What are the latest implementation details of the Bidding Law

Chapter 1 General Provisions

Article 1 In order to regulate bidding activities, according to the "People's Republic of China and the National Tendering and Bidding Law (hereinafter referred to as the Tendering and Bidding Law), these regulations are formulated.

Article 2: The construction projects referred to in Article 3 of the Bidding and Bidding Law refer to projects and goods and services related to project construction.

The projects mentioned in the preceding paragraph refer to construction projects, including the new construction, reconstruction, expansion of buildings and structures and related decoration, dismantling, repairs, etc.; the so-called goods related to project construction are Refers to the equipment, materials, etc. that constitute an integral part of the project and are necessary to realize the basic functions of the project; the so-called services related to project construction refer to the survey, design, supervision and other services required to complete the project.

Article 3: The specific scope and scale standards of engineering construction projects that require bidding according to law shall be formulated by the development and reform department of the State Council in conjunction with relevant departments of the State Council, and shall be promulgated and implemented after being approved by the State Council.

Article 4: The development and reform department of the State Council guides and coordinates the national bidding and bidding work, and supervises and inspects the engineering bidding and bidding activities of major national construction projects. The departments of industry and information technology, housing and urban-rural development, transportation, railways, water conservancy, and commerce of the State Council shall supervise relevant bidding activities in accordance with the prescribed division of responsibilities.

The development and reform departments of local people's governments at or above the county level guide and coordinate the bidding and tendering work in their respective administrative regions. Relevant departments of the local people's governments at or above the county level shall supervise bidding activities in accordance with the prescribed division of responsibilities, and investigate and deal with illegal activities in bidding activities in accordance with the law. If the local people's government at or above the county level has other provisions on the division of labor and supervision of the bidding activities of its subordinate departments, such provisions shall prevail.

The financial department shall supervise the budget implementation of government procurement construction projects and the implementation of government procurement policies in accordance with the law.

Supervisory agencies shall supervise supervision objects related to tendering and bidding activities in accordance with the law.

Article 5: Local people's governments at or above the city level divided into districts may, based on actual needs, establish unified and standardized bidding and bidding transaction venues to provide services for bidding and bidding activities. Bidding and bidding trading venues shall not have a subordinate relationship with the administrative supervision department, and shall not be for profit.

The state encourages the use of information networks for electronic bidding.

Article 6: State personnel are prohibited from illegally interfering in bidding activities in any way.

Chapter 2 Bidding

Article 7 For projects that require project approval and verification procedures in accordance with relevant national regulations and are subject to bidding according to law, the scope of bidding, bidding methods, and bidding organization forms It should be reported to the project approval and verification department for review and approval. The project approval and verification departments shall promptly notify the relevant administrative supervision departments of the bidding scope, bidding methods, and bidding organization forms determined by the approval and verification.

Article 8. Projects in which state-owned funds hold a controlling or dominant position and must be subject to tendering in accordance with the law shall be subject to public tendering; however, under any of the following circumstances, tendering may be invited:

(1) ) The technology is complex, has special requirements or is restricted by the natural environment, and there are only a small number of potential bidders to choose from;

(2) The cost of using public bidding accounts for a large proportion of the project contract value.

If there is a situation listed in the second item of the previous paragraph, it is a project stipulated in Article 7 of these Regulations, and the project approval and verification department shall make a determination when approving and approving the project; other projects shall be subject to the relevant administrative procedures applied by the tenderee. The supervisory authority makes the determination.

Article 9 In addition to the special circumstances stipulated in Article 66 of the Tendering and Bidding Law, bidding may not be conducted if there is any of the following circumstances:

( 1) It is necessary to use irreplaceable patents or proprietary technologies;

(2) The purchaser can build, produce or provide it by itself in accordance with the law;

(3) It has been selected through bidding Investors in franchise projects are able to construct, produce or provide by themselves in accordance with the law;

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

If the tenderer commits fraud to apply the provisions of the preceding paragraph, it shall be considered as avoidance of tendering as stipulated in Article 4 of the Tendering and Bidding Law.

Article 10 The tenderee as stipulated in Paragraph 2 of Article 12 of the Tendering and Bidding Law has the ability to prepare tender documents and organize bid evaluations, which means that the tenderer has the technology appropriate to the scale and complexity of the tender project. , professionals in economics and other fields.

Article 11: The qualifications of bidding agencies shall be determined by relevant departments in accordance with laws and regulations of the State Council.

The departments of Housing and Urban-Rural Development, Commerce, Development and Reform, Industry and Information Technology of the State Council shall supervise and manage bidding agencies in accordance with the law according to the prescribed division of responsibilities.

