Regulation on the Implementation of the Bidding Law of China

           Area of Law： Construction Industry

Level of Authority： Administrative Regulations

Date issued：03-01-2017

Effective Date：03-01-2017

Status： Revised     

Issuing Authority： State Council

Regulation on the Implementation of the Bidding Law of China
(Promuglated by Order No. 613 of the State Council of the People's Republic of China on December 20, 2011; amended in accordance with the Decision of the State Council to Amend and Repeal Certain Administrative Regulations on March 1, 2017)
Chapter I General Provisions
Article 1 To regulate bidding activities, this Regulation is formulated in accordance with the Bidding Law of the People's Republic of China (hereinafter referred to as the “Bidding Law”).
Article 2 The term “construction projects” as mentioned in Article 3 of the Bidding Law means projects as well as goods and services related to project construction.
The term “projects” as mentioned in the preceding paragraph means construction projects, including new construction, refurbishing and expansion of buildings and fixtures and the relevant decorating, demolition and renovation of buildings and structures. The term “goods related to project construction” means equipment and materials which constitute an integral part of projects and are required for realizing the basic functions of projects. The term “services related to project construction” means services such as survey, design and supervision required for the completion of projects.
Article 3 The specific standards on the scope and size of construction projects that legally require bidding shall be determined by the development and reform department of the State Council jointly with the relevant departments of the State Council and be subject to the approval of the State Council before issuance and implementation.
Article 4 The development and reform department of the State Council shall guide and supervise the bidding work across the country and supervise and inspect the bidding activities for the state's major construction projects. The departments of industry and information technology, housing and urban-rural development, transport, railways, water resources and commerce of the State Council shall supervise the relevant bidding activities according to the prescribed division of functions.
The development and reform department of the local people's government at or above the county level shall guide and coordinate the bidding work of its administrative region. The relevant departments of the local people's government at or above the county level shall, according to the prescribed division of functions, supervise bidding activities, and legally investigate and deal with violations in bidding activities. Where the local people's government at or above the county level otherwise prescribes for the division of supervisory functions of its subordinate departments on the relevant bidding activities, such provisions shall prevail.
The public finance department shall, according to law, supervise the budgetary performance and the implementation of government procurement policies on government procurement construction projects that are subject to bidding.
The supervisory organ shall, according to law, supervise the relevant supervisory objects relevant to bidding activities.
Article 5 The local people's government at or above the level of a city divided into districts may, according to the actual demand, establish uniform and standardized trading venues to provide services for bidding activities. Such trading venues for bidding shall not be affiliated with administrative supervision departments and shall not be aimed at seeking profits.
The state encourages electronic bidding by means of an information network.
Article 6 State officials shall be prohibited from illegally interfering in bidding activities in any form.
Chapter II Bid Invitation
Article 7 With regard to projects for which project examination, approval and verification formalities must be handled according to the relevant provisions of the state and bidding is required according to law, the bidding scope, methods and organizational forms shall be reported to the department in charge of project examination, approval and verification for examination, approval and verification. The department in charge of project examination, approval and verification shall, in a timely manner, notify the relevant administrative supervision department of the bidding scope, methods and organizational forms determined upon examination, approval and verification.
Article 8 Projects for which state-owned funds take the controlling or leading position and bidding is required according to law shall be subject to public bidding. Selected bidding is permitted under any of the following circumstances:
1. only a small number of potential bidders are available for selection because of complicated technologies, special requirements or restrictions from the natural environment; or
2. the cost of adopting public bidding accounts for an excessively large proportion of the project contract amount.
Where the circumstances as listed in item 2 of the preceding paragraph occur to the projects prescribed in Article 7 of this Regulation, the department in charge of project examination, approval and verification shall make a determination when it conducts project examination, approval and verification. Other projects shall be determined by the relevant administrative supervision department upon receiving an application from the tenderee.
Article 9 In addition to the special circumstances under which bidding is not required as prescribed in Article 66 of the Bidding Law, a project is not required to undergo bidding under any of the following circumstances:
1. any irreplaceable patent or proprietary technology is required;
2. the project can be legally constructed, produced or provided by the purchaser;
3. the project can be legally constructed, produced or provided by the franchise project investor that has been selected through bidding;
4. it is necessary to purchase projects, goods or services from the original bid winner, otherwise the construction or supporting functions would be affected; or
5. any other special circumstance prescribed by the state.
Where the tenderee makes falsifications for the purpose of complying with the provisions of the preceding paragraph, the tenderee shall be deemed as evading bidding as prescribed in Article 4 of the Bidding Law.
Article 10 The tenderee having the capacity to prepare bid invitation documents and organize bid evaluations as prescribed in paragraph 2 of Article 12 of the Bidding Law means that the bidder has professionals in the areas of technology and economy who are suitable for the project's scale and the complexity of the bid invitation project.
Article 11 The qualification of bidding agencies shall be determined by the relevant department in accordance with the law and the provisions of the State Council.
The departments of housing and urban-rural development, commerce, development and reform, and industry and information technology of the State Council shall supervise and administer bidding agencies according to the prescribed division of functions.
