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Measures for the Bid Invitation and Bid Tendering for Construction and Engineering Projects - 2003
Order of the State Development Planning Commission, the Ministry of Construction, the Ministry of Railway, the Ministry of Communications, the Ministry of Information Industry, the Ministry of Water Resources and Civil Aviation Administration of China
(Docket No.30)
In order to regulate the bid invitation activities for construction of engineering projects and in accordance with the Bidding Law of the People’s Republic of China and the division of functions of the relevant departments under the State Council, the State Development Planning Commission, the Ministry of Construction, the Ministry of Railway, the Ministry of Communications, the Ministry of Information Industry, the Ministry of Water Resources and Civil Aviation Administration of China adopted the Measures for the Bid Invitation and Bid Tendering for Construction of Engineer Projects through discussion, which are hereby promulgated and shall come into force on May 1, 2003.
Zeng Peiyan, Director of the State Development Planning Commission
Wang Guangtao, Minister of the Ministry of Construction
Fu Zhihuan, Minister of the Ministry of Railway
Zhang Chunxian, Minister of the Ministry of Communications
Wu Jichuang, Minister of the Ministry of Information Industry
Wang Sucheng, Minister of the Ministry of Water Resources
Yang Yuanyuan, Director of the Civil Aviation Administration of China
March 8, 2003
Measures for the Bid Invitation and Bid Tendering for Construction and Engineering Projects
Chapter 1 General Provisions
Article 1 In order to regulate the bid invitation activities for construction of engineering projects (hereinafter referred to as project construction), the present Measures are enacted in accordance with the Bidding Law of the People’s Republic of China and the division of functions of the relevant departments under the State Council.
Article 2 Any activities of bid invitation for project construction within the People’s Republic of China shall be governed by the present Measures.
Article 3 The engineering projects that comply with the scope and standards fixed by the Provisions on the Tendering Scope and Scale Standards of Engineering Projects (Order No.3 of the State Development Planning Commission) must select the construction entities through bid invitation.
No entity or individual may split a project subject to bid invitation pursuant to law into parts, or avoid the bid invitation by any other means.
Article 4 The principles of openness, fairness, justice and good faith must be observed in the activities of bid invitation for project construction.
Article 5 The activities of bid invitation for project construction shall be under the charge of the tenderee pursuant to law. No entity or individual may, by any means, illegally intervene with the activities of bid invitation for project construction.
The activities of bid invitation for project construction shall not be restricted on the ground of areas or departments.
Article 6 The departments of development planning, economy and trade, construction, railway, communications, information industry, water resources, foreign trade and economic cooperation, and civil aviation, etc. at various levels shall, according to the division of their functions set forth by the Circular of the General Office of the State Council on Distributing the Opinions on the Division of Functions of the Relevant Departments under the State Council in Administrative Supervision over Bidding Activities (Docket No.34 [2000] of the General Office of the State Council) and by the localities, supervise the project construction bid invitation activities, and investigate and punish the illegal acts therein pursuant to law.
Chapter 2 Invitation to Tender
Article 7 The tenderee of project construction shall be the legal person or other organization that proposes the project of construction bid invitation and that invite tenders pursuant to law.
Article 8 An engineering project subject to bid invitation shall meet the following conditions to carry out the construction bid invitation:
1) The tenderee has been established according to law;
2) Where examination and approval formalities are required for preliminary design and budgetary estimation, the approval has been obtained;
3) Where ratification formalities are required for the scope, method and organizational form of the bid invitation, approval has been obtained;
4) Having the corresponding fund or the source of fund has been confirmed;
5) Having the design drawings and technical materials needed for the bid invitation.
Article 9 Project construction bid invitation is divided into open bid invitation and requested bid invitation.
Article 10 For an engineering construction subject to construction bid invitation pursuant to law, if the bid invitation shall be submitted to the department that examined and approved the project for examination and approval according to the provisions, the tenderee must submit the relevant bid invitation contents of the bid invitation in the feasibility study report to the department that examined and approved the project for ratification, such as scope, method and organizational form of bid invitation.
Article 11 Open bid invitation shall be carried out with respect to the key construction projects of the state determined by the department of development planning under the State Council, and the key construction projects of the localities determined by the people’s governments of the provinces, autonomous regions and municipalities directly under the Central Government, as well as the construction projects that are completely financed by state-owned capital or in which state-owned capital occupies the controlling or dominant position; and requested bid invitation may be carried out upon approval in any of the following situations:
1) The project needs complex technologies or has other special requirements, and there are only a few potential tenderers available for selection;
2) The project is restricted by natural and geographic environment;
3) The project involves state security, state secret or disaster rescue, and is fit for bid invitation but not for open bid invitation;
4) The value of the project is not worth the costs of the open bid invitation to be carried out;
5) Other situations that are unfit for open bid invitation as provided by laws and regulations.
Requested bid invitation for the key construction projects of the state shall be subject to the approval of the department of development planning under the State Council; and requested bid invitation for the key construction projects of the localities shall be subject to the approval of the people’s governments of the provinces, autonomous regions and municipalities directly under the Central Government.
With respect to the construction projects that are completely financed by state-owned capital or in which state-owned capital occupies the controlling or dominant position and that are subject to examination and approval, the requested bid invitation shall be subject to the approval of the department that examined and approved the project, however, where that department is only in charge of examination and approval of the establishment of the project, the examination and approval shall be made by the relevant administrative supervision department.