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

Article 13: Bidding agencies carry out bidding agency business within the scope of their qualifications and authorization from the tenderer, and no unit or individual may illegally interfere.

Tendering agencies acting as agents for tendering business shall abide by the Tendering and Bidding Law and the provisions of these Regulations on tenderers. A bidding agency shall not bid or act as an agent in bidding projects, nor may it provide consultation to bidders in bidding projects.

The bidding agency shall not alter, rent, lend or transfer the qualification certificate.

Article 14 The tenderer shall sign a written entrustment contract with the entrusted bidding agency, and the charging standards agreed in the contract shall comply with relevant national regulations.

Article 15 For projects subject to public bidding, bidding announcements and bidding documents shall be issued in accordance with the provisions of the Bidding and Bidding Law and these Regulations.

If the tenderer uses pre-qualification methods to conduct qualification reviews of potential bidders, it shall issue a pre-qualification announcement and prepare pre-qualification documents.

Prequalification announcements and bidding announcements for projects that require bidding according to law shall be published on the media designated by the development and reform department of the State Council in accordance with the law. The content of prequalification announcements or bidding announcements for the same bidding project published in different media should be consistent. Designated media shall not charge fees for publishing domestic pre-qualification announcements and bidding announcements for projects that require bidding according to law.

When preparing pre-qualification documents and bidding documents for projects that require bidding according to law, the standard texts formulated by the development and reform department of the State Council in conjunction with relevant administrative supervision departments should be used.

Article 16 The tenderer shall sell prequalification documents or bidding documents at the time and place specified in the prequalification announcement, bidding announcement or bidding invitation. The release period for pre-qualification documents or bidding documents shall not be less than 5 days.

The fees charged by the tenderer for selling pre-qualification documents and bidding documents shall be limited to compensating the cost of printing and mailing, and shall not be for profit.

Article 17 The tenderee shall reasonably determine the time for submitting the pre-qualification application documents. For projects that require bidding according to law, the time for submitting pre-qualification application documents shall not be less than 5 days from the date when the pre-qualification documents stop being sold.

Article 18: Pre-qualification shall be conducted in accordance with the standards and methods specified in the pre-qualification documents.

For projects where state-owned funds hold a controlling or dominant position and must be tendered according to law, the tenderer shall set up a qualification review committee to review the pre-qualification application documents. The qualification review committee and its members shall comply with the provisions of the Tendering and Bidding Law and these Regulations regarding the bid evaluation committee and its members.

Article 19: After the pre-qualification review is completed, the tenderer shall promptly issue a notice of pre-qualification results to the pre-qualification applicant. Applicants who have not passed pre-qualification are not eligible to bid.

If there are less than 3 applicants who have passed the pre-qualification, the bid shall be re-invited.

Article 20: If the tenderer adopts the post-qualification review method to review the qualifications of bidders, the bid evaluation committee shall review the qualifications of the bidders in accordance with the standards and methods specified in the bidding documents after the bid opening.

Article 21: The tenderer may make necessary clarifications or modifications to the issued prequalification documents or bidding documents.

If the clarification or modification may affect the preparation of prequalification application documents or bidding documents, the tenderer shall notify in writing all persons who have obtained prequalification documents or bidders at least 3 days before the deadline for submitting prequalification application documents or at least 15 days before the deadline for bidding. Potential bidders of the bidding documents; if it is less than 3 or 15 days, the tenderer shall extend the deadline for submitting pre-qualification application documents or bidding documents.

Article 22 If potential bidders or other interested parties have objections to the pre-qualification documents, they shall submit them 2 days before the deadline for submitting the pre-qualification application documents; if they have objections to the bidding documents, they shall Bids must be submitted 10 days before the deadline. The tenderer shall respond within 3 days from the date of receipt of the objection; before issuing a reply, the bidding activities shall be suspended.

Article 23 The content of pre-qualification documents and bidding documents prepared by the tenderer violates the mandatory provisions of laws and administrative regulations, violates the principles of openness, fairness, impartiality and good faith, affects the pre-qualification results or If a potential bidder submits a bid, the bidder for a project that requires bidding according to law shall re-invite bids after revising the pre-qualification documents or bidding documents.

Article 24: When a tenderer divides a bidding project into bidding sections, it shall abide by the relevant provisions of the Bidding Law and shall not use the division of bidding sections to restrict or exclude potential bidders. Tenderers for projects that require bidding according to law shall not use the division of bids to avoid bidding.

Article 25 The tenderer shall indicate the validity period of the bid in the bidding documents. The bid validity period starts from the deadline for submission of bid documents.

