the bidding and tendering activities of major construction projects of the State. The departments of industry and information technology, housing and urban and rural construction, communications and transportation, railways, water conservancy and commerce under The State Council shall, in accordance with their respective functions and responsibilities, supervise relevant bidding and tendering activities.

The development and reform departments of the local people's governments at or above the county level shall guide and coordinate the bidding and tendering work in their respective administrative areas. The relevant departments of the local people's governments at or above the county level shall, in accordance with the prescribed division of functions and duties, exercise supervision over tendering and bidding activities and investigate and punish illegal acts in tendering and bidding activities according to law. Where the local people's governments at or above the county level have other provisions on the division of supervision responsibilities of their subordinate departments in relation to bidding and tendering activities, such provisions shall prevail.

The financial departments shall, in accordance with law, supervise the implementation of budgets and government procurement policies for government procurement projects and construction projects subject to public bidding.

Supervisory organs shall supervise the subjects of supervision related to bidding and tendering activities in accordance with the law.

Article 5 Local people's governments at or above the city level divided into districts may, according to actual needs, establish unified and standardized places for bidding and tendering transactions to provide services for bidding and tendering activities. A place for bidding and bidding transactions may not have a subordinate relationship with an administrative supervision department, and may not make profits for the purpose.

The State encourages the use of information networks to conduct electronic tendering and bidding.

Article 6 State functionaries shall be prohibited from illegally interfering in tendering and bidding activities in any way.

Chapter II Bid Invitation

Article 7 For projects subject to bidding according to law that need to go through the examination and approval procedures in accordance with the relevant provisions of the State, the scope of bidding, the way of bidding and the form of bidding organization shall be submitted to the project examination and approval department for examination and approval. The departments of project examination and approval shall timely inform the relevant administrative supervision departments of the scope of bidding, the way of bidding and the form of bidding organization determined by examination and approval.

Article 8 Where state-owned funds hold a controlling or dominant position and are subject to tender according to law, public tender shall be conducted; However, an invitation to tender may be invited under any of the following circumstances:

(1) Only a small number of potential bidders are available for selection due to complex technologies, special requirements or natural environment limitations;

(2) The cost of adopting public bidding method accounts for too large a proportion of the contract amount.

Under the circumstances specified in Item (2) of the preceding paragraph, the projects specified in Article 7 of these Regulations shall be determined by the examination and approval departments when examining and approving the projects; For other items, the tenderer shall apply to the relevant administrative supervision department for confirmation.

Article 9 Tendering may not be carried out under any of the following circumstances, except under special circumstances as provided for in Article 66 of the Tendering Law:

(1) it is necessary to adopt an irreplaceable patent or proprietary technology;

(2) The purchaser is capable of construction, production or supply by himself according to law;

(3) The investors of the franchise project selected through bidding can construct, produce or provide by themselves according to law;

(4) it is necessary to purchase the project, goods or services from the original winning bidder, otherwise the construction or supporting functional requirements will be affected;

(5) Other special circumstances stipulated by the State.

Where a tenderer practices fraud in order to apply the provisions of the preceding paragraph, it shall fall under the circumvention of tendering as stipulated in Article 4 of the Tendering law.

Article 10 The ability of a tenderer to prepare tender documents and organize bid assessment as prescribed in paragraph 2 of Article 12 of the Tendering law refers to the ability of a tenderer to have technical, economic and other professionals appropriate to the scale and complexity of the project subject to tender.

Article 11 The qualifications of a procuratorial agency shall be determined by the relevant departments in accordance with laws and the provisions of The State Council.

The departments of housing and urban and rural construction, commerce, development and reform, industry and information technology under The State Council shall, according to the prescribed division of functions and duties, supervise and administer tendering agencies according to law.

Article 12 A tendering agency shall have a certain number of professionals who have obtained professional qualifications for tendering. Specific measures for obtaining professional qualifications for bidding shall be formulated by the department of human resources and social security under The State Council jointly with the department of development and reform under The State Council.

Article 13 No unit or individual may illegally interfere in a procuratorial agency's business within the scope permitted by its qualifications and entrusted by the tenderer.

A tendering agency shall abide by the tendering and Bidding Law and the provisions of these Regulations on tenderers in carrying out its tendering business. A procuratorial agency may not bid in the projects subject to tender as its agent or act as its agent, nor may it provide consultation for the bidders of the projects subject to tender as its agent.

