The People's Republic of China Tendering and Bidding Law

the People's Republic of China Tendering and Bidding Law

(Adopted at the 11th meeting of the Standing Committee of the Ninth National People's Congress on August 30, 1999, and amended in accordance with the Decision on Amending the the People's Republic of China Law on Bidding and Bidding and the the People's Republic of China Metrology Law of the People's Republic of China adopted at the 31st meeting of the Standing Committee of the Twelfth National People's Congress on December 27, 2017)

Record

The first chapter of the total.

Chapter 2 Marks

Chapter III. I. I.........................................

Chapter IV. Opening, Evaluation and Acceptance of Bids

Chapter V. Legal Liability

Chapter 6: Attachment

The first chapter of the total.

Article 1 This Law is formulated for the purpose of regulating tendering and bidding activities, protecting the interests of the State, the public interests of society and the legitimate rights and interests of the parties to tendering and bidding activities, improving economic efficiency and ensuring the quality of projects.

Article 2 This Law shall apply to tendering and bidding activities conducted within the territory of the People's Republic of China.

Article 3 Bidding must be conducted for the following construction projects within the territory of the People's Republic of China, including the survey, design, construction, supervision of the project and the procurement of important equipment and materials related to the construction of the project:

(I) large-scale infrastructure, public utilities and other projects related to social public interests and public safety;

(II) projects wholly or partly invested by state-owned funds or financed by the state;

Projects that (III) use loans or aid funds from international organizations or foreign governments.

The specific scope and scale standards for the projects listed in the preceding paragraph shall be formulated by the development planning department of the State Council in conjunction with the relevant departments of the State Council and submitted to the State Council for approval.

If the law or the State Council has provisions on the scope of other projects that must be subject to bidding, such provisions shall be followed.

Article 4 No unit or individual may break up a project that must be tendered according to law into parts or circumvent the tender in any other way.

Article 5 Tendering and bidding activities shall follow the principles of openness, fairness, impartiality and good faith.

Article 6 For projects that must be tendered according to law, the tendering and bidding activities shall not be restricted by regions or departments. No unit or individual may illegally restrict or exclude legal persons or other organizations outside the region or the system to participate in bidding, and may not illegally interfere in bidding activities in any way.

Article 7 Tendering and bidding activities and their parties shall be subject to supervision carried out in accordance with the law.

The relevant administrative supervision departments shall supervise the bidding and bidding activities in accordance with the law, and investigate and deal with illegal acts in the bidding and bidding activities in accordance with the law.

The administrative supervision of tendering and bidding activities and the specific division of functions and powers of the relevant departments shall be prescribed by the State Council.

Chapter 2 Marks

Article 8 A tenderer is a legal person or other organization that proposes a project subject to tender or conducts tender in accordance with the provisions of this Law.

Article 9 Where a project subject to tender needs to go through the formalities of project examination and approval in accordance with the relevant provisions of the State, it shall first go through the formalities of examination and approval and obtain approval.

The tenderer shall have the corresponding funds or sources of funds for the project subject to tender, and shall truthfully state them in the tender documents.

Article 10 Bidding is divided into open bidding and invitation bidding.

Public bidding means that the tenderer invites unspecified legal persons or other organizations to bid by means of a tender announcement.

Invitation to bid means that the tenderer invites a specific legal person or other organization to bid in the form of an invitation to bid.

Article 11. If key national projects determined by the development planning department of the State Council and key local projects determined by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government are not suitable for public bidding, invitation bidding may be conducted with the approval of the development planning department of the State Council or the people's governments of provinces, autonomous regions and municipalities directly under the Central Government.

Article 12 The tenderer shall have the right to choose the bidding agency by himself and entrust it to handle the bidding matters. No unit or individual may designate a bidding agency for the tenderer in any way.

If a tenderer has the ability to prepare tender documents and organize bid evaluation, he may handle the tender matters on his own. No unit or individual may force it to entrust a bidding agency to handle bidding matters.

For projects that must be subject to tender according to law, if the tenderer handles the tender matters on his own, he shall report to the relevant administrative supervision department for the record.