Article 26: If the tenderer requires the bidder to submit a bid deposit in the bidding document, the bid deposit shall not exceed 2% of the estimated price of the bidding project. The validity period of the bid bond shall be consistent with the validity period of the bid.

For domestic bidders of projects that are required to conduct bidding according to law, the bid deposit submitted in the form of cash or check shall be transferred from their basic account.

The tenderer shall not misappropriate the bid security deposit.

Article 27 The tenderee may decide on its own whether to prepare a minimum bid. A bidding project can only have one minimum bid. The bottom bid must be kept secret.

Intermediaries that are entrusted with the preparation of base bids shall not participate in bidding for projects entrusted with the preparation of base bids, nor may they prepare bidding documents or provide consultation to bidders for the project.

If the tenderer sets a maximum bid limit, it shall specify the maximum bid limit or the calculation method of the maximum bid limit in the bidding documents. The tenderer shall not set a minimum bid price.

Article 28 The tenderee shall not organize a single or some potential bidders to visit the project site.

Article 29: The tenderer may conduct general contracting bidding for all or part of the project and the goods and services related to the project construction in accordance with the law. If the projects, goods, and services included in the scope of general contracting in the form of temporary valuations fall within the scope of projects that must be tendered according to law and meet the national scale standards, tendering shall be conducted in accordance with the law.

The provisional valuation mentioned in the preceding paragraph refers to the amount of projects, goods, and services that cannot be determined at the time of general contracting bidding and are tentatively estimated by the bidder in the bidding documents.

Article 30: For projects that are technically complex or cannot accurately formulate technical specifications, the tenderer may conduct bidding in two stages.

In the first stage, the bidder submits technical suggestions without quotation in accordance with the requirements of the bidding announcement or bidding invitation. The tenderer determines the technical standards and requirements based on the technical suggestions submitted by the bidder and prepares the bidding documents.

In the second stage, the tenderer provides bidding documents to the bidders who submitted technical suggestions in the first stage, and the bidders submit bidding documents including the final technical plan and bid price in accordance with the requirements of the bidding documents.

If the tenderer requires the bidder to submit a bid deposit, it shall be submitted in the second stage.

Article 31 If the tenderer terminates the bidding, it shall make a timely announcement or notify in writing the potential bidders who have been invited or have obtained pre-qualification documents and bidding documents. If the pre-qualification documents and bidding documents have been released or a bid deposit has been collected, the tenderer shall promptly return the fees collected for the pre-qualification documents and bidding documents, as well as the bid deposit and bank deposit interest for the same period.

Article 32: The tenderer shall not restrict or exclude potential bidders or bidders with unreasonable conditions.

If a tenderer commits any of the following acts, it shall be deemed as restricting or excluding potential bidders or bidders with unreasonable conditions:

(1) To potential bidders or bidders for the same bidding project Bidders provide differentiated project information;

(2) The set qualifications, technical and business conditions are not compatible with the specific characteristics and actual needs of the bidding project or have nothing to do with the performance of the contract;

(3) For projects that require bidding in accordance with the law, performance and awards in specific administrative regions or specific industries will be used as bonus points or bid winning conditions;

(4) Different policies will be adopted for potential bidders or bidders. Qualification review or bid evaluation standards;

(5) Limit or designate specific patents, trademarks, brands, origins or suppliers;

(6) Bidding must be carried out according to law The project illegally restricts the ownership or organizational form of potential bidders or bidders;

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

Chapter 3 Bidding

Article 33 Bidders who participate in bidding for projects that require bidding according to law are not subject to restrictions by region or department, and no unit or individual may illegally interfere .

Article 34: Legal persons, other organizations or individuals who have an interest in the tenderer and may affect the fairness of the tender shall not participate in the bidding.

The person in charge of the unit is the same person or different units with holding or management relationships, and shall not participate in bidding for the same bidding section or the same bidding project without dividing the bidding sections.

Any bid that violates the provisions of the first two paragraphs will be invalid.

Article 35 If a bidder withdraws a submitted bid document, he shall notify the tenderer in writing before the bid deadline. If the bidder has collected a bid deposit, it shall return it within 5 days from the date of receipt of the bidder's written withdrawal notice.

If the bidder withdraws the bidding document after the bidding deadline, the tenderer may not refund the bid deposit.

Article 36 The tenderer shall reject bid documents submitted by applicants who have not passed the pre-qualification examination, as well as bid documents that are delivered after the deadline or are not sealed in accordance with the requirements of the bidding documents.

The tenderer shall truthfully record the delivery time and sealing status of the bid documents and keep them on file for future reference.