A tendering agency may not alter, lease, lend or transfer the qualification certificate.

Article 14 A tenderer shall conclude a written entrustment contract with the entrusted tendering agency, and the fee collection standards stipulated in the contract shall conform to the relevant provisions of the State.

Article 15 For a project subject to public tender, tender announcements shall be issued and tender documents shall be prepared in accordance with the provisions of the Bidding and Tendering Law and these Regulations.

Where a tenderer adopts the pre-qualification method to examine the qualifications of potential bidders, it shall issue a pre-qualification announcement and prepare pre-qualification documents.

The pre-qualification announcement and tender announcement of a project subject to tender according to law shall be issued through the media designated by the development and reform department of The State Council according to law. The contents of the prequalification announcement or tender announcement of the same project subject to tender released through different media shall be consistent. No fees shall be charged for the publication of domestic prequalification announcements and tender announcements of projects subject to tender according to law by the designated media.

The standard texts formulated by the development and reform department of The State Council jointly with the relevant administrative supervision departments shall be used in compiling the pre-qualification documents and tender documents for projects subject to tender according to law.

Article 16 A tenderer shall sell the pre-qualification documents or bid invitation documents at the time and place specified in the pre-qualification announcement, tender announcement or invitation for bid. The sale period of pre-qualification documents or tender documents shall not be less than 5 days.

The fees collected by the tenderer for selling the pre-qualification documents and bidding documents shall be limited to compensating the cost of printing and mailing, and shall not be used for the purpose of making profits.

Article 17 A tenderer shall reasonably determine the time for submission of application documents for prequalification. The time for submitting application documents for prequalification for projects subject to tender according to law shall not be less than 5 days from the date when the sale of prequalification documents is stopped.

Article 18 Prequalification shall be conducted in accordance with the standards and methods stipulated in the prequalification documents.

For projects subject to tender according to law that are controlled or dominated by state-owned funds, the tenderer shall form a qualification examination committee to examine the application documents for pre-qualification. The qualification committee and its members shall comply with the provisions of the Tender and Tendering Act and these Regulations concerning bid assessment committees and their members.

Article 19 After the prequalification is completed, the tenderer shall timely issue a notice of the result of prequalification to the applicant. Applicants who fail to pass the prequalification are not eligible to bid.

If fewer than 3 applicants have passed the pre-qualification examination, the tender shall be renewed.

Article 20 Where a tenderer adopts the method of post-qualification examination to examine the qualifications of bidders, the bid assessment committee shall, after bid opening, examine the qualifications of bidders in accordance with the standards and methods prescribed in the bid invitation documents.

Article 21 A tenderer may make necessary clarifications or modifications to the pre-qualification documents or tender documents already issued. Clarifications or modifications may affect the prequalification documents or bidding documents compiling, the tenderer shall submit pre-qualification at least 3 days before the deadline for application documents or bidding deadline for at least 15, a written notice to all for prequalification document potential bidders or the tender documents; If it is less than 3 or 15 days, the tenderer shall extend the deadline for submitting the application documents for prequalification or bid documents.

Article 22 If a potential bidder or any other interested party has any objection to the prequalification documents, it shall raise such objection 2 days prior to the deadline for submitting the prequalification application documents; Any objection to the bidding documents shall be raised 10 days before the deadline for bidding. The tenderer shall give a reply within 3 days from the date of receiving the objection; Pending a reply, bidding and tendering activities shall be suspended.

Article 23 Where the contents of the pre-qualification documents or the tender documents prepared by the tenderer violate the mandatory provisions of laws and administrative regulations or the principles of openness, fairness, impartiality and good faith, thus affecting the results of the pre-qualification or the bidding of potential bidders, A tenderer for a project subject to tender according to law shall re-tender after revising the pre-qualification documents or tender documents.

Article 24 A tenderer who divides tender sections of a project subject to tender shall abide by the relevant provisions of the bidding and tendering law and may not restrict or exclude potential bidders by dividing tender sections. A tenderer for a project subject to tender according to law may not circumvent tender by dividing bid sections.

Article 25 A tenderer shall state the validity period of his bid in his tender documents. The validity of the bid shall start from the deadline for submission of bid documents.

Article 26 Where a tenderer requires a bidder to submit a bid bond in his tender documents, the bid bond shall not exceed 2% of the estimated price of the project subject to tender. The term of validity of bid security shall be consistent with the term of validity of bid.