Article 12 Bidding agencies shall have a certain number of professionals that have the corresponding capacity of preparing bidding documents and organizing bid evaluation, among others.
Article 13 Bidding agencies shall carry out bidding agency business within the scope of their licensed qualification and the scope entrusted by the tenderee, and no entity or individual shall interfere.
To conduct agency bidding business, a bidding agency shall abide by the Bidding Law and the provisions of this Regulation on the tenderee. No bidding agency shall bid in a bid invitation project under its agency or do so as an agency, or shall provide consulting to bidders for a bid invitation project under its agency.
No bidding agency shall alter, lease, lend or transfer a qualification certificate.
Article 14 The tenderee shall sign a written entrustment contract with the entrusted bidding agency, and fee standards prescribed in the contract shall comply with the relevant provisions of the state.
Article 15 For a project subject to public bidding, the bidding notice shall be issued and bid invitation documents shall be prepared in accordance with the provisions of the Bidding Law and this Regulation.
Where the tenderee examines the qualifications of potential bidders by means of pre-qualification, it shall issue a pre-qualification announcement and prepare pre-qualification documents.
The pre-qualification announcement and bidding notice on a project legally requiring bidding shall be published through the media legally designated by the development and reform department of the State Council. The content of a pre-qualification announcement or bidding notice on the same bid invitation project that is published on different media shall be consistent. No fee shall be charged for the issuance of the domestic pre-qualification announcement or bidding notice on a project legally requiring bidding through the designated media.
To prepare the pre-qualification documents and bid invitation documents on a project legally requiring bidding, the standard texts prepared by the development and reform department of the State Council jointly with the relevant administrative supervision department shall be adopted.
Article 16 The tenderee shall sell pre-qualification documents or bid invitation documents at the time and place prescribed in the pre-qualification announcement, bidding notice or bid invitation. Pre-qualification documents or bid invitation documents shall be sold for a period of not less than five days.
The fees charged by the tenderee for selling pre-qualification documents and bid invitation documents shall be limited to offsetting the cost of printing and postage, and shall not be aimed at seeking profits.
Article 17 The tenderee shall reasonably determine the time for the submission of pre-qualification application documents. The time for the submission of pre-qualification application documents on a project legally requiring bidding shall not be less than five days from the day when the sale of pre-qualification documents is stopped.
Article 18 Pre-qualification shall be conducted according to the standards and methods indicated in the pre-qualification documents.
With regard to projects for which state-owned funds take the controlling or leading position and bidding is required according to law, the tenderee shall establish a qualification examination committee to examine the pre-qualification application documents. The qualification examination committee and its members shall abide by the Bidding Law and the provisions of this Regulation on the bid evaluation committee and its members.
Article 19 After completion of pre-qualification, the tenderee shall, in a timely manner, issue a pre-qualification result notice to the pre-qualification applicant. An applicant that fails to pass pre-qualification shall not have the qualification to submit bids.
Where less than three applicants pass pre-qualification, the tenderee shall launch a new bid invitation.
Article 20 Where the tenderee examines the qualification of bidders by post-qualification, the bid evaluation committee shall examine the qualifications of bidders according to standards and methods prescribed in the bid invitation documents after opening the bids.
Article 21 The tenderee is allowed to make necessary clarifications or amendments on the issued pre-qualification documents or bid invitation documents. Where the clarified or amended content may affect the preparation of pre-qualification application documents or bidding documents, the tenderee shall notify all potential bidders that have obtained the pre-qualification documents or bid invitation documents in writing at least three days before the deadline for submitting pre-qualification application documents, or at least 15 days before the deadline for submitting bidding documents; and if such a time is less than the three or 15 day periods, the tenderee shall postpone the deadline for submitting the pre-qualification application documents or bidding documents.
Article 22 Where a potential bidder or any other interested party has any objection to the pre-qualification documents, it shall raise such an objection two days before the deadline for submitting the pre-qualification application documents; if it has any objection to the bid invitation documents, it shall raise such an objection 10 days before the deadline for submitting bidding documents. The tenderee shall give a reply within three days after receiving an objection; and suspend bidding activities before replying.
Article 23 Where the content of pre-qualification documents or bid invitation documents prepared by the tenderee violates any compulsory provision of laws and administrative regulations, or is against the principle of openness, fairness, impartiality or good faith, which affects the pre-qualification result or a potential bidders' submission of bids, the tenderee of a project legally requiring bidding shall launch a new bid invitation after amending the pre-qualification documents or bid invitation documents.
Article 24 Where the tenderee divides bid invitation projects into different stages, it shall abide by the relevant provisions of the Bidding Law, and it shall not restrict or exclude potential bidders by dividing stages. The tenderee shall not evade bidding by dividing stages for projects legally requiring bidding.
Article 25 The tenderee shall indicate the validity term of bids, which shall be calculated from the bidding document submission deadline, in the bid invitation documents.
Article 26 Where the tenderee requires bidders to provide a bid bond in the bid invitation documents, the bid bond shall not exceed 2% of the estimated value of the bid invitation project. The validity term of bid bonds shall be consistent with the validity term of bids.