Article 37 The tenderer shall indicate whether it accepts consortium bidding in the prequalification announcement, bidding announcement or bidding invitation.

If the tenderer accepts a consortium bid and conducts prequalification, the consortium shall be formed before submitting the prequalification application documents. If the consortium increases, decreases, or changes members after the pre-qualification, the bid will be invalid.

If all parties to the consortium bid individually in their own names for the same bidding project or participate in other consortium bids, the relevant bids will be invalid.

Article 38 If a bidder undergoes major changes such as merger, division, bankruptcy, etc., the bidder shall promptly notify the tenderer in writing. If a bidder no longer meets the qualifications specified in the pre-qualification documents or bidding documents or his bid affects the fairness of the bidding, his bid will be invalid.

Article 39 Bidders are prohibited from colluding with each other in bidding.

If any of the following circumstances occurs, the bidders are colluding with each other in bidding:

(1) The bidders negotiate the substantive content of the bidding documents such as bid price;

(2) The bidders agree on the winning bidder;

(3) The bidders agree that some bidders will give up the bid or win the bid;

(4) Belong to the same group Bidders who are members of associations, chambers of commerce and other organizations bid collaboratively in accordance with the requirements of the organization;

(5) Other joint actions taken by bidders to win the bid or exclude specific bidders.

Article 40 If any of the following circumstances occurs, the bidders will be deemed to have colluded with each other in bidding:

(1) The bidding documents of different bidders are prepared by the same unit or individual;< /p>

(2) Different bidders entrust the same unit or individual to handle bidding matters;

(3) The project management members stated in the bidding documents of different bidders are the same person;

(4) The bidding documents of different bidders are unusually consistent or the bid prices are regularly different;

(5) The bidding documents of different bidders are mixed with each other;

(6) The bid deposits of different bidders are transferred from the accounts of the same unit or individual.

Article 41 It is prohibited for bidders and bidders to collude in bidding.

If any of the following circumstances occurs, the tenderer and the bidder collude in bidding:

(1) The tenderer opens the bidding documents before the bid opening and leaks relevant information to other bidders ;

(2) The tenderer directly or indirectly leaks information such as the minimum bid and the members of the bid evaluation committee to the bidder;

(3) The tenderer expressly or implies that the bidder lowers or raises the price. Bid quotation;

(4) The tenderer instructs the bidder to change or modify the bidding document;

(5) The tenderer expressly or implies that the bidder provides convenience for a specific bidder to win the bid;

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(6) Other collusive behaviors between the tenderer and the bidder in order to win the bid for a specific bidder.

Article 42: Bidding using qualifications and qualification certificates obtained through transfer or leasing, etc., falls under the category of bidding in the name of others as stipulated in Article 33 of the Bidding and Bidding Law.

If a bidder has any of the following circumstances, it is an act of fraud in other ways as stipulated in Article 33 of the Tendering and Bidding Law:

(1) Using forged or altered materials License certificate;

(2) Provide false financial status or performance;

(3) Provide false resumes and labor relationship certificates of project leaders or key technical personnel;

(4) Providing false credit status;

(5) Other acts of fraud.

Article 43: Applicants who submit pre-qualification application documents shall abide by the Bidding Law and the provisions of these Regulations regarding bidders.

Scope of Bidding

Article 3 of the "Tendering and Bidding Law" stipulates that "the following engineering construction projects within the territory of the People's Republic of China include the survey, design, information and construction period of the project , supervision and the procurement of important equipment and materials related to project construction, etc., must be tendered: (1) large-scale infrastructure, public utilities and other projects related to social public interests and public safety; (2) all or part of the use Projects invested with state-owned funds or financed by the state; (3) Projects using loans or aid funds from international organizations or foreign governments. The specific scope and scale standards of the aforementioned projects shall be formulated by the development department of the State Council in conjunction with relevant departments of the State Council and submitted to the State Council for approval. If the law or the State Council has regulations on the scope of other projects that must be subject to bidding, such regulations shall be followed. "