Article 12 Where an engineering project subject to examination and approval is in any of the following situations, it may carry out no bid invitation for construction upon approval of the examination and approval department specified in Article 11 of the present Measures.
1) The project is unfit for bid invitation as it involves state security, state secret or disaster rescue;
2) The project needs the labor of farmers as it uses poverty-relief fund and replaces aid by work;
3) The main construction technologies employed involve certain patents or know-how;
4) The project is constructed and used by the construction enterprise itself, and the qualification grade of that construction enterprise meets the project requirements;
5) Where any small attached project or main body extension project is added to the project under construction, the original bid winner still have the contracting capacity;
6) Other situations provided for by laws and administrative regulations.
Where an engineering project not subject to examination and approval but subject to bid invitation is in any of the situations provided for in the preceding paragraph, it may be allowed not to carry out any bid invitation.
Article 13 In case of open bid invitation, the tenderee shall issue announcements on bid invitation, inviting unspecified legal persons or other organizations to tender bids. With respect to an engineering project subject to construction bid invitation pursuant to law, the announcement on bid invitation shall be published in the newspapers and periodicals and information networks designated by the state.
In case of requested bid invitation, the tenderee shall issue the letters of bid invitation to 3 or more specified legal persons or other organizations with the capacity to undertake the project of construction bid invitation and with good credit standing.
Article 14 An announcement on bid invitation or letter of bid invitation shall indicate at least the following information:
1) Name and address of the tenderee;
2) Contents, scale and fund source of the project of bid invitation;
3) Construction place and period of the project of bid invitation;
4) Place and time for obtaining the tender documents or the preliminary qualification documents;
5) Charges collected for the tender documents or preliminary qualification documents;
6) Requirements on the qualification grade of the tenderer.
Article 15 The tenderee shall sell the tender documents or pre-qualification documents at the time and place as set forth in the announcement on bid invitation or the tender invitation. It shall be no shorter than 5 workdays from the day of sale of the tender documents or pre-qualification documents to the day of stop of the sale.
The tenderee may issue the tender documents through information networks or other medium, the tender documents issued through information networks or other medium have the same legal binding force as that of written tender documents, however, in case of inconsistence, the written tender documents shall prevail. The tenderee shall keep intact the original of the written tender documents.
The charges collected for tender documents or pre-qualification documents shall be reasonable and may not be profit-making. With respect to the design documents attached, the tenderee may collect deposits from the tenderer; where the tenderer returns the design documents after the tender is opened, the tenderee shall return the deposits to the tenderer.
Tender documents and pre-qualification documents shall not be returned after they are sold. The tenderee may not terminate the bid invitation after it has issued the announcement on bid invitation, the letters of bid invitation or has sold the tender documents or pre-qualification documents.
Article 16 The tenderee may, according to the characteristics and needs of the project of bid invitation itself, require potential tenderers or tendereres to provide documents for fulfillment of the qualification requirements, and make qualification examination of the potential tenderers or tendereres; where there are provisions of laws and administration regulations on the qualification of the potential tenderers or tendereres, such provisions shall be observed.
Article 17 The qualification examination is divided into pre-qualification examination and post-qualification examination.
Pre-qualification examination refers to the qualification examination made on the potential tenderers before the bid invitation.
Post-qualification examination refers to the qualification examination made on the tenderers after the tender is opened.
As a general principle, no post-qualification examination will be made where a pre-qualification examination has already been made, except as otherwise provided for by the tender documents.
Article 18 Where pre-qualification examination is employed, the tenderee may issue the pre-qualification announcement. The pre-qualification announcement shall be governed by the provisions of Articles 13 and 14 of the present Measures concerning the announcement on bid invitation.
Where pre-qualification examination is employed, the tenderee shall indicate in the pre-qualification documents the conditions, standards and methods of the pre-qualification examination; where post-qualification examination is employed, the tenderee shall indicate in the tender documents the conditions, standards and methods of qualification requirements on the tenderers.
The tenderee may not change the indicated qualifications and conditions, or make examination on the potential tenderers or the tenderers according to the qualifications and conditions that haven’t been indicated.
Article 19 After the pre-qualification examination, the tenderee shall issue a notice to those passing the examination and inform them of the time, place and method of acquiring the tender documents, and shall at the same time inform the unqualified potential tenderers of the results of the pre-qualification examination. The potential tenderers who fail the pre-qualification examination may not participate in the bid invitation.
The tenders of the tenderers who fail the post-qualification examination shall be dealt with as nullified tenders.
Article 20 The qualification examination shall mainly examine whether the potential tenderers or tenderers meet the following conditions:
1) Having the independent right to conclude the contract;
2) Having the capacity to perform the contract, including professional and technical qualifications and capacity, fund, equipment and other material facilities, management capacity, experience, reputation and corresponding practicing personnel;
3) Having not been stopped from business, or deprived of the qualification for bid invitation, the property not being taken over or frozen, and having not been bankrupt;
4) Having no record of winning bids by fraudulent means or serious breach of contract or serious quality problems within the recent 3 years;
5) Other qualifications and conditions set forth by laws and administrative regulations.
In qualification examination, the tenderee may not restrict or exclude potential tenderers or tenderers by unreasonable conditions, may not apply discriminatory treatments to the potential tenderers or tenderers. No entity or individual may restrict the number of tenderers by administrative means or other unreasonable methods.