Bid bonds submitted in the form of cash or check by a domestic entity bidding for a project legally requiring bidding shall be transferred from its basic account.
The tenderee shall not misappropriate the bid bonds.
Article 27 The tenderee may decide whether to prepare a base bid price. Each bid invitation project shall only have one base bid price. The base bid price must be kept confidential.
An intermediary that accepts entrustment to prepare the base bid price shall not participate in the bidding for a project whose base bid price is prepared by it upon entrustment, nor shall it prepare bidding documents or provide consulting for the bidder of such a project.
Where the tenderee has set a maximum bid price, it shall specify in the bid invitation documents the maximum bid price or the methods for calculating the maximum bid price. The tenderee shall not prescribe a minimum bid price.
Article 28 The tenderee shall not organize a single potential bidder or partial potential bidders to make an on-site investigation of a project site.
Article 29 The tenderee may, according to law, carry out overall contracting bidding for all or a portion of the projects and the goods and services relevant to project construction. Where the projects, goods and services at temporarily evaluated prices within the overall contracting scope fall under the scope of projects legally requiring bidding and reach the standards regarding scale as required by the state, the tenderee shall invite bids according to law.
The term “temporarily evaluated price” as mentioned in the preceding paragraph means the value of projects, goods and services that cannot be determined in the overall contracting bidding and is thereby temporarily evaluated by the tenderee in the bid invitation documents.
Article 30 The tenderee may invite bids in two stages if the project has complicated technologies or its technical specifications cannot be precisely formulated.
At the first stage, the bidders shall submit technical suggestions without quotation according to the requirements of the bidding notice or bid invitation, and the tenderee shall determine the technical standards and requirements according to the technical suggestions submitted by the bidders and prepare bid invitation documents.
At the second stage, the tenderee shall provide bid invitation documents to the bidders that submitted technical suggestions at the first stage, and the bidders shall submit bidding documents including the final technical plans and bidding prices according to the requirements of the bid invitation documents.
Where the tenderee requires the bidders to provide a bid bond, it shall put forward such requirements at the second stage.
Article 31 Where the tenderee terminates a bid invitation, it shall make an announcement in a timely manner, or notify in writing the potential bidders that have been invited or have obtained pre-qualification documents and bid invitation documents. Where the tenderee has sold pre-qualification documents and bid invitation documents or has collected a bid bond, the tenderee shall refund the fees charged for pre-qualification documents and bid invitation documents in a timely manner, as well as the charged bid bond and the bank deposit interest over the same period.
Article 32 The tenderee shall not, with unreasonable conditions, restrict or exclude bidders or potential bidders.
Where the tenderee commits any of the following conduct, it shall be deemed as restricting or excluding bidders or potential bidders with unreasonable conditions:
1. provides different information on the same bid invitation project to bidders or potential bidders;
2. the determined qualification, technical or business conditions do not meet the specific features and actual demands of the bid invitation project or are irrelevant to the performance of the contract;
3. for a project legally requiring bidding, the tenderee regards the performance or awards of the specific administrative region or specific industry as a condition for earning extra marks or for winning the bid;
4. adopts different qualification examination or bid evaluation standards for bidders or potential bidders;
5. restricts or designates specific patents, trademarks, brands, countries of origin or suppliers;
6. illegally restricts the ownership or organizational form of bidders or potential bidders for a project legally requiring bidding; or
7. restricts or excludes bidders or potential bidders with other unreasonable conditions.
Chapter III Bidding
Article 33 Bidders participating in bidding for a project legally requiring bidding shall not be subject to district or departmental restrictions, and no entity or individual shall interfere.
Article 34 No legal person, other organization or individual that is an interested party to the tenderee and that may affect bid impartiality shall participate in bidding.
Different entities that have the same person in charge or have holding or management relations shall not participate in the submission of bids at the same stage or the same bid invitation project not divided into different stages.
Where any entity violates the provisions of the preceding two paragraphs, the relevant bidding shall all be invalid.
Article 35 Where a bidder withdraws bidding documents that have been submitted, it shall notify the tenderee in writing before the deadline for bidding. Where the tenderee has collected the bid bond, it shall refund the bid bond within five days after receiving a written withdrawal notice from the bidder.
Where a bidder withdraws bidding documents after the deadline for bidding, the tenderee may not refund the bid bond.
Article 36 The tenderee shall refuse to accept bidding documents submitted by any applicant that fails to pass pre-qualification, bidding documents that are served after exceeding the required time limit or bidding documents that fail to be sealed according to the requirements of bid invitation documents.
The tenderee shall faithfully record the time when bidding documents are served and the sealing thereof, and shall file the record for future reference.
Article 37 The tenderee shall indicate whether it accepts a consortium bid in the pre-qualification announcement, bidding notice or bid invitation.
Where the tenderee accepts a consortium bid and conducts pre-qualification, the consortium shall be formed prior to the submission of pre-qualification application documents. Where a consortium increases or decreases or changes its members after pre-qualification, the bid submitted by it shall be invalid.