For projects subject to tender according to law, the bid bond submitted by domestic bidders in the form of cash or check shall be transferred from their basic account.

A tenderer may not misappropriate the bid bond.

Article 27 A tenderer may decide on his own whether to prepare a pre-tender estimate. A project subject to tender can only have one pre-tender estimate. The pre-tender estimate must be kept confidential.

An intermediary institution entrusted with the preparation of a pre-tender estimate may not participate in the bidding of the project entrusted with the preparation of a pre-tender estimate, nor may it prepare bid documents or provide consultation for the bidder of the project.

If a tenderer has a maximum bid price limit, he shall specify the calculation method of the maximum bid price limit or the maximum bid price limit in his tender documents. A tenderer may not set a minimum bid price limit.

Article 28 A tenderer may not organize single or part of potential bidders to inspect the project site.

Article 29 A tenderer may, according to law, carry out general contract bidding for the project and goods and services related to the project construction in whole or in part. If the projects, goods and services included in the general contract in the form of provisional valuation fall within the scope of projects subject to tender according to law and meet the scale standards prescribed by the State, tender shall be conducted according to law.

The term "provisional valuation" as mentioned in the preceding paragraph refers to the amounts of projects, goods and services provisionally assessed in the tender documents by the tenderer when the price cannot be determined at the time of bidding for a general contract.

Article 30 For projects with complex technologies or for which precise technical specifications cannot be drawn up, a tenderer may carry out tender in two stages.

In the first stage, the bidder shall submit the technical proposals without quotation in accordance with the requirements of the tender announcement or the bid invitation, and the tenderee shall determine the technical standards and requirements and prepare the tender documents according to the technical proposals submitted by the bidder.

In the second stage, the tenderee shall provide the bidding documents to the bidders who submit technical suggestions in the first stage, and the bidders shall submit the bidding documents including the final technical scheme and tender offer according to the requirements of the bidding documents.

If a tenderer requires a bidder to submit a bid bond, it shall do so at the second stage.

Article 31 If a tenderer terminates his tender, he shall timely make a public announcement or notify in written form the potential bidders invited or those who have obtained pre-qualification documents or tender documents. If the pre-qualification documents and bidding documents have been sold or the bid bond has been collected, the tenderer shall timely refund the fees of the pre-qualification documents and bidding documents received, as well as the bid bond collected and the interest of bank deposits for the same period.

Article 32 A tenderer may not restrict or exclude any potential bidder or bidder with unreasonable conditions.

Where a tenderer commits any of the following acts, it shall be deemed to restrict or exclude potential bidders or bidders with unreasonable conditions:

(1) providing different project information to potential bidders or bidders for the same project subject to tender;

(2) The qualifications, technologies and business conditions set are not compatible with the specific characteristics and actual needs of the project subject to tender or are irrelevant to the performance of the contract;

(3) For projects subject to tender according to law, the achievements and awards of a specific administrative region or a specific industry shall be the conditions for additional marks or winning the bid;

(4) Adopting different standards for qualification examination or bid assessment for potential bidders or bidders;

(5) defining or designating a specific patent, trademark, brand, place of origin or supplier;

(6) illegally limiting potential bidders or their forms of ownership or organizational forms for projects subject to tender according to law;

(7) restricting or excluding potential bidders or bidders with other unreasonable conditions.

Chapter III Tender

Article 33 A bidder's participation in a project subject to tender according to law shall not be restricted by region or department, and no unit or individual may illegally interfere.

Article 34 Any legal person, other organization or individual having an interest relationship with the tenderer which may affect the fairness of the tender may not participate in the bid.

Where the person in charge of the unit is the same person or different units have holding or management relationships, they may not participate in the bidding for the same bid section or the bidding for the same project without divided bid sections.

Any bid in violation of the provisions of the preceding two paragraphs shall be invalid.

Article 35 If a bidder withdraws his bid documents already submitted, he shall notify the tenderer in writing before the bid deadline. If the bid inviter has collected the bid security, it shall refund it within 5 days from the date of receiving the written notice of withdrawal from the bidder.

If a bidder cancels the bid documents after the bid deadline, the tenderer may not refund the bid bond.

Article 36 The bid documents submitted by the applicant who fails to pass the pre-qualification examination shall be delivered late or not complied with