Article 21 If the tenderee meets the conditions for self bid invitation provided for by law, it may handle the bid invitation by itself. No entity or individual may enforce the tenderee to commission any bid invitation agency to handle the bid invitation. A bid invitation agency may undertake the following bid invitation matters within the scope of its qualification grade:
1) Drafting the bid invitation scheme, drawing up and selling the tender documents and pre-qualification documents;
2) Examining the qualification of the tenderers;
3) Setting the base amount of the tender;
4) Organizing the tenderers to make on-sport surveys;
5) Organizing the tender opening, and tender evaluation, and assisting the tenderee in determination of the bid winner;
6) Drafting the contract;
7) Other matters commissioned by the tenderee.
A bid invitation agency may not act as the agent without authorization or beyond the authorization, and may not accept the commission when it is fully aware that the commissioned matters are against the law.
A bid invitation agency may not accept commissions or provide bid invitation consultation for the same bid invitation project, and may not transfer the bid invitation commission without consent of the tenderee.
Article 23 A project bid invitation agency shall conclude a written commission contract with the tenderee, and take the agency fee according to the standards agreed upon by the two parties; if the state has any provisions on the charging standards, such provisions shall be observed.
Article 24 The tenderee shall formulate the tender documents pursuant to the characteristics and needs of the construction project. Generally, the tender documents shall include:
1) Tender invitation;
2) Instruction to tenderer;
3) Main terms of the contract;
4) Format of the tender documents;
5) In case of tender by project quantity list, the project quantity list shall be provided;
6) Technical terms;
7) Design drawings;
8) Standards and methods of tender evaluation;
9) Subsidiary tender materials.
The tenderee shall provide for in the tender documents the substantial requirements and conditions, and shall indicate them in an eye-catching way.
Article 25 The tenderee may require the tenderers to submit alternative tender schemes other than the tenders meeting the requirements of the tender documents, however, explanation shall be made in the tender documents, and corresponding evaluation and comparison measures shall be stated.
Article 26 The technical standards provided for in the tender documents shall meet the compulsory standards of the state.
The technical standards provided for in the tender documents may not require or indicate a certain patent, trademark, name, design, place of origin or supplier, neither may they contain any other contents that have preference towards or that exclude any potential tenderer. Where the tenderee must quote the technical standards of a supplier to correctly or clearly explain the technical standards of the bid invitation project, it shall add the words "or an equivalent to" after the references.
Article 27 Where a bid invitation construction project needs to be divided into sections and have the construction periods determined, the tenderee shall reasonably divide the tender sections and determine the construction periods, and indicate them in the tender documents. The project units with close technical connections and that are indivisible may not be divided into sections.
The tenderee may not restrict or exclude any potential tenderer or tenderere by unreasonable tender sections or construction periods.
Article 28 The tender documents shall expressly provide for all the tender evaluation factors other than the price, as well as how to quantify these factors or how to make the evaluation according to such factors.
The tender evaluation standards, methods and conditions for bid winning may not be changed during the tender evaluation.
Article 29 The tender documents shall fix an appropriate valid period for bid invitation, thus to ensure that the tenderee have enough time to finish the tender evaluation and sign the contract with the bid winner. The valid period for bid invitation shall be start on the deadline for the submission of tenders.
If any special circumstances occur prior to the expiration of the original valid period of bid invitation, the tenderee may, by written form, ask all the tenderers for extension of the valid period. The tenderers agreeing the extension may not require or be allowed to modify the substantial contents of their tenders, however, the valid period of their tender deposit shall be extended accordingly; for the tenders refusing the extension, their tenders shall be invalidated, however, those tenderers have the right to withdraw their tender deposit. If any losses have been caused to the tenderers due to extension of the valid period of bid invitation, the tenderee shall make compensation to them except that the extension is needed by reason of force majeure.
Article 30 Where the construction period of a bid invitation project exceeds 12 months, the tender documents may provide for the project cost index system, and the factors and methods for price adjustment.
Article 31 The tenderee shall fix reasonable time needed by the tenderers to formulate their tenders; however, with respect to a project subject to bid invitation pursuant to law, it shall be no less than 20 days from the day of issuing of the tender documents to the day of closing of the submission of tenders.
Article 32 The tenderee may, according to the concrete situations of the bid invitation project, organize the potential tenderers to make on-spot surveys for the project, and introduce to them the information about the project site and the relevant environment. The tenderers shall be responsible by themselves for the judgment and decisions made by the potential tenderers based on the introduction by the tenderee.
The tenderee may not organize only one tenderer or separately organized the tenderers to make on-spot surveys.
Article 33 With respect to the questions raised by the potential tenderers in reading of the tender documents and in on-spot surveys, the tenderee may give answers by written form or through the preliminary tender meeting, however, the tenderee shall notify all the potential tenderers who have bought the tender documents of the answers at the same time. Those answers shall be a part of the tender documents.
Article 34 The tenderee may decide whether or not to set the base amount of tender according to the characteristics of the project. Where the base tender amount is set, the setting process and the base tender amount shall be kept confidential.
Where the base tender amount is to be set, such base amount shall be reasonably determined according to the approved preliminary design, and estimated investment, through the relevant pricing methods, by reference with the relevant project quota, in light of the market supply and needs, and in consideration of the factors of investment, construction period and quality etc.
The base tender amount shall be set by the tenderee itself or by the intermediary agency commissioned thereby. And only one base amount may be set for one project.
