Rules on the examination of fair competition in the field of tendering and bidding

National Development and Reform Commission of the People's Republic of China
Ministry of the People's Republic of China Industry and Information Technology
Ministry of Housing and Urban-Rural Development of the People's Republic of China
the People's Republic of China Ministry of Transport
the People's Republic of China Ministry of Water Resources
the People's Republic of China Ministry of Agriculture and Rural Affairs
the People's Republic of China Ministry of Commerce
State Administration of Market Supervision and Administration
Order

No. 16

The Rules for the Review of Fair Competition in the Field of Tendering and Bidding, as deliberated and adopted at the 8th Committee Meeting on January 31, 2024, are hereby promulgated and shall come into force on May 1, 2024.

Director of the National Development and Reform Commission: Zheng Zhajie
Minister of Industry and Information Technology: Jin Zhuanglong
Minister of Housing and Urban-Rural Development: Ni Hong
Minister of Transport: Li Xiaopeng
Minister of Water Resources: Li Guoying
Minister of Agriculture and Rural Affairs: Tang Renjian
Minister of Commerce: Wang Wentao
Director General of Market Supervision: Rowan

25 March 2024

Rules on the examination of fair competition in the field of tendering and bidding

Chapter I General Provisions

Article 1 In order to strengthen and standardize the examination of fair competition in the field of bidding and bidding, and maintain the order of fair competition in the market, these rules are formulated in accordance with the the People's Republic of China Bidding Law, the Implementation Regulations of the the People's Republic of China Bidding Law and other relevant provisions.

Article 2 These Rules shall apply to the examination of fair competition in the field of tendering and bidding.

Article 3 the term "fair competition review" as mentioned in these rules refers to the activities of administrative organs and organizations authorized by laws and regulations with the function of managing public affairs (hereinafter collectively referred to as policy-making organs) to examine and evaluate whether there are rules, administrative normative documents, other policy documents and specific policy measures (hereinafter collectively referred to as policy measures) related to the economic activities of business entities to be formulated in the field of bidding and bidding.

Except for the exceptions to the fair competition review stipulated by laws, administrative regulations or the State Council, no relevant policies and measures shall be introduced without the fair competition review or the existence of exclusion or restriction of competition after review.

Article 4 Policy-making organs shall perform the duties of fair competition review. The policy-making authority shall identify a specialized agency specifically responsible for the fair competition review of policy measures.

If multiple departments jointly formulate policies and measures, the lead department shall organize a fair competition review, and each participating department shall be responsible for the policies and measures within the scope of its responsibilities.

Chapter II Examination Criteria

Article 5 The policy-making organ shall respect and guarantee the autonomy of the tenderer in organizing the bidding, selecting the bidding agency, preparing the prequalification documents and the bidding documents, and shall not formulate the following policies and measures:

(I) the means of designating a bidding agency for the tenderer or illegally restricting the tenderer's choice of a bidding agency;

The (II) shall designate the bidding qualifications, technical and commercial conditions for the tenderer;

(III) specify a specific type of qualification examination method or bid evaluation method for the tenderer;

(IV) specify specific qualification examination standards or bid evaluation standards for the tenderer;

The (V) shall designate members of the bid evaluation committee for the tenderee;

(VI) for the electronic trading system that has been incorporated into the unified public resources trading platform system, restrict the tenderer's independent choice;

(VII) force the tenderer or the bidding agency to choose the electronic authentication service;

The (VIII) designates specific trading instruments for the tenderer or the bidding agency;

The (IX) shall designate the pre-selection database, qualification database or alternative list of contractors (suppliers) for the Tenderee;

The (X) requires the tenderer to carry out bidding and tendering activities in accordance with local supporting policies such as the list of innovative products in the region and the list of priority procurement products;

(11) Policies and measures restricting the autonomy of the tenderee with other unreasonable conditions.

Article 6 The policy-making organ shall implement the national unified market access conditions, and shall not formulate the following policies and measures for the participation of business entities in bidding activities:

For industries, fields and businesses outside the negative list of market access, the (I) requires business entities to obtain administrative permission before participating in bidding activities;

The (II) requires the business entity to establish a branch in the region, pay taxes and social security, or form a consortium with the business entity in the region;

(III) requires the business entity to obtain performance or awards in the region;

The (IV) requires the business entity to obtain relevant certificates issued by specific regions or specific industry organizations such as training certificates and employment certificates;

The (V) requires the business entity to obtain the membership of a specific industry organization;

(VI) policies and measures to restrict the participation of business entities in bidding with other unreasonable conditions.

Article 7 When formulating standard bidding documents (model text) and standard prequalification documents (model text), the policy-making organ shall treat business entities in different regions and forms of ownership equally, and shall not set the following contents in the standard bidding documents (model text) and standard prequalification documents (model text):

(I) set the difference score according to the region of the business entity's performance;

(II) set differential scores based on the form of ownership of the business entity;

(III) set the difference score according to the origin of the bidding products of the business entity;

(IV) set differential scores based on the size, registered address, registered capital, market share, debt ratio, and net asset size of the business entity;

(V) set the difference score according to the registered address and ownership form of the member units of the consortium;

(VI) other content that excludes or restricts competition.