Where all parties of a consortium independently bid in their own names for the same bid invitation project or participate in any other consortium bid, the relevant bid shall all be invalid.
Article 38 Where the bidder merges, splits, goes bankrupt or has any other material change, it shall notify the tenderee in writing in a timely manner. Where the bidder no longer has the qualification conditions prescribed in the pre-qualification documents or bid invitation documents or its bidding may affect bid impartiality, the bid submitted by it shall be invalid.
Article 39 Bidders shall not submit bids in collusion.
It shall be deemed as bidder collusion under any of the following circumstances:
1. bidders negotiate with each other on setting bidding prices or any other substantive content of the bidding documents;
2. bidders agree on the bid winner;
3. bidders agree beforehand that some bidders abandon bidding or win the bid;
4. bidders of the same group, association, chamber of commerce or any other organization collaborate with each other in bidding by demand of such organizations; or
5. bidders take other joint actions for the purpose of winning bids or excluding specific bidders.
Article 40 It shall be deemed as bidder collusion under any of the following circumstances:
1. bidding documents of different bidders are prepared by the same entity or individual;
2. different bidders entrust the same entity or individual to handle bidding matters;
3. the project manager indicated in the bidding documents of different bidders is the same person;
4. bidding documents of different bidders are abnormally consistent or there are regular differences in the bidding prices;
5. bidding documents of different bidders are mingled with each other; or
6. bid bonds of different bidders are transferred from the account of the same entity or individual.
Article 41 Collusion between the tenderee and any bidder in bidding shall be prohibited.
It shall be deemed as collusion between the tenderee and the bidder under any of the following circumstances:
1. the tenderee opens bidding documents before opening bids and discloses relevant information to other bidders;
2. the tenderee discloses the base bid price or information on a member of the bid evaluation committee in a direct or indirect manner;
3. the tenderee explicitly or implicitly suggests that a bidder lower or raise the bidding price;
4. the tenderee induces a bidder to replace or amend the bidding documents;
5. the tenderee explicitly or implicitly suggests that bidders provide an accommodation which would allow a specific bidder to win the bid; or
6. the tenderee colludes with bidders in any other form for the purpose of causing a specific bidder to win the bid.
Article 42 Where a bidder submits a bid with a qualification or qualification certificate obtained in such forms as an assignment or lease, it shall be deemed as bidding in the name of other persons as prescribed in Article 33 of the Bidding Law.
Where the bidder falls under any of the following circumstances, it shall be deemed as “attempting to win the bid through other fraudulent means” as prescribed in Article 33 of the Bidding Law:
1. uses a forged or fabricated licensing certificate;
2. provides false information on its financial situation or performance;
3. provides false resumes or labor relation certificates regarding the project leader or major technicians;
4. provides false information on credit status; or
5. makes falsifications in any other form.
Article 43 An applicant that submits pre-qualification application documents shall abide by the Bidding Law and the relevant provisions of this Regulation on bidders.
Chapter IV Opening, Evaluation and Winning of Bid
Article 44 The tenderee shall open bids at the time and place prescribed in the bid invitation documents.
No bid shall be opened if there are less than three bidders, and the tenderee shall launch a new bid invitation.
Where any bidder has any objection to bid opening, it shall raise such an objection at the bid opening site, and the tenderee shall provide a reply on the spot and make records.
Article 45 The state shall apply uniform expertise classification standards and management measures for bid evaluation experts. The specific standards and measures shall be formulated by the development and reform department of the State Council jointly with the relevant departments of the State Council.
The provincial people's governments and the relevant departments of the State Council shall establish a comprehensive bid evaluation expert database.
Article 46 Except for the special bid invitation projects prescribed in paragraph 3 of Article 37 of the Bidding Law, the expert members of the bid evaluation committee for a project legally requiring bidding shall be randomly selected from a list of experts with corresponding specialties in the bid evaluation expert database. No entity or individual shall explicitly or implicitly designate that certain expert members participate in the bid evaluation committee or do so in any disguised form.
The tenderee of a project legally requiring bidding shall not change a legally determined member of the bid evaluation committee unless it is for a reason prescribed in the Bidding Law and this Regulation. The replacement of expert members of the bid evaluation committee shall be governed by the provisions of the aforesaid paragraph.
Where any member of the bid evaluation committee is an interested party of the bidder, such a member shall voluntarily withdraw.
The relevant administrative supervision department shall, according to the prescribed division of functions, supervise the methods for determining the members of the bid evaluation committee, the selection of bid evaluation experts and bid evaluation activities. The officials of the administrative supervision department shall not work as the member of the bid evaluation committee of a project which is under the supervision of the said administrative supervision department.
Article 47 The term “special bid invitation projects” as mentioned in paragraph 3 of Article 37 of the Bidding Law means projects that have complicated technologies, are highly professional or for which the state has special requirements and for which it is difficult to ensure competent bid evaluation by randomly selected experts.
Article 48 The tenderee shall provide the bid evaluation committee with the necessary information required for bid evaluation, but shall not explicitly or implicitly suggest a preference for or the exclusion of a specific bidder.