No entity or individual may enforce the tenderee to set or report the base tender amount, or intervene with the setting of the base tender amount.
A bid invitation project may set no base amount, and carry out the bid invitation without the base amount.
Chapter 3 Tendering
Article 35 Tenderers are the legal persons or other organizations that respond to the letters of bid invitation and participate in the bid invitation competition. Any tenderer’s affiliated agency (entity) without the qualification of an independent legal person, or any legal person, as well as any affiliated agency (entity) thereof, that provides design or consultation services for the preparation or supervision for a bid invitation project, shall have no qualification to participate in the bid invitation of that project.
Article 36 A tenderer shall draw up the tender pursuant to the requirements of the tender documents. A tender shall respond to the substantial requirements and conditions set forth by the tender documents.
Generally a tender shall include:
1) Tender letter;
2) Quoted price;
3) Construction organization design;
4) Business and technical warps list.
The tenderer shall indicate in the tender if it is to, according to the actual situations of the project as indicated in the tender documents, after winning the tender subcontract any part of the project that is not the main body or a key part.
Article 37 A tenderee may require the tenderers to submit the tender deposit in the tender documents. The tender deposit may be, apart from cash, bank guarantees, confirmed checks, bank drafts or cash checks.
The tender deposit may not exceed 2% of the total tender price as a general principle; however, the maximum may not exceed 800,000 Yuan RMB. The valid period of the tender deposit shall be 30 days longer than the valid period of the bid invitation.
A tenderer shall submit the tender deposit together with the tender to the tenderee according to the method and amount required by the tender documents.
Where a tenderer fails to submit the tender deposit as required by the tender documents, its tender shall be rejected and be dealt with nullified tender.
Article 38 A tenderer shall serve the sealed tender to the bid invitation place prior to the deadline for submission of tenders as required by the tender documents. The tenderee shall, after receiving the tender, issue to the tenderer a proof marked with the recipient and time of receipt, and no entity or individual may open the tender before the tender opening.
The tenders served after the deadline for submission of tenders as required by the tender documents are void, and the tenderee shall reject such tenders.
Where less than 3 tenderers submit the tenders, the tenderee shall invite tenders again according to law. Where there are still less than 3 tenderers, an engineering project subject to examination and approval may carry out no bid invitation any more upon approval of the department that examined and approved the project; for any other engineering project, the tenderee may decide by itself not to invite tenders any more.
Article 39 Prior to the deadline for submission of tenders required by the tender documents, a tenderer may supplement, modify, replace or withdraw the submitted tender, and notify the tenderee by written form. The contents supplemented and modified shall be a part of the tender.
Article 40 After the deadline for submission of tenders and before the expiration of the valid period of bid invitation fixed by the tender documents, a tenderer may not supplement, modify, replace or withdraw its tender. The tenderee will not accept a tender supplemented, modified, or replaced by the tenderer; and will confiscate the tender deposit if the tender withdraws its tender.
Article 41 Before the tender opening, a tenderee shall appropriately keep the tender materials it has received, such as the tenders, notices of modification or withdrawal, and alternative tender schemes etc.
Article 42 Two or more legal persons or other organizations may form an association to tender as joint tenderers.
The parties to the association may not, after signing the agreement on joint bid invitation, tender in their own names, neither may they form any new association or participate in any other association to tender in the same project.
Article 43 Where an association has participated in and passed the pre-qualification examination, any changes to its composition must be subject to the consent of the tenderee prior to the deadline for submission of tenders. If the competitiveness of the association has been weakened as it includes any legal person or other organization that hasn’t participated in or passed the pre-qualification examination, or the quality of the association has been lowered to below the minimum standard fixed by the pre-qualification documents, the tenderee shall have the right to reject that association.
Article 44 The parties to an association must appoint a leader, who will be authorized to be responsible for the bid invitation and for the direction and coordination in the performance of the contract on behalf of all the association members, and who shall submit to the tenderee the authorization letter signed by the legal representatives of all the association members.
Article 45 In case of joint bid invitation, the tender deposit shall be submitted in the name of the parties to the association or of the leader of the association. The tender deposit submitted in the name of the leader of the association shall be binding on all the members of association.
Article 46 All the following acts are conclusive quoting of price by tendereres:
1) The tenderers agree with each other to drive up or down the quoted price;
2) The tenderers agree with each other to quote high, middle-level, or low prices respectively in the bid invitation;
3) The tenderers carry out price competition among themselves and determine the bid winner before participating in the bid invitation;
4) Other acts of conclusive quoting of price among the tenderers.
Article 47 The following acts are conclusive bid invitation by the tenderee and the tenderers:
1) The tenderee opens any tender before the tender opening, and inform other tenderers of the bid invitation information, or assist a tenderer to replace the tender and change the quoted price;
2) The tenderee discloses the base tender amount to the tenderers;
3) The tenderee and the tenderers agree through discussion to drive up or down the price in bid invitation, and to give extra compensation to the tenderers or the tenderee after the bid winning;
4) The tenderee secretly determines the bid winner in advance;
5) Other acts of conclusive bid invitation.
Article 48 A tenderer may not tender in any other’s name.
The bid invitation in other’s name as used in the preceding paragraph refers to the act of a tenderer to be affiliated to any other construction entity, or to acquire the qualification or qualification certificate from any other entity through transfer or lease, or to have any other entity as well as the legal representative thereof stamp and sign on the its tender etc.