Article 8 When formulating policies and measures related to bid determination, the policy-making organ shall respect and guarantee the bid inviting party's right to bid determination, implement the main responsibility of the bid inviting party for bid determination, and shall not formulate the following policies and measures:

The (I) shall specify the method of calibration for the Tenderee;

The (II) designates the unit or personnel for calibration for the tenderer;

(III) the right of bid determination shall be delegated to any unit or person other than the tenderee or its authorized bid evaluation committee;

(IV) to the provisions, the qualified bidders, successful candidates or successful bidders shall be determined directly by means of drawing lots, lottery, drawing lots, etc;

(V) policies and measures to restrict the right of the tenderer to determine the tender with other unreasonable conditions.

Article 9 The policy-making agency may organize and carry out credit evaluation to guide business entities to participate in bidding and bidding activities in good faith and law-abiding, and may formulate and implement corresponding policies and measures to encourage business entities to apply the results of credit evaluation, but it shall treat business entities in different regions and forms of ownership equally, Protect the autonomy of business entities in accordance with the law, and shall not formulate the following policy measures:

(I) make different provisions for business entities in different regions or forms of ownership in terms of credit information recording, collection, and sharing;

(II) adopt different credit evaluation criteria for the qualifications, qualifications and performance of business entities in different regions or forms of ownership;

(III) adopt differentiated credit supervision measures according to the region or form of ownership of the business entity;

(IV) there is no legal basis to restrict the autonomy of the business entity to refer to the use of credit evaluation results;

(V) other policies and measures that restrict competition or damage the legitimate rights and interests of business entities.

Article 10 When formulating policies and measures involving the supervision and service of bidding and bidding transactions, the policy-making organ shall equally guarantee the participation of all kinds of business entities, and shall not formulate the following policies and measures in the transaction process:

The (I) stipulates that the bidding and bidding transaction service institutions shall exercise the functions of administrative nature such as examination and approval, filing, supervision and punishment;

(II) compulsory non-public resource trading projects to enter the public resource trading platform for trading;

The (III) compels the bidder to provide the original in the bidding process for matters that can be verified through notification of commitments and subsequent verification;

The (IV) illegally requires the legal representative, technical director, project leader or other specific personnel of the bidder to be present in the process of obtaining bidding documents and bid opening;

(V) other policies and measures that improperly restrict the participation of business entities in bidding.

Article 11 The policy-making organ shall not set the following unreasonable restrictions when formulating policies and measures involving margin:

(I) restrict the tenderer from collecting security deposit according to law;

The (II) requires the business entity to pay other deposits except bid bond, performance bond, project quality bond, and migrant workers' wage bond;

(III) limit the form of the business entity to pay the deposit;

The (IV) requires the business entity to issue a letter of guarantee (insurance) from a specific institution;

(V) setting preconditions for deposit refund outside the bidding documents;

(VI) other unreasonable restrictions involving margin.

Chapter III Review Mechanism

Article 12 The policy-making organ shall establish its own working mechanism for fair competition review, clarify the institution responsible for fair competition review, review standards and review procedures, and standardize the conduct of fair competition review.

Article 13 A fair competition review shall be completed before a policy measure is submitted for review or approval.

The policy-making organ shall make a written examination conclusion that meets or does not meet the examination criteria. Where the relevant laws, administrative regulations or exceptions to the fair competition review provided by the State Council are applied, the reasons shall be stated in the review conclusion.

Article 14 In the process of fair competition review of policies and measures, policy-making agencies shall listen to the opinions of relevant business entities, industry associations and chambers of commerce in an appropriate manner; in addition to keeping secrets in accordance with the law, they shall solicit opinions from the public.

In other aspects of drafting policies and measures, those who have already solicited opinions from the public or solicited opinions from relevant parties may no longer solicit opinions specifically on the review of fair competition.

Article 15 the policy-making organ may entrust a third party institution to evaluate the fair competition impact of the proposed policies and measures, the competition effect of the policies and measures already issued, the overall implementation of the fair competition review system for bidding and bidding in the region, and the market competition situation.

Chapter IV Supervision and Administration

Article 16 The local bidding and bidding guidance and coordination departments at all levels, together with the bidding and bidding administrative supervision departments, shall regularly organize the evaluation of policies and measures, and shall promptly correct the violations of the relevant provisions of the fair competition review.

Article 17 If citizens, legal persons or other organizations believe that policies and measures hinder fair competition, they shall have the right to report them to the policy-making organ and the organ at the next higher level.

Local bidding and bidding guidance and coordination departments at all levels and bidding administrative supervision departments shall establish a mechanism for collecting market barriers and clues in bidding and bidding, and dynamically clean up and abolish various policies and measures that violate fair competition.

Article 18 If citizens, legal persons or other organizations believe that the prequalification documents and bidding documents have unreasonable conditions to exclude or restrict potential bidders, they shall have the right to raise objections and complaints in accordance with the relevant provisions of the Bidding Law and its implementing regulations. The bidding and bidding administrative supervision department and the tenderer shall handle the matter in accordance with the prescribed procedures.

Article 19 If the policy-making organ fails to conduct a fair competition review or issues policies and measures in violation of the review standards, it shall be ordered by the higher authorities to make corrections; if it refuses to make corrections or fails to make corrections in time, the directly responsible person in charge and other relevant responsible personnel shall be punished in accordance with Article 39 of the Law on the Administration of the People's Republic of China Public Officials and Article 61 of the Law on the People's Republic of China Civil Servants.

Chapter V Supplementary Provisions

Article 20 The policy-making authority, as the tenderer, shall prepare the tender announcement, pre-qualification documents and tender documents, and the public resources trading platform operation service agency shall conduct fair competition review with reference to these rules.

Article 21 These Rules shall be interpreted by the National Development and Reform Commission in conjunction with relevant departments.

Article 22 These Rules shall come into force as of May 1, 2024.