As can be seen from the above, the scope of compulsory bidding specified in the "Tendering and Bidding Law" mainly focuses on the scope. "Engineering construction project" refers to the bidding for the entire process of an engineering construction project, including survey, design, construction, supervision, and procurement of equipment and materials. Engineering survey refers to the measurement, mapping, testing, observation, geological survey, exploration and experiment carried out to find out the topography, soil quality, lithology, geological structure, hydrological conditions and various natural geological phenomena of the construction site of the project. , identification, research and comprehensive evaluation work. Engineering design refers to the preliminary design and construction drawing design carried out before formal construction, as well as the technical design carried out in projects that lack technology and experience. Engineering construction refers to the activities of constructing buildings according to the design specifications and requirements. Project supervision refers to the owner hiring a supervision unit to consult, consult, and supervise the construction activities of the project, and to entrust it with the management of the various contract performance processes signed by the owner and third parties for the implementation of the project construction. The reason why the law Engineering construction projects are the focus of compulsory bidding because there are many problems currently occurring in the field of engineering construction, which have had a very bad impact on the people. One of the most important reasons is the poor implementation of tendering and non-standard procedures, which has given rise to a large number of corrupt practices. According to surveys by relevant departments, in engineering construction projects, the proportion of survey, design, and supervision units are selected in designated ways; only part of the equipment and material procurement is subject to bidding, and the rest are purchased directly by the owner or contractor; although the construction link Most of them took the form of bidding, but many did not strictly follow the principles of "openness, fairness and justice". Therefore, it is very urgent to implement a standardized bidding system. Since 1998, the state has increased investment and accelerated infrastructure construction to stimulate sustained growth of the national economy. Under this situation, improving the efficiency of fund use and ensuring project quality have become top priorities. Therefore, it is the general trend to formulate the "Tendering and Bidding Law" and include engineering construction projects within the necessary scope.

Based on considerations of funding sources and project nature, the law defines compulsory bidding projects as the following:

1. Large-scale infrastructure, public utilities and other projects related to social public interests and public safety .

This is a stipulation based on the nature of the project. Generally speaking, the so-called infrastructure refers to providing basic conditions for the production process of the national economy, which can be divided into productive infrastructure and social infrastructure. The former refers to the facilities provided directly for the production process of the national economy, while the latter refers to the facilities provided indirectly for the production process of the national economy. Infrastructure usually includes energy, transportation, postal and telecommunications, water conservancy, urban facilities, environment and resource protection facilities, etc. The so-called public utilities refer to services with public purposes provided to meet the needs of production and life, such as water supply, power supply, heating, gas supply, science and technology, education, culture, sports, health, social welfare, etc. Judging from the situation in various countries around the world, due to the large investment amounts and long construction cycles of large-scale infrastructure and public utility projects, state investment is basically the mainstay, especially for public utility projects, where state investment accounts for an absolute proportion. From the nature of the project, most infrastructure and public utility projects are related to social public interests and public safety. In order to ensure the quality of the project and protect the safety of citizens' lives and property, governments of various countries generally require the formulation of relevant laws. Except as otherwise provided by law.

2. Projects that are fully or partially invested with state-owned funds or financed by the state.

This is a regulation regarding the source of funds. State-owned funds refer to state fiscal funds (including budgetary funds and extra-budgetary funds) and the self-owned funds of state agencies, state-owned enterprises and institutions. Among them, state-owned enterprises refer to enterprises owned by the people, wholly state-owned companies and state-controlled enterprises. State-owned enterprises include enterprises in which state-owned capital accounts for more than 50% of the total capital of the enterprise, and enterprises in which state-owned capital accounts for more than 50% of the total capital of the enterprise, as well as enterprises in which state-owned assets investors have substantial control although less than 50%. enterprise. All sound and funded projects refer to all construction projects carried out using state-owned funds (regardless of their proportion in the total investment). State-financed construction projects refer to construction projects that are carried out using funds raised by the state through internal performance of government bonds or borrowing sovereign foreign debt from foreign governments and international institutions. These funds raised with national credit as a guarantee and uniformly raised, arranged, used and repaid by the government should also be regarded as state-owned funds.

3. Projects using loans and aid funds from international organizations or foreign governments.

As mentioned earlier, this type of project must be tendered, which is generally required by international financial organizations such as the World Bank and foreign governments. Our country has also recognized this requirement in the bilateral agreements signed with these international organizations or foreign governments. In addition, most of these loans belong to the country's sovereign debt, which is borrowed and repaid by the government. They should be regarded as state-owned capital investment in nature. Judging from the situation in our country, projects using loans from international organizations or foreign governments mainly include the World Bank, Asian Development Bank, Japan Overseas Economic Cooperation Fund, etc., which are basically used for infrastructure and public utility projects. Based on the above reasons, the Bidding and Bidding Law includes such projects within the scope of compulsory bidding.

It should be pointed out that the above three types of projects are only a large and general scope. The specific scope and scale standards of the project, that is, how much investment projects need to be tendered, what kind of projects need to be tendered, how much equipment and materials to purchase need to be tendered, and what types of equipment and materials need to be tendered, shall be determined by the development planning department of the State Council. It will be formulated in conjunction with relevant departments of the State Council, and will be issued and implemented after being submitted to the State Council for approval.