Chapter 4 Tender Opening, Evaluation and Determination
Article 49 Tender opening shall be carried out at the same time as the deadline for submission of tenders fixed in the tender documents; the place of tender opening shall be the place fixed in the tender documents.
Article 50 The tenderee will reject a tender if:
1) The tender hasn’t been served within the prescribed time limit or to the designated place;
2) The tender hasn’t been sealed as required by the tender documents.
The tender evaluation committee will, after the preliminary examination, deal with a tender as nullified if:
1) The tender bears no entity stamp or no signature or stamp of the legal representative or the agent authorized thereby;
2) The tender hasn’t been filled out in the prescribed format, the contents are incomplete or the key words are indistinct and illegible;
3) The tenderer has submitted two or more tenders of different contents, or quote two or more prices for one project in one tender without declaring which one is valid, with exception of the alternative tender scheme submitted as required by the tender documents;
4) The name or organizational structure of the tenderer is inconsistent with that in the pre-qualification examination;
5) No tender deposit has been submitted as required by the tender documents;
6) The bid invitation association hasn’t attached the agreement on joint bid invitation of the parties to the association.
Article 51 The tender evaluation committee may, by written form, require a tenderer to make necessary clarification, explanation or amendment with respect to the contents of a tender with unclear meaning, inconsistent statements on the same issue or obvious errors in wordage or calculation. The tender evaluation committee may not raise any implied or inductive questions to the tenderer, or explicitly indicate to the tenderer the omissions and mistakes in the tender.
Article 52 The tenderee shall reject a tender which makes no response to the substantial requirements and conditions of the tender documents, and shall not allow the tenderer to make such a tender to be a responding one by modifying or canceling its differences or reservations not in conformity with the requirements.
Article 53 When evaluating the quoted prices of the tenders which substantially respond to the requirements of the tender documents, the tender evaluation committee shall make modifications according to the following principles, except as otherwise stipulated by the tender documents:
1) Where the amount embodied by figures differs from that embodied by words, the latter shall prevail;
2) Where the sum of the unit price multiplied by the project quantity differs from the total price, the unit price shall prevail. Where there is any obvious misplacement of decimals in the unit price, the total price shall prevail and the unit price shall be modified.
The quoted price adjusted pursuant to the preceding paragraph shall be binding upon confirmation by the tenderer.
The prices and preferential conditions not included in the tender shall not be considered in the tender evaluation.
Article 54 The additional proceeds arising from the alternative tender scheme submitted by the tenderer that is superior than the technical standards fixed by the tender documents shall not be considered in the evaluated price. Only for the tenderer who has met the basic technical requirements fixed by the tender documents and who has the lowest evaluated price or highest comprehensive score, the alternative scheme submitted by it may be considered.
Article 55 Where the tenderee has set the base amount of tender, that base amount shall be taken as reference in the tender evaluation, but may not be taken as the only basis for tender evaluation.
Article 56 After finishing the tender evaluation, the tender evaluation committee shall present to the tenderers a written tender evaluation report. The evaluation report shall be signed by all the members of the tender evaluation committee.
After the tender evaluation committee presents the written evaluation report, the tenderee shall, as a general principle, determine the bid winner within 15 days, however, the bid winner shall be determined at no later a time than 30 workdays prior to the expiration of the valid period of bid invitation.
The notice on bid winning shall be issued by the tenderee.
Article 57 The tender evaluation committee shall only recommend 1 to 3 candidates for bid winning, and shall indicate the order of those candidates. The tenderee shall accept the candidates recommended by the tender evaluation committee, and may not determine the bid winner from other than those candidates recommended by the tender evaluation committee.
Article 58 For a project subject to bid invitation pursuant to law, the tenderee shall determine the No. 1 candidate as the bid winner. Where the No.1 candidate waives the bid winning, or is unable to perform the contract due to force majeure, or fails to submit the performance deposit within the prescribed time limit as required by the tender documents, the tenderee may determine the No.2 candidate as the bid winner.
Where the No.2 candidate is unable to sign the contract for the same reasons specified in the preceding paragraph, the tenderee may determine the No.3 candidate as the bid winner.
The tenderee may authorize the evaluation committee to directly determine the bid winner.
If the State Council has otherwise provisions on determination of the bid winner, such provisions shall be observed.
Article 59 The tenderee may not raise any requirements against the will of the bid winner, such as lowering the quoted price, adding the quantity, shortening the construction period etc, as the condition for issuing the notice on bid winning and for signing the contract.
Article 60 The notice on bid winning shall be binding on the tenderee and the bid winner. After issuing the notice on bid winning, if the tenderee changes the bid winning results or if the bid winner waives the project it wins, they shall bear legal responsibilities pursuant to law.
Article 61 Where the tenderee uses all or part of the technical achievements or technical schemes in the tender of any losing entity, it shall obtain written consent of that entity and give it appropriate economic compensation.
Article 62 The tenderee and the bid winner shall, within 30 days from the day of issuing of the notice on bid winning, conclude a written contract in accordance with the tender documents and the tender of the winner. The tenderee and the bid winner may not conclude any other agreement that goes against the substantial contents of the contract.
Where the tender documents require the bid winner to submit performance deposit or performance guarantee in any other form, the bid winner shall do so, and the bid winner shall be regarded as waiving the project it wins if it refuses to submit the guarantee. Where the tenderee requires the bid winner to submit performance deposit or performance guarantee in any other form, the tenderee shall at the same time provide the bid winner with guarantee for payment for the project.