Article 13 A bidding agency is a social intermediary organization established in accordance with the law to engage in bidding agency business and provide related services.

A bidding agency shall meet the following conditions:

The (I) has a business place and corresponding funds to engage in bidding agency business;

(II) have the corresponding professional strength to prepare bidding documents and organize bid evaluation.

Article 14 The bidding agency shall not have a subordinate relationship or other interest relationship with the administrative organ and other state organs.

Article 15 The bidding agency shall handle the bidding within the scope entrusted by the tenderer and shall abide by the provisions of this Law on tenderers.

Article 16 Where a tenderer adopts the method of public tender, it shall issue a tender announcement. Tender announcements for projects that are subject to tender in accordance with the law shall be published through newspapers, information networks or other media designated by the State.

The tender announcement shall contain the name and address of the tenderer, the nature, quantity, place and time of the project subject to tender, and the method for obtaining the tender documents.

Article 17 Where a tenderer adopts the method of invitation to tender, it shall issue invitations to tender to three or more specific legal persons or other organizations that have the ability to undertake the project subject to tender and have good credit standing.

The invitation to bid shall contain the matters specified in the second paragraph of Article 16 of this Law.

Article 18 A tenderer may, in accordance with the requirements of the project subject to tender, require potential bidders to provide relevant qualification documents and performance information in the tender announcement or invitation to bid, and examine the qualifications of potential bidders; where the State has provisions on the qualifications of bidders, such provisions shall be followed.

The tenderer shall not restrict or exclude potential bidders with unreasonable conditions, and shall not apply discriminatory treatment to potential bidders.

Article 19 A tenderer shall prepare the tender documents in accordance with the characteristics and needs of the project subject to tender. The tender documents shall include all substantive requirements and conditions such as the technical requirements of the project subject to tender, the criteria for examination of the qualifications of bidders, the requirements for tender offers and the criteria for evaluation of bids, as well as the main terms of the contract to be signed.

Where the State has provisions on the technology and standards for a project subject to tender, the tenderer shall, in accordance with such provisions, put forward corresponding requirements in the tender documents.

If it is necessary to divide the bid sections and determine the construction period for a project subject to tender, the tenderer shall reasonably divide the bid sections and determine the construction period, which shall be stated in the tender documents.

Article 20 The tender documents shall not require or indicate specific producers and suppliers and other contents that favor or exclude potential bidders.

Article 21 The tenderer may, in accordance with the specific circumstances of the project subject to tender, organize potential bidders to visit the project site.

Article 22. A tenderer shall not disclose to others the name and quantity of potential bidders who have obtained the tender documents and other information relating to tendering and bidding that may affect fair competition.

If the tenderer has a base bid, the base bid must be kept confidential.

Article 23 If the tenderer makes necessary clarifications or amendments to the tender documents that have been issued, it shall notify all recipients of the tender documents in writing at least 15 days before the deadline for submission of tender documents as required in the tender documents. The clarification or modification is an integral part of the bidding documents.

Article 24 The tenderer shall determine the reasonable time required for the preparation of the tender documents by the bidders; however, for projects that must be tendered according to law, the minimum period from the date of issuance of the tender documents to the date of the deadline for the submission of the tender documents by the bidders shall not be less than 20 days.

Chapter III. I. I.........................................

Article 25 A bidder is a legal person or other organization that responds to the tender and participates in the bidding competition.

If individuals are allowed to participate in bidding for scientific research projects subject to tender in accordance with the law, the provisions of this Law on bidders shall apply to the individual bidding.

Article 26 A bidder shall have the ability to undertake the project subject to tender; where the relevant provisions of the State have provisions on the qualifications of bidders or the tender documents have provisions on the qualifications of bidders, the bidder shall have the prescribed qualifications.

Article 27 Bidders shall prepare their tender documents in accordance with the requirements of the tender documents. The tender documents shall respond to the substantive requirements and conditions set forth in the tender documents.

If the bidding project belongs to construction, the contents of the bidding documents shall include the resumes, achievements and machinery and equipment to be used to complete the bidding project of the project leader and main technical personnel to be dispatched.

