Chapter I General Principles
Article 1 In order to regulate the bidding activities, these Regulations are formulated in accordance with the Bidding Law of People's Republic of China (PRC) (hereinafter referred to as the Bidding Law).
Article 2 The term "construction projects" as mentioned in Article 3 of the Bidding Law refers to projects and goods and services related to project construction.
The project mentioned in the preceding paragraph refers to construction projects, including new construction, reconstruction and expansion of buildings and structures and their related decoration, demolition and repair; Goods related to project construction refer to the equipment and materials that constitute part of the project and are necessary to realize the basic functions of the project; Services related to project construction refer to services such as survey, design and supervision required to complete the project.
Article 3 The specific scope and scale standards of construction projects that must be subject to tender according to law shall be formulated by the development and reform department of the State Council in conjunction with the relevant departments of the State Council, and promulgated for implementation after being approved by the State Council.
Article 4 The development and reform department of the State Council shall guide and coordinate the national bidding work, and supervise and inspect the bidding activities of major national construction projects. The State Council industry and information technology, housing and urban construction, transportation, railways, water conservancy, commerce and other departments, in accordance with the provisions of the division of responsibilities to supervise the bidding activities.
The development and reform departments of local people's governments at or above the county level shall guide and coordinate the bidding work within their respective administrative areas. The relevant departments of the local people's governments at or above the county level shall, in accordance with the prescribed division of responsibilities, supervise the bidding activities and investigate and deal with illegal acts in bidding activities according to law. Where the local people's governments at or above the county level have other provisions on the division of supervisory responsibilities related to bidding activities of their subordinate departments, such provisions shall prevail.
The financial department shall supervise the budget implementation and government procurement policy implementation of government procurement construction projects that must be subject to tender according to law.
Supervisory organs shall supervise the objects of supervision related to bidding activities according to law.
Article 5 Local people's governments at or above the municipal level divided into districts may, according to actual needs, set up unified and standardized bidding and tendering trading places to provide services for bidding and tendering activities. Tendering and bidding trading places shall not be subordinate to administrative supervision departments, and shall not be for profit.
The state encourages the use of information networks for electronic tendering and bidding.
Article 6 State functionaries are prohibited from illegally interfering in bidding activities in any way.
Chapter II Bidding
Seventh in accordance with the relevant provisions of the state, the bidding scope, bidding method and bidding organization form must be submitted to the project examination and approval department for examination and approval. The project examination and approval department shall promptly notify the relevant administrative supervision departments of the scope, method and organizational form of the tender determined by the examination and approval.
Eighth state-owned funds holding or leading position of the project, according to the law must be tender, it should be open tender; But in any of the following circumstances, you can invite tenders:
(a) the technology is complex, there are special requirements or limited by the natural environment, and only a few potential bidders can choose;
(two) the cost of public bidding accounts for a large proportion of the project contract amount.
The project specified in Article 7 of this Ordinance is under any of the circumstances listed in Item (2) of the preceding paragraph, which shall be determined by the project examination and approval department when examining and approving the project; Other projects shall be determined by the tenderer applying to the relevant administrative supervision departments.
Article 9 Except for the special circumstances stipulated in Article 66 of the Bidding Law, no bidding shall be conducted under any of the following circumstances:
(a) the need to adopt irreplaceable patents or proprietary technology;
(2) The purchaser may construct, produce or provide it by himself according to law;
(3) Investors of franchise projects selected through bidding can construct, produce or provide them by themselves according to law;
(four) the need to purchase projects, goods or services from the original winning bidder, otherwise it will affect the construction or functional requirements;
(five) other special circumstances stipulated by the state.
If a tenderer practices fraud in order to apply the provisions of the preceding paragraph, it belongs to the evasion of bidding as stipulated in Article 4 of the Bidding Law.
Article 10 The tenderee stipulated in the second paragraph of Article 12 of the Bidding Law has the ability to prepare bidding documents and organize bid evaluation, which means that the tenderee has technical and economic professionals suitable for the scale and complexity of the project subject to tender.
Eleventh bidding agency qualification in accordance with the provisions of the law and the State Council by the relevant departments.
The competent departments of urban housing and urban construction, commerce, development and reform, industry and informatization in the State Council shall, in accordance with the prescribed division of responsibilities, supervise and manage the tendering agency according to law.
Article 12 A bidding agency shall have a certain number of professionals who have obtained professional qualifications for bidding. The specific measures for obtaining the professional qualification 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.
Thirteenth bidding agencies to carry out bidding agency business within the scope of their qualifications and entrusted by the tenderer, no unit or individual may illegally interfere.