The tenderee may not raise the performance deposit at its will, or impose compulsory requirements on the bid winner to pay in advance the construction fund for the project it wins.
Article 63 The tenderee shall, within 5 workdays from signing the contract with the bid winner; return the tender deposit to the losing tenderers.
Article 64 The construction scale, construction standards, construction contents, and contract price determined in the contract shall be controlled within the scope of the approved preliminary design and the estimation documents; where it is necessary to exceed the prescribed scope, the exceeded scope shall, before signing of the bid winning contract, be submitted for examination and consent by the department that examined and approved the project. The said department will not acknowledge the exceeded scope when adjusting the preliminary design and making estimations if it shall have been submitted for examination.
Article 65 For a project subject to construction bid invitation pursuant to law, the tenderee shall, within 15 days from the day of issuing the notice on bid winning, submit the written report on the bid invitation to the relevant administrative supervision department.
The written report as used in the preceding paragraph shall at least include:
1) Tendering scope;
2) Tendering method and the media through which the announcement on bid invitation is issued;
3) Instruction for tenderer, technical terms, evaluation standards and methods, and contract main terms etc in the tender documents;
4) Composition of the tender evaluation committee and the evaluation report;
5) Tender winning result.
Article 66 The tenderee may not directly designate any sub-contractor.
Article 67 Where the conditions for sub-contracting are not met or the provisions on sub-contracting are not complied with, the tenderee shall have the right to reject sub-contracting when signing the contract or where the bid winner raises such a requirement. Where the bid winner is found to have sublet the contract or make illegal subcontracts, the tenderee may require it to get right. It may terminate the contract if the bid winner refuses to get right, and may report to the relevant administrative supervision department for investigation and punishment.
Where the supervisory personnel and the relevant administrative departments find that the bid winner, in violation of the contract terms, sublets the contract or make illegal subcontracts, they shall require the bid winner to get right, or inform the tenderee to require the bid winner to get right; and shall report to the relevant administrative supervision department for investigation and punishment if the bid winner refuses to get right.
Chapter 5 Legal Responsibilities
Article 68 If any one fails to carry out bid invitation for a project subject to bid invitation pursuant to law, or breaks up a project subject to bid invitation into parts, or avoids the bid invitation by any other means, the relevant administrative department shall order the offender to get right within a prescribed time limit, and may impose on it a fine ranging from 5 ‰ to 10 ‰ of the contract sum of the project. In case a project is totally or partly financed by state-owned capital, the project examination and approval department may suspend the execution of the project or suspend allocation of the fund, and the personnel directly in charge of the entity and other directly responsible personnel shall be given sanctions pursuant to law.
Article 69 If a bid invitation agency, in violation of law, discloses the relevant information and materials about the bid invitation activities that should be kept confidential, or colludes with the tenderee or tenderer to impair the state interest, public interest or the legitimate rights and interests of others, the relevant administrative supervision department shall impose on that agency a fine ranging from 50,000 Yuan to 250,000 Yuan, and impose on the personnel directly in charge of the entity and other directly responsible personnel a fine ranging from 5% to 10% of the amount of fine imposed on the entity; if there are any illegal gains, such gains shall be confiscated; if the circumstances are serious, the relevant administrative supervision department may stop that agency from participating in bid invitation agency business in the relevant fields for a certain period, the qualification determination department may suspend or even cancel its qualification of bid invitation agency; if a crime has been constituted, the judicial department may prosecute it for criminal responsibilities. And the agency shall be liable for compensation for any losses caused to others.
If the acts specified in the preceding paragraph affect the bid winning result, and the bid winner is the beneficiary of such acts, the bid winning shall be invalidated.
Article 70 If a tenderee restricts or excludes any potential tenderer by unreasonable conditions, applies discriminatory treatments to the potential tenderers, compel the tenderers to form an association to make joint bid invitation, or restricts the competition among the potential tenderers, the relevant administrative supervision department shall order the tenderee to get right, and may impose on it a fine ranging from 10,000 Yuan to 50,000 Yuan.
Article 71 Where the tenderee of a project subject to bid invitation pursuant to law discloses to others the names and number of the potential tenderers that have acquired the tender documents or any other bid invitation information that may affect fair competition, or discloses the base amount of the tender, the relevant administrative supervision department shall give it a warning and may impose on it a fine ranging from 10,000 Yuan to 100,000 Yuan concurrently; the personnel directly in charge of the entity and other directly responsible personnel shall be given sanctions pursuant to law; if a crime has been constituted, the tenderee shall be subject to criminal liabilities.
If the acts specified in the preceding paragraph affect the bid winning result, and the bid winner is the beneficiary of such acts, the bid winning shall be invalidated.
Article 72 If a tenderee terminates the bid invitation after it has issued the announcement on bid invitation, issued the letters of bid invitation or sold the tender documents or pre-qualification documents, except it has justified reasons, the relevant administrative supervision department shall give it a warning and may impose on it a fine of less than 30,000 Yuan regarding the circumstances; and the tenderee shall be liable for compensation for any losses caused to the potential tenderers or tenderers.