The tenderee shall reasonably determine the bid evaluation time according to the project scale, technical complexity and other factors. Where more than one third of the members of the bid evaluation committee deem that the time set for bid evaluation is insufficient, the tenderee shall extend the time in an appropriate manner.
Where a member of the bid evaluation committee cannot, during the bid evaluation process, continue to evaluate bids due to withdrawal, or absence from the evaluation without approval or health problems, such a member shall be replaced in a timely manner. An examination conclusion made by a replaced member of the bid evaluation committee shall be invalid, and the new member that has replaced the former member of the bid evaluation committee shall conduct the examination anew.
Article 49 The members of the bid evaluation committee shall, according to the provisions of the Bidding Law and this Regulation as well as the bid evaluation standards and methods prescribed in the bid invitation documents, put forward examination opinions on the bidding documents in an objective and impartial manner. The bid evaluation standards and methods that are not prescribed in the bid invitation documents shall not be deemed as the basis for bid evaluation.
The members of a bid evaluation committee shall not have private contact with bidders, shall not accept any money or property or other benefits from bidders, shall not consult with the tenderee in terms of its intent in determining a bid winner, shall not accept the explicit or implicit preferences proffered by any entity or individual or its or his requirements for excluding a specific bidder, and shall not perform duties in a way that is not objective or impartial.
Article 50 If there is a base bid price for a bid invitation project, the tenderee shall announce such a price when opening the bid. The base bid price shall only be considered as a reference for bid evaluation; whether the bidding price is close to the base bid price shall not be considered as a condition for winning the bid, and whether the bidding price exceeds the floating range of the base bid price shall not be considered as a condition for rejecting the bid.
Article 51 The bid evaluation committee shall reject the bid under any of the following circumstances:
1. the bidding documents have not been affixed with the seal of the bidding entity and the signature of the person in charge of the entity;
2. the bidding consortium fails to submit a joint bidding agreement;
3. the bidder fails to satisfy the qualification requirements prescribed by the state or the bid invitation documents;
4. the same bidder submits two or more different bidding documents or bidding prices, unless the bid invitation documents require the submission of alternative bidding documents;
5. the bidding price is lower than the cost or higher than the maximum bid price set forth in the bid invitation documents;
6. the bidding documents fail to provide a response to the substantive requirements and conditions that are specified in the bid invitation documents; or
7. the bidder colludes with any other bidder in the submission of a bid, makes falsifications, offers bribes or commits any other illegal conduct.
Article 52 Where the bid evaluation committee deems it necessary for a bidder to make necessary clarifications or explanations regarding any ambiguous content, or clear typographical errors or miscalculations within bidding documents, it shall notify such bidder in writing. The clarifications or explanations shall be made by the bidder in writing, and shall not exceed the scope of the bidding documents or change any substantive content of the bidding documents.
The bid evaluation committee shall not suggest that a bidder should make clarifications or explanations or induce a bidder to do so, and shall not accept clarifications or explanations voluntarily made by a bidder.
Article 53 After the completion of a bid evaluation, the bid evaluation committee shall submit a written bid evaluation report and a list of bid winning candidates to the tenderee. There shall be no more than three bid winning candidates and their sequence shall be marked.
The bid evaluation report shall be signed by all members of the bid evaluation committee. The members of the bid evaluation committee who have different opinions on the bid evaluation results shall give explanations on their different opinions and reasons in writing, and the bid evaluation report shall indicate the different opinions. Where the members of the bid evaluation committee refuse to sign on the bid evaluation report and fail to provide written explanations on their different opinions and reasons, they shall be deemed as having agreed with the bid evaluation results.
Article 54 For a project legally requiring bidding, the tenderee shall announce bid winning candidates within three days from receiving the bid evaluation report, and the announcement period may not be less than three days.
Where a bidder or any other interested party has any objection to the bid evaluation results of a project legally requiring bidding, it shall raise such an objection during the candidate announcement period. The tenderee shall issue a reply within three days after receiving an objection, and suspend all bidding activities before issuing the reply.
Article 55 For a project for which state-owned funds take the controlling or leading position and bidding is required according to law, the tenderee shall determine the candidate ranking first as the bid winner. Where the candidate ranking first as the bid winner waives the bid winning, or such a candidate fails to meet the conditions for winning the bid as a result of failing to perform the contract due to force majeure, or failing to submit a performance bond according to the requirements of the bid invitation documents, or being found to have committed any illegal act that affects the bid winning result, the tenderee may determine another candidate as the bid winner according to the sequence of candidates in the list of bid wining candidates provided by the bid evaluation committee, or the tenderee may launch a new bid invitation.
Article 56 Where a bid wining candidate has any significant change in terms of its business operations or financial status or commits any other illegal act, which, in the opinion of the tenderee, may affect its ability to perform the contract, the original bid evaluation committee shall, before sending a bid winning notice, conduct examination and confirmation according to the standards and methods prescribed in the bid invitation documents.