Article 28 Bidders shall deliver their tender documents to the place of bidding before the deadline for submission of tender documents as required in the tender documents. After receiving the tender documents, the tenderer shall sign for the preservation and shall not open it. If the number of bidders is less than three, the tenderer shall bid again in accordance with this Law.

The tenderer shall reject the tender documents served after the deadline for submission of the tender documents as required in the tender documents.

Article 29. Before the deadline for submission of bid documents specified in the tender documents, a bidder may supplement, modify or withdraw the submitted bid documents and notify the tenderer in writing. The supplementary and modified contents are part of the bidding documents.

Article 30 If a bidder intends to subcontract part of the non-subject and non-critical work of the winning project after winning the bid in accordance with the actual situation of the project stated in the tender documents, it shall be stated in the tender documents.

Article 31 Two or more legal persons or other organizations may form a consortium and bid together as one bidder.

All parties to the consortium shall have the corresponding ability to undertake the bidding project; if the relevant provisions of the state or the bidding documents have provisions on the qualifications of bidders, all parties to the consortium shall have the corresponding qualifications. For a consortium of units of the same specialty, the qualification level shall be determined according to the unit with the lower qualification level.

The parties to the consortium shall sign a joint bidding agreement, clearly stipulating the work and responsibilities to be undertaken by the parties, and submit the joint bidding agreement together with the bidding documents to the tenderer. If the consortium wins the bid, the parties to the consortium shall jointly sign a contract with the tenderer and bear joint and several liability to the tenderer for the winning project.

The tenderer shall not force the bidders to form a consortium to bid together, and shall not restrict the competition between bidders.

Article 32 Bidders shall not collude with each other in bidding quotations, and shall not exclude the fair competition of other bidders to the detriment of the legitimate rights and interests of the tenderer or other bidders.

A bidder shall not collude with the tenderer in bidding to harm the interests of the State, the public interest or the legitimate rights and interests of others.

It is prohibited for a bidder to seek the bid by offering bribes to the tenderer or members of the bid evaluation committee.

Article 33 A bidder shall not bid for a bid below the cost, nor shall he bid in the name of another person or in other ways falsify his bid to win the bid.

Chapter IV. Opening, Evaluation and Acceptance of Bids

Article 34 Bid opening shall be carried out in public at the same time as the deadline for submission of bid documents set in the tender documents; the place of bid opening shall be the place predetermined in the tender documents.

Article 35 The bid opening shall be presided over by the tenderer and all bidders shall be invited to participate.

Article 36 When opening a tender, the bidder or its elected representative shall check the sealing of the tender documents, or the notarization institution entrusted by the tenderer may check and notarize them; after confirmation, the staff shall open the seal in public and read out the name, tender price and other main contents of the tender documents.

All bid documents received by the tenderer before the deadline for submission of bid documents required in the tender documents shall be opened and read out in public at the time of bid opening.

The bid opening process shall be recorded and filed for future reference.

Article 37 The bid evaluation committee established by the tenderer according to law shall be responsible for the bid evaluation.

For projects subject to tender in accordance with the law, the bid evaluation committee shall be composed of representatives of the tenderee and experts in the technical and economic fields. The number of members shall be an odd number of five or more, and the number of experts in the technical and economic fields shall not be less than 2/3 of the total number of members.

The experts in the preceding paragraph shall have worked in the relevant field for at least eight years and have senior professional titles or the same professional level, and shall be determined by the tenderer from the list of experts provided by the relevant departments of the State Council or the relevant departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government, or from the list of experts in the relevant disciplines in the expert database of the bidding agency.

Those who have an interest with the bidder shall not enter the bid evaluation committee of the relevant project; those who have already entered shall be replaced.

The name list of the members of the bid evaluation committee shall be kept confidential until the results of the bid winning are determined.

Article 38. The tenderer shall take necessary measures to ensure that bid evaluation is conducted in strict confidentiality.

No unit or individual may illegally interfere with or affect the process and results of bid evaluation.