Article 73 If a tenderee or bid invitation agency is in any of the following situations, the relevant administrative supervision department shall order it to get right within a prescribed time limit and may impose on it a fine of less than 30,000 Yuan regarding the circumstances; if the circumstances are serious, the bid invitation shall be invalidated:
1) Failing to issue the announcement on bid invitation on the designated media;
2) In case of requested bid invitation, failing to issue letters of bid invitation pursuant to law;
3) The period is shorter than 5 workdays from the day of selling of the tender documents or pre-qualification documents to the day of stopping the sale;
4) For a project subject to bid invitation, the period is shorter than 20 days from the day of issuing of the tender documents to the day of closing of submission of the tenders;
5) Failing to carry out open bid invitation where it should do so;
6) Carrying out bid invitation without necessary conditions;
7) Failing to go through the required ratification formalities;
8) Failing to carry out the bid invitation according to the contents ratified by the examination and approval department;
9) Accepting tenders after the deadline for submission of tenders;
10) Failing to carry out a new bid invitation where the number of tenderers in not in conformity with the legal requirements.
Where a bid invitation is determined as void, a new bid invitation shall be carried out.
Article 74 If the tenderers collude with each other or with the tenderee in the bid invitation, or the tenderers try to win the tender by bribing the tenderee or the evaluation committee, the bid winning shall be invalidated, the relevant administrative supervision department shall impose on the offender a fine ranging from 5 ‰ to 10 ‰ of the sum of the project won, and impose on the personnel directly in charge of the entity and other directly responsible personnel a fine ranging from 5 ‰ to 10 ‰ of the sum of the fine imposed on the entity; if there are any illegal gains, such gains shall be confiscated; if the circumstances are serious, the offender shall be disqualified for 1 to 2 years, and the disqualification shall be announced, or the offender may even be deprived of its business license by the department of industry and commerce administration; if a crime has been constituted, the offender shall be subject to criminal liabilities. And the offender shall be liable for any losses caused to others.
Article 75 If a tenderer tenders in other’s name or practices frauds by other means to cheat for bid winning, the bid winning shall be invalidated, and that tenderer shall be liable for compensation for any losses caused to the tenderee; if a crime has been constituted, the tenderer shall be subject to criminal liabilities.
If a tenderee of a project subject to bid invitation pursuant to law has committed any of the act specified in the preceding paragraph, but such an act hasn’t constituted a crime, the relevant administrative supervision department shall impose on the tenderer a fine ranging from 5 ‰ to 10 ‰ of the sum of the project won, and impose on the personnel directly in charge of the entity and other directly responsible personnel a fine ranging from 5 ‰ to 10 ‰ of the sum of the fine imposed on the entity; if there are any illegal gains, such gains shall be confiscated concurrently; if the circumstances are serious, the tenderer shall be disqualified from bid invitation for 1 to 3 years, and the disqualification shall be announced, and the tenderer may even be deprived of its business license by the department of industry and commerce administration.
Article 76 In case of a project subject to bid invitation, if the tenderee, in violation of law, negotiates with the tenderer on the price, the tender scheme or other substantial contents, the relevant administrative supervision department shall give the offender a warning, and impose sanctions on the personnel directly in charge of the entity and other directly responsible personnel pursuant to law.
If the acts specified in the preceding paragraph affect the bid winning result, the bid winning shall be invalidated.
Article 77 If any member of the tender evaluation committee accepts money and goods or other benefits from the tenderer, or if any member of the tender evaluation committee or any relevant working staff participating in the evaluation discloses to other the evaluation and comparison of the tenders, the recommendation of bid winner candidates as well as any other relevant information about the evaluation, the relevant administrative supervision department shall give the offender a warning and confiscate the money and goods accepted, and may impose on the offender a fine ranging from 3,000 Yuan to 50,000 Yuan concurrently, disqualify him from being a evaluation committee member of the member who has commit any of the specified illegal acts, and that member may not participate in tender evaluation of any tender projects any more; where a crime has been constituted, the offender shall be subject to criminal liabilities.
Article 78 If any tender evaluation committee member, during the tender evaluation, leaves his post without permission and thus affects the normal proceeding of tender evaluation, or fails to perform his duties objectively and justly, the relevant administrative supervision department shall give that member a warning; if the circumstances are serious, that member shall be disqualified from being a member of the evaluation committee, may not participate in tender evaluation of any tender project any more, and be imposed on a fine of less than 10,000 Yuan.
Article 79 If any of the following situations occurs in the process of tender evaluation, the evaluation shall be invalidated, and a new evaluation or bid invitation shall be carried out pursuant to law, the relevant administrative supervision department may impose on the offender a fine of less than 30,000 Yuan:
1) If the tender documents used contain no definite evaluation standards and methods;
2) If the tender evaluation standards or methods contain any preferential or exclusive contents for or against the tenderers, impair or restrict the competition among the tenderers, and thus affect the evaluation result;
3) Any person who shall withdraw from being a member of the evaluation committee participates in the evaluation;
4) The formation and composition of the tender evaluation committee are not in conformity with the legal requirements;
5) The evaluation committee as well as its members commit any illegal act during the process of tender evaluation and thus affect the evaluation result.
Article 80 If a tenderee determines the bid winner not from the bid winner candidates recommended by the evaluation committee pursuant to law, or the tenderee of a project subject to bid invitation pursuant to law determines by itself the bid winner after all the tenders are denied by the evaluation committee, the bid winning shall be invalidated. The relevant administrative supervision department shall order the tenderee to get right, and may impose on it a fine ranging from 5 ‰ to 10 ‰ of the sum of the project won; and shall impose sanctions on the personnel directly in charge of the entity and other directly responsible personnel.