Article 57 The tenderee and the bid winner shall sign a written contract according to the provisions of the Bidding Law and this Regulation, and the main clauses such as subject matter of the contract, payment, quality and time limit for the performance of the contract shall be consistent with the content in the bid invitation documents and the bidding documents of the bid winner. The tenderee and the bid winner shall not thereafter sign any other agreement that runs contrary to the substantive content of the contract.
The tenderee shall, at the latest within five days after signing a written contract, refund the bid bond and the bank deposit interest over the same period to the bid winner and the bidders that fail to win the bid.
Article 58 Where a bid winner is required to submit a performance bond according to the bid invitation documents, the bid winner shall do so according to the requirements of the bid invitation documents. The performance bond shall not exceed 10% of the project price in the winning bid.
Article 59 A bid winner shall fulfill its obligations as provided in the contract and complete the bid winning project. A bid winner shall neither transfer the project that it has won to any other person, nor do so after dividing the project.
A bid winner may, as provided in the contract or upon consent of the tenderee, subcontract the non-principal and non-key parts of the project that it has won to another person for fulfillment. Anyone accepting the subcontract shall satisfy the corresponding qualification requirements and may not further subcontract the part that has been subcontracted to it.
The bid winner shall be responsible to the tenderee for the subcontracted project, and those accepting the subcontracted parts of the project shall assume joint and several liability for the subcontracted parts they have accepted.
Chapter V Complaints and Handling
Article 60 Where a bidder or any other interested party deems that the bidding activities fail to comply with the provisions of any law or administrative regulation, it shall file a complaint with the relevant administrative supervision department within ten days after it knows or should have known of the violation. There shall be specific claims and necessary certification documents with the complaint.
Where a bidder or any other interested party files a complaint on any matter prescribed in Article 22, 44 or 54 of this Regulation, it shall first raise an objection with the tenderee, and the period for providing a reply to the objection shall not be included in the time limit prescribed in the preceding paragraph.
Article 61 Where the complainant files a complaint on the same matter with two or more administrative supervision departments that have the authority to accept the complaint, the administrative supervision department that first receives the complaint shall be responsible for handling the complaint.
The administrative supervision department shall decide whether to accept a complaint within three working days after receiving the complaint, and it shall issue a written handling decision within 30 working days after accepting the complaint, excluding the time needed for inspection, testing, authentication and expert review.
Where the complainant fabricates facts, forges materials or obtains certification materials by any other illegal means for the purpose of filing a complaint, the administrative supervision department shall reject the complaint.
Article 62 When the administrative supervision department handles a complaint, it shall be entitled to consult and copy the relevant documents and materials, investigate the relevant information, and the relevant entities and personnel shall be cooperative. When necessary, the administrative supervision department may order the suspension of bidding activities.
The personnel of the administrative supervision department shall, according to law, keep confidential national secrets and trade secrets obtained during supervision and inspection.
Chapter VI Legal Liability
Article 63 Where the tenderee commits any of the following conduct to restrict or exclude potential bidders, the relevant administrative supervision department shall punish the tenderee according to the provisions of Article 51 of the Bidding Law:
1. the tenderee fails to make a pre-qualification announcement or bidding notice for a project requiring public bidding through the designated media as required; or
2. the content of the pre-qualification announcement or bidding notice on the same bid invitation project published through different media are inconsistent with each other, which affects the pre-qualification application or bidding of potential bidders.
Where the tenderee of a project legally requiring bidding fails to make a pre-qualification announcement or bidding notice as required, constituting the evasion of bidding, the tenderee shall be punished according to Article 49 of the Bidding Law.
Article 64 Where the tenderee falls under any of the following circumstances, the relevant administrative supervision department shall order it to make correction, and may impose on it a fine of not more than 100,000 yuan:
1. it adopts selected bidding for a project requiring public bidding;
2. the time limit for the sale, clarification and amendment of the bid invitation documents and pre-qualification documents or the determined time limit for submitting pre-qualification application documents and bidding documents fails to comply with the provisions of the Bidding Law and this Regulation;
3. it accepts a bid submitted by an entity or individual failing to pass the pre-qualification; or
4. it accepts the bidding documents that are to be rejected.
Where the tenderee commits any of the conduct listed in item 1, 3 or 4 of the preceding paragraph, the person directly in charge and other directly liable persons of the entity shall be subject to disciplinary actions according to law.
Article 65 Where a bidding agency bids for a bid invitation project under its agency or does so as an agency, or provides consulting to any project bidder, or an intermediary accepting entrustment to prepare a base bid price participates in the bidding for a project for which it has prepared the base bid price or prepares bidding documents or provides consulting to any bidder of this project, it shall be subject to legal liability according to Article 50 of the Bidding Law.
Article 66 Where the tenderee charges a bid bond or a performance bond exceeding the proportion prescribed in this Regulation or fails to refund a bid bond and the bank deposit interest over the same period as required, the relevant administrative supervision department shall order it to make correction, and may impose on it a fine of not more than 50,000 yuan; and if loss is caused to any other person, the tenderee shall assume liability for compensation according to law.