Article 39 The bid evaluation committee may require bidders to make necessary clarifications or explanations on the contents of the bid documents that are not clear, but the clarifications or explanations shall not exceed the scope of the bid documents or change the substantive contents of the bid documents.

Article 40 The bid evaluation committee shall evaluate and compare the bid documents in accordance with the bid evaluation criteria and methods determined in the tender documents; if there is a base price, reference shall be made to the base price. Upon completion of the bid evaluation, the bid evaluation committee shall submit a written bid evaluation report to the tenderer and recommend qualified candidates for winning the bid.

The bid inviter shall determine the winning bidder according to the written bid evaluation report submitted by the bid evaluation committee and the recommend successful candidate. The tenderer may also authorize the bid evaluation committee to directly determine the winning bidder.

Where the State Council has special provisions on the bid evaluation of a specific project subject to tender, such provisions shall apply.

Article 41 The tenderer's tender shall meet one of the following conditions:

The (I) can meet the comprehensive evaluation criteria specified in the bidding documents to the maximum extent;

The (II) can meet the substantive requirements of the bidding documents, and the evaluated bid price is the lowest, except that the bid price is lower than the cost.

Article 42 If, after evaluation, the bid evaluation committee considers that all bids do not meet the requirements of the tender documents, it may reject all bids.

If all tenders for a project subject to tender according to law are rejected, the tenderer shall re-tender in accordance with this Law.

Article 43 Before determining the winning bidder, the tenderer shall not negotiate with the bidder on the substantive content of the tender price, tender plan, etc.

Article 44 The members of the bid evaluation committee shall perform their duties objectively and impartially, abide by professional ethics, and bear personal responsibility for the evaluation opinions they put forward.

Members of the bid evaluation committee shall not have private contact with bidders, and shall not accept property or other benefits from bidders.

The members of the bid evaluation committee and the relevant staff involved in the bid evaluation shall not disclose the evaluation and comparison of the bid documents, the recommend of the successful candidate and other information related to the bid evaluation.

Article 45 After the successful bidder is determined, the tenderer shall issue a notice of winning the bid to the successful bidder and at the same time notify all unsuccessful bidders of the result of winning the bid.

The bid-winning notice shall have legal effect on the tenderer and the winning bidder. After the bid-winning notice is issued, if the tenderer changes the bid-winning result, or if the winning bidder gives up the bid-winning project, it shall bear legal liability according to law.

Article 46 The tenderer and the successful bidder shall, within 30 days from the date of issuance of the bid-winning notice, conclude a written contract in accordance with the tender documents and the bid documents of the successful bidder. The tenderer and the winning bidder may not enter into any other agreement that deviates from the substance of the contract.

Where the tender documents require the winning bidder to submit a performance bond, the winning bidder shall submit it.

Article 47 For a project subject to tender according to law, the tenderer shall, within 15 days from the date of determining the winning bidder, submit a written report on the tender and bid to the relevant administrative supervision department.

Article 48 The bidder shall perform his obligations and complete the winning project in accordance with the contract. The winning bidder shall not transfer the winning project to others, nor shall he transfer the winning project to others after dismemberment.

The winning bidder may, in accordance with the contract or with the consent of the tenderer, subcontract part of the non-subject and non-critical work of the winning project to others for completion. The person who accepts the subcontract shall have the corresponding qualifications and shall not subcontract again.

The winning bidder shall be responsible to the tenderer for the subcontracted project, and the person who accepts the subcontract shall be jointly and severally liable for the subcontracted project.

Chapter V. Legal Liability

Article 49 Whoever, in violation of the provisions of this Law, fails to bid for a project that must be subject to tender, breaks up the project that must be subject to tender into parts, or evades the tender by any other means, shall be ordered to make corrections within a time limit, and may be fined not less than 5‰ but not more than 10 per cent of the contract amount of the project; the person in charge and other persons directly responsible for the unit shall be punished according to law.