Article 81 If a tenderee fails to determine the bid winner within the prescribed time limit, or changes the bid winning result and refuses to sign the contract with the bid winner without justified reasons after issuing the notice on bid winning, or raises any additional conditions or changes the substantial contents of the contract when signing the contract, the relevant administrative supervision department shall give the tenderee a warning and order it go get right, and may impose on it a fine of less than 30,000 Yuan regarding the circumstances; and the tenderee shall be liable for compensation for any losses caused to the bid winner.
If the bid winner, after the notice on bid winning is issued, waives the project it wins, refuses to sign the contract with the tenderee without justified reasons, raises any additional conditions or changes the substantial contents of the contract when signing the contract, or refuses to submit the required performance deposit, the tenderee may cancel its qualification for bid winning and confiscate its tender deposit; if the losses thus caused to the tenderee exceed the sum of the tender deposit, the bid winner shall compensate for the exceeding part; in absence of tender deposit, the bid winner shall be liable for compensation for the losses of the tenderee.
Article 82 If the bid winner sublets the project it wins to others, break up the project and sublets the parts of it to others respectively, or subcontracts some major or key work of the project to others in violation of law, or the subcontractor makes subcontracts again, such sublets and subcontracts shall be invalidated, the relevant administrative supervision department shall impose on the offender a fine ranging from 5 ‰ to 10 ‰ of the sum of the project sublet or subcontracted; if there are any illegal gains, such gains shall be confiscated; the offender may be ordered to stop business for rectification; if the circumstances are serious, the department of industry and commerce administration shall revoke the business license of the offender.
Article 83 If the tenderee and the bid winner fails to conclude the contract pursuant to the tender documents and the tender of the bid winner, or the tenderee and bid winner conclude any agreement that contravenes the substantial contents of the contract, or the tenderee arbitrarily raises the performance deposit or compel the bid winner to pay in advance the construction fund for the bid winning project, the relevant administrative supervision department shall order the offender to get right; and may impose on the offender a fine ranging from 5 ‰ to 10 ‰ of the sum of the project won.
Article 84 If a bid winner fails to conclude the contract with the tenderee, the performance deposit shall not be returned to it, if the losses thus caused to the tenderee exceed the sum of the performance deposit, the bid winner shall also compensate for the exceeding part; in absence of performance deposit, the bid winner shall be liable for the losses of the tenderee.
If a bid winner fails to perform its obligations according to the contract it concluded with the tenderee, and if the circumstances are serious, the relevant administrative supervision department shall cancel its qualification for participating in bid invitation project for 2 to 5 years and shall announce the cancellation, and the bid winner’s business license may even be revoked by the department of industry and commerce administration.
In case of failure to perform the contract due to force majeure, the provisions of the preceding two paragraphs shall not apply.
Article 85 If a tenderee fails to perform the contract it concluded with the bid winner, it shall return the performance deposit to the bid winner in doubled sum; if the losses thus caused to the bid winner exceed the performance deposit returned, the exceeding part shall be compensated; in absence of performance deposit, the tenderee shall be liable for the losses of the bid winner.
The provisions of the preceding paragraph shall not apply in case of failure to perform the contract due to force majeure.
Article 86 If a project subject to bid invitation pursuant to law violates any of the legal provisions and the bid winning is invalidated, another bid winner shall be determined from the remaining tenderers pursuant to the conditions for bid winning provided for by law or a new bid invitation shall be carried out.
If the bid winning is invalidated, the notice on bid winning and the contract concluded shall not be binding retroactively, without prejudice to the effect of the terms concerning settlement of disputes that exist independently in the contract.
Article 87 If any entity, in violation of law, restricts or excludes the legal persons or other organizations outside of its area or trade from participating in the bid invitation, designates any bid invitation agency for the tenderee, compels the tenderee to commission any bid invitation agency to handle bid invitation matters, or intervenes with the bid invitation activities by any other means, the relevant administrative supervision department shall order that entity to get right; impose sanctions of warning, demerit, or special demerit on the personnel directly in charge of the entity and other directly responsible personnel, and impose the sanctions of demotion, removal from post or dismissal pursuant to law if the circumstances are serious.
If any individual commits any illegal acts specified in the preceding paragraph by taking advantage of his/her authorities, he/she shall be subject to liabilities pursuant to the preceding paragraph.
Article 88 If any state functionary in charge of administrative supervision over the bid invitation activities seeks private benefits through wrongful means, abuses the powers or neglects the duties, and constitutes a crime, the offender shall be subject to criminal liabilities; and if a crime hasn’t been constituted, the offender shall be imposed on administrative sanctions.
Article 89 Any entity or individual is entitled to report and charge the illegal acts occurring during the process of construction bid invitation for engineering project to the project examination and approval department or the relevant administrative supervision department.
Chapter 6 Supplementary Provisions
Article 90 In case any bid invitation is carried out by using the loans or financial aids from international organizations or foreign governments, if the creditor or fund supplier has any otherwise provisions on the conditions and procedures for construction bid invitation, such provisions shall be applied, except those violating the pubic interest of the People’s Republic of China.
Article 91 The power to interpret the present Measures shall remain with the State Development Planning Commission in conjunction with the relevant departments.
Article 92 The present Measures shall come into force on May 1, 2003.
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