Article 67 Where bidders submit bids in collusion or any bidder colludes with the tenderee in bidding, or any bidder offers bribes to the tenderee or any member of the bid evaluation committee to win the bid, the bid winning shall be invalid; if any crime is constituted, the violator shall be subject to criminal liability according to law; and if no crime is constituted, the violator shall be punished according to Article 53 of the Bidding Law. Where the bidder fails to win the bid, the fine imposed on the entity shall be calculated on the basis of the bid invitation contract amount according to the proportion prescribed in the Bidding Law.
Where a bidder commits any of the following conduct, which is deemed as a serious circumstance according to Article 53 of the Bidding Law, the relevant administrative supervision department shall cancel, for one to two years, its qualification to bid for projects legally requiring bidding:
1. wins a bid by offering bribes;
2. submits bids in collusion for two times or more within a period of three years;
3. its collusion in bidding impairs the legitimate rights and interests of the tenderee, any other bidders, the state, collectives or citizens, and causes a direct economic loss of 300,000 yuan or more; or
4. colludes in bidding in any other form, and the circumstances are serious.
Where a bidder commits again any illegal conduct as mentioned in paragraph 2 of this Article within three years from the date of expiry of the time limit for executing the punishment as mentioned in this paragraph, or colludes in bidding or seeks bid winning by offering bribes with particularly serious circumstances, the industrial and commercial administration shall revoke the bidder's business license.
Where the punishment on collusion in bid price offering is otherwise prescribed in any law or administrative regulation, the relevant provisions shall prevail.
Article 68 Where a bidder bids in the name of any other person or makes falsifications to win a bid in any other form, the bid winning shall be invalid; if any crime is constituted, the bidder shall be subject to criminal liability according to law; and if no crime is constituted, the bidder shall be punished according to Article 54 of the Bidding Law. Where the bidder of a project legally requiring bidding fails to win the bid, the fine imposed on the entity shall be calculated on the basis of the bid invitation contract amount according to the proportion prescribed in the Bidding Law.
Where a bidder commits any of the following conduct, which is deemed as a serious circumstance according to Article 54 of the Bidding Law, the relevant administrative supervision department shall cancel, for one to three years, its qualification to bid for projects legally requiring bidding:
1. forges or fabricates a qualification or qualification certificate or any other license to win a bid;
2. submits a bid in the name of any other person for two times or more within a period of three years;
3. makes falsifications to win a bid, which causes direct economic loss of 300,000 yuan or more to the tenderee; or
4. wins a bid by any other fraudulent means, and the circumstances are serious.
Where the bidder commits any illegal conduct as mentioned in paragraph 2 of this Article within three years from the date of expiry of the time limit for executing the punishment as mentioned in this paragraph, or makes falsifications to win a bid with particularly serious circumstances, the industrial and commercial administration shall revoke its business license.
Article 69 Where anyone assigns or leases a qualification or qualification certificate to any other person for the latter's bidding, it shall be subject to administrative punishments according to the provisions of laws and administrative regulations; and if any crime is constituted, it shall be subject to criminal liability according to law.
Article 70 Where the tenderee of a project legally requiring bidding fails to form a bid evaluation committee as required, or determines or replaces any member of the bid evaluation committee in violation of the provisions of the Bidding Law or this Regulation, the relevant administrative supervision department shall order it to make correction, may impose a fine of not more than 100,000 yuan on the tenderee, and impose disciplinary actions on the person directly in charge and other directly liable persons of the entity according to law; the examination conclusion made by a member of the bid evaluation committee who is illegally determined or has illegally replaced a former one shall be invalid, and examination shall be conducted again according to law.
A state official who illegally interferes in the selection of members of the bid evaluation committee in any form shall be subject to legal liability according to Article 81 of this Regulation.
Article 71 Where any member of the bid evaluation committee commits any of the following conduct, the relevant administrative supervision department shall order correction; if the circumstances are serious, it shall prohibit the said member from participating in the bid evaluation for projects legally requiring bidding for a fixed time limit; and if circumstances are particularly serious, his or her qualification as a member of the bid evaluation committee shall be cancelled:
1. the member should have withdrawn;
2. the member is absent in the evaluation without approval;
3. the member fails to evaluate bids according to the bid evaluation standards and methods prescribed in the bid invitation documents;
4. the member has private contact with any bidder;
5. the member consults with the tenderee in terms of its intent in determining a bid winner or accepts an explicit or implicit preference for any entity or individual or accepts requirements for excluding a specific bidder;
6. the member fails to put forward opinions on rejecting a bid when that bid is to be rejected;
7. the member explicitly or implicitly suggests that a bidder make clarifications or explanations or receives clarifications or explanations voluntarily made by a bidder; or
8. the member performs duties in any other way that is not objective or impartial.
Article 72 Where any member of the bid evaluation committee accepts money or property or any other benefits from a bidder, the money or property shall be confiscated, the member shall be subject to a fine of 3,000 yuan to 50,000 yuan, his or her qualification as a member of a bid evaluation committee shall be revoked, and the member shall not participate in the bid evaluation of projects legally requiring bidding; and if any crime is constituted, the member shall be subject to criminal liability according to law.