Article 50 Where a bidding agency, in violation of the provisions of this Law, divulges confidential information and materials related to bidding and tendering activities, or colludes with a tenderer or bidder to harm the interests of the State, the public interest or the legitimate rights and interests of others, it shall be fined not less than 50,000 yuan and not more than 250,000 yuan; the person in charge directly responsible and other persons directly responsible shall be fined not less than 5% but not more than 10 percent of the amount of the unit; if there is illegal income, the illegal income shall be confiscated; if the circumstances are serious, it shall be prohibited to act as an agent for a project that must be tendered according to law within one to two years and make a public announcement, until the business license is revoked by the administrative department for industry and commerce; if a crime is constituted, criminal responsibility shall be investigated according to law. Those who cause losses to others shall be liable for compensation according to law.

If the acts listed in the preceding paragraph affect the outcome of the bid, the bid shall be invalid.

Article 51 If a bidder restricts or excludes potential bidders with unreasonable conditions, discriminates against potential bidders, compels bidders to form a consortium to bid together, or restricts competition among bidders, it shall be ordered to make corrections and may be fined not less than 10,000 yuan but not more than 50,000 yuan.

Article 52 If the tenderer of a project that must be subject to tender according to law discloses to others the name and quantity of potential bidders who have obtained the tender documents or other information about tender and bid that may affect fair competition, or divulges the bottom of the bid, he shall be given a warning and may be fined not less than 10,000 yuan but not more than 100,000 yuan. The person in charge and other persons directly responsible for the unit shall be punished according to law. Constitute a crime, investigate criminal responsibility according to law.

If the acts listed in the preceding paragraph affect the outcome of the bid, the bid shall be invalid.

Article 53 Where bidders collude with each other or with the tenderer, and the bidder seeks to win the bid by offering bribes to the tenderer or members of the bid evaluation committee, the winning bid shall be invalid, and a fine of not less than 5‰ per thousand of the amount of the winning project shall be imposed on the person in charge and other persons directly responsible for the unit. A fine of not less than 5% but not more than 10% of the unit fine shall be imposed on the unit; if the circumstances are serious, he shall be disqualified from bidding for projects subject to tender in accordance with the law within one to two years and shall be announced until the business license is revoked by the administrative department for industry and commerce; if a crime is constituted, criminal responsibility shall be investigated in accordance with the law. Those who cause losses to others shall be liable for compensation according to law.

Article 54 If a bidder submits a bid in the name of another person or fraudulently obtains a successful bid by other means, the bid shall be invalid and losses are caused to the tenderer, he shall be liable for compensation according to law; if a criminal offence is constituted, he shall be investigated for responsibility according to law.

If a bidder for a project that must be tendered according to law commits any of the acts listed in the preceding paragraph that have not yet constituted a crime, he shall be fined not less than 5‰ and not more than 10 per cent of the amount of the winning project, and the person in charge and other persons directly responsible for the project shall be fined not less than 5% and not more than 10 per cent of the amount of the unit fine; if the circumstances are serious, cancel its bid qualification for one to three years to participate in projects that must be tendered according to law and make a public announcement, until the business license is revoked by the administrative department for industry and commerce.

Article 55 If a tenderer, in violation of the provisions of this Law, negotiates with a bidder on such substantive contents as the bid price or bid proposal for a project subject to tender in accordance with the law, he shall be given a warning and the person in charge and other persons directly responsible shall be punished in accordance with the law.

If the acts listed in the preceding paragraph affect the outcome of the bid, the bid shall be invalid.

Article 56 If the members of the bid evaluation committee accept the property or other benefits of the bidder, the members of the bid evaluation committee or the relevant staff participating in the bid evaluation shall disclose to others the evaluation and comparison of the bid documents, the recommend of the successful candidate and other information related to the bid evaluation, they shall be given a warning, the property received shall be confiscated, and a fine of not less than 3,000 yuan but not more than 50,000 yuan may be imposed, the members of the bid evaluation committee who have committed listed violations shall be disqualified from serving as members of the bid evaluation committee, and shall not participate in the bid evaluation of any project that must be tendered according to law; if a crime is constituted, criminal responsibility shall be investigated according to law.