When acting as an agent for bidding business, a bidding agency shall abide by the provisions of the Bidding Law and these Regulations on bidders. A bidding agency shall not bid or act as an agent in the bidding project it represents, nor shall it provide consultation for the bidders of the bidding project it represents.
The tendering agency shall not alter, lease, lend or transfer the qualification certificate.
Article 14 A tenderer shall sign a written entrustment contract with the entrusted tendering agency, and the fees stipulated in the contract shall comply with the relevant provisions of the state.
Fifteenth public bidding projects, should be in accordance with the provisions of the bidding law and the regulations issued a tender announcement, the preparation of tender documents.
Where a tenderer conducts qualification examination of potential bidders by means of pre-qualification, it shall issue a pre-qualification announcement and prepare pre-qualification documents.
The pre-qualification announcement and tender announcement of the project that must be subject to tender according to law shall be published in the media designated by the development and reform department of the State Council according to law. The contents of the prequalification announcement or tender announcement of the same project subject to tender published in different media shall be consistent. The designated media shall not charge fees for publishing domestic pre-qualification announcements and bidding announcements of projects that must be subject to bidding according to law.
The preparation of pre-qualification documents and tender documents for projects that must be subject to tender according to law shall use the standard text formulated by the development and reform department of the State Council in conjunction with the relevant administrative supervision departments.
Article 16 A tenderer shall sell pre-qualification documents or tender documents at the time and place specified in the pre-qualification announcement, tender announcement or invitation to bid. The pre-qualification documents or bidding documents shall be sold for no less than 5 days.
The fees charged by the tenderee for selling prequalification documents and bidding documents are limited to the compensation cost of printing and mailing, and shall not be for profit.
Seventeenth a tenderer shall reasonably determine the time to submit the application documents for pre-qualification. For a project that must be subject to tender according to law, the time for submitting the prequalification application documents shall not be less than 5 days from the date when the prequalification documents stop selling.
Eighteenth pre-qualification shall be carried out in accordance with the standards and methods stipulated in the pre-qualification documents.
Where state-owned funds occupy a controlling or leading position in projects that must be subject to tender according to law, the tenderer shall set up a qualification examination committee to examine the application documents for pre-qualification. The qualification examination committee and its members shall abide by the provisions of the Bidding Law and these Regulations concerning the bid evaluation committee and its members.
Nineteenth after the prequalification, the tenderer shall promptly issue a notice of prequalification results to the prequalification applicant. Applicants who have not passed the prequalification are not qualified to bid.
If there are less than three applicants who have passed the pre-qualification, they shall re-invite tenders.
Article 20 Where a tenderer conducts qualification examination of bidders by post-qualification examination, the bid evaluation committee shall conduct qualification examination of bidders according to the standards and methods specified in the tender documents after the bid opening.
Article 21 A tenderer may make necessary clarifications or amendments to the pre-qualification documents or bidding documents that have been issued. If clarification or modification may affect the preparation of prequalification application documents or bidding documents, the tenderer shall notify all potential bidders who have obtained prequalification documents or bidding documents in writing at least 3 days before the deadline for submitting prequalification application documents or at least 15 days before the deadline for bidding; If it is less than 3 days or 15 days, the tenderee shall postpone the deadline for submitting prequalification application documents or bidding documents accordingly.
Twenty-second potential bidders or other interested parties have objections to the prequalification documents, they shall put forward them two days before the deadline for submitting the prequalification application documents; Any objection to the bidding documents should be raised before the deadline 10. The tenderer shall make a reply within 3 days from the date of receiving the objection; Before giving a reply, the tendering and bidding activities shall be suspended.
Article 23 If the contents of the prequalification documents and bidding documents prepared by the tenderer violate the mandatory provisions of laws and administrative regulations, violate the principles of openness, fairness, justice and good faith, and affect the prequalification results or the bidding of potential bidders, the tenderer of a project that must be subject to bidding according to law shall re-invite bids after modifying the prequalification documents or bidding documents.
Article 24 A tenderer shall abide by the relevant provisions of the Tendering and Bidding Law when dividing tenders for a project subject to tender, and shall not use the division of tenders to restrict or exclude potential bidders. The tenderee of a project that must be subject to tender according to law shall not use sub-tender to avoid bidding.
Twenty-fifth the tenderer shall specify the validity of the tender in the tender documents. The validity of the bid shall be calculated from the deadline for submitting the bid documents.
Article 26 Where a tenderer requests a bidder to submit a bid bond in the tender documents, the bid bond shall not exceed 2% of the estimated price of the project subject to tender. The validity period of the bid bond shall be consistent with the validity period of the bid.
The bid bond submitted by domestic bidders in the form of cash or cheque for the project subject