Article 73 Where the tenderee of a project legally requiring bidding falls under any of the following circumstances, the relevant administrative supervision department shall order it to make correction according to law, may impose a fine of not more than 10‰ of the project price of the winning bid; and if loss is caused to any other person, the tenderee shall assume liability for compensation according to law; and the person directly in charge and other directly liable persons of the entity shall be subject to disciplinary actions according to law:
1. fails to issue a bid winning notice without a justified reason;
2. fails to determine the bid winner as required;
3. changes the bid winning results without a justified reason after issuing the bid winning notice;
4. fails to sign a contract with the bid winner without a justified reason; or
5. puts forward additional conditions to the bid winner when signing a contract.
Article 74 Where the bid winner fails to conclude a contract with the tenderee without a justified reason, or puts forward additional conditions to the tenderee when signing a contract, or fails to submit the performance bond according to the requirements of the bid invitation documents, its qualification for winning the bid shall be revoked and the bid bond shall not be refunded. If it is a bid winner of a project legally requiring bidding, it shall be ordered by the relevant administrative supervision department to make correction, and may be subject to a fine of not more than 10‰ of the project price in the winning bid.
Article 75 Where the tenderee and the bid winner fail to conclude a contract according to the bid invitation documents and the bidding documents of the bid winner, or the main clauses are inconsistent with the content in the bid invitation documents and the bidding documents of the bid winner, or the tenderee and the bid winner sign an agreement that runs contrary to the substantive content of the contract, the relevant administrative supervision department shall order them to make correction, and may impose on them a fine of 5‰ to 10‰ of the project price in the winning bid.
Article 76 Where the bid winner transfers the project that it has won to any other person, or does so after dividing the said project, or subcontracts some principal or key parts of the project that it has won to another person in violation of the provisions of the Bidding Law or this Regulation, or the subcontractor further subcontracts the project, the transfer or subcontract shall be invalid, and the bid winner shall be subject to a fine of 5‰ to 10‰ of the project price. If the bid winner has any illegal income therefrom, its illegal income shall be concurrently confiscated; and it may be ordered to cease business operations for rectification; and if the circumstances are serious, the industrial and commercial administration shall revoke its business license.
Article 77 Where the bidder or any interested party fabricates facts, forges materials or obtains certification materials by any other illegal means for the filing of a complaint, which thereby causes loss to any other person, the violator shall assume liability for compensation according to law.
Where the tenderee fails to provide a reply to an objection as required and continues the bidding activities, the relevant administrative supervision department shall order it to make correction; if the tenderee refuses to make correction, or the correction could not be made, and as a result the bid winning results are affected, the tenderee shall be punished according to Article 82 of this Regulation.
Article 78 The state shall establish a bidding and tendering integrity system. The relevant administrative supervision department shall, according to law, announce the administrative handling decisions on the violations of the parties concerned such as the tenderee, the bidding agency, the bidder and the members of the bid evaluation committee.
Article 79 Where the department in charge of project examination, approval and verification fails to examine or verify the project bidding scope, method or organizational form, the person directly in charge and other directly liable persons of the entity shall be subject to disciplinary actions according to law.
Where the relevant administrative supervision department fails to perform its duties according to law, fails to investigate and deal with the violations of the provisions of the Bidding Law or this Regulation, fails to deal with complaints as required, or fails to announce the administrative handling decision on the violation of a party related to bid invitation and bidding according to law, the person directly in charge and other directly liable persons of the department shall be subject to disciplinary actions according to law.
Where any official of the department in charge of project examination, approval or verification or of the relevant administrative supervision department engages in malfeasance for illegal gains, abuses power or neglects duties, which constitutes a crime, he or she shall be subject to criminal liability according to law.
Article 80 Any state official who illegally interferes in the bidding activities in any direct or indirect, explicit or implicit manner under any of the following circumstances shall be subject to the disciplinary action of demerit or major demerit; be subject to the disciplinary action of demotion or removal from office if the circumstances are serious; or be subject to the disciplinary action of dismissal if the circumstances are particularly serious; and if any crime is constituted, shall be subject to criminal liability according to law:
1. requiring the non-bid-invitation of a project legally requiring bidding, or requiring the non-public bidding for a project requiring public bidding;
2. requiring any member of the bid evaluation committee or the tenderee to select the bidder designated thereby as a bid winning candidate or the bid winner, or interfering in the bid evaluation activities in any other form, which affects the bid winning results; or
3. illegally interfering in the bidding and tendering activities in any other form.
Article 81 Where the bidding and tendering activities of a project legally requiring bidding violate any provision of the Bidding Law or this Regulation, which have substantially affected the bid winning results, and no remedy measures have been taken for correction, the bid invitation, bidding and bid winning shall be invalid, and a new bid invitation or bid evaluation shall be launched according to law.
Chapter VII Supplementary Provisions
Article 82 Tendering and bidding associations shall carry out activities according to the bylaws formulated according to law, and strengthen industry self-discipline and services.
Article 83 Where the bidding for the government procurement of goods and services is otherwise prescribed by any law or administrative regulation on government procurement, such provisions shall prevail.
Article 84 This Regulation shall come into force on February 1, 2012.