Article 57 If the tenderer determines the winning bidder in addition to the winning candidate recommend by the bid evaluation committee according to law, and the winning bidder is determined by himself after all the bids for the projects that must be invited according to law are rejected by the bid evaluation committee, the winning bidder shall be invalid and shall be ordered to make corrections, and a fine of not less than 5‰ but not more than 10 per thousand of the amount of the winning project may be imposed; The person in charge and other persons directly responsible shall be punished according to the unit.

Article 58 If the bidder transfers the winning project to another person, dismembers the winning project and transfers it to another person respectively, subcontracts part of the main body and key work of the winning project to another person in violation of the provisions of this Law, or subcontracts again by the subcontractor, the transfer or subcontracting shall be invalid, and a fine of not less than 5‰ percent of the amount of the transferred or subcontracted project shall be imposed; if there is any illegal income, the illegal income shall be confiscated; may be ordered to suspend business for rectification; if the circumstances are serious, the administrative department for industry and commerce shall revoke the business license.

Article 59 If the tenderer and the winning bidder fail to conclude a contract in accordance with the tender documents and the winning bidder's tender documents, or if the tenderer and the winning bidder conclude an agreement that deviates from the substantive contents of the contract, they shall be ordered to make corrections; they may be fined not less than 5‰ but not more than 10 per cent of the amount of the winning project.

Article 60 If the bidder fails to perform the contract concluded with the tenderer, the performance bond shall not be refunded, and if the loss caused to the tenderer exceeds the amount of the performance bond, the excess shall be compensated; if the performance bond is not submitted, the tenderer shall be liable for the loss.

If the winning bidder fails to perform his obligations in accordance with the contract concluded with the tenderer and the circumstances are serious, he shall be disqualified from bidding for a project subject to tender in accordance with the law within two to five years and shall be announced until the administrative department for industry and commerce revokes the business license.

If the contract cannot be performed due to force majeure, the provisions of the preceding two paragraphs shall not apply.

Article 61. The administrative penalties provided for in this Chapter shall be decided by the relevant administrative supervision departments prescribed by the State Council. Except where this Law has already provided for the organs that impose administrative penalties.

Article 62 Any agency that, in violation of the provisions of this Law, restricts or excludes legal persons or other organizations outside the region or the system from participating in bidding, designates a bidding agency for the tenderer, compels the tenderer to entrust a bidding agency to handle bidding matters, or interferes with bidding activities in other ways, shall be ordered to make corrections; the person in charge and other persons directly responsible for the unit shall be given a warning, a demerit, or a major demerit in accordance with the law, and if the circumstances are serious, they shall be demoted, removed, or expelled in accordance with the law.

Individuals who take advantage of their functions and powers to commit the illegal acts mentioned in the preceding paragraph shall be investigated for responsibility in accordance with the provisions of the preceding paragraph.

Article 63 Any functionary of a State organ who is responsible for administrative supervision of tendering and bidding activities in accordance with the law, who practices favoritism, abuses his power or neglects his duty, shall be investigated for criminal responsibility in accordance with the law if the case constitutes a crime; if the case does not constitute a crime, he shall be given administrative sanctions in accordance with the law.

Article 64 If a project subject to tender according to law violates the provisions of this Law and the winning bid is invalid, the winning bidder shall be re-determined from among the remaining bidders in accordance with the conditions for winning the bid as stipulated in this Law or the tender shall be re-invited in accordance with this Law.

Chapter 6: Attachment

Article 65 Bidders and other interested parties who believe that bidding activities do not conform to the relevant provisions of this Law shall have the right to raise objections to the tenderer or complain to the relevant administrative supervision department in accordance with the law.

Article 66 For projects that involve national security, state secrets, emergency rescue and disaster relief, or are under special circumstances such as the use of poverty alleviation funds for work relief, and the need to use migrant workers, etc., and are not suitable for bidding, bidding may not be conducted in accordance with relevant state regulations.

Article 67: Where the lender or fund provider has different provisions on the specific conditions and procedures for bidding for projects that use loans or aid funds from international organizations or foreign governments, the provisions may apply, except for those that violate the the People's Republic of China public interest.

Article 68 This Law shall enter into force as of January 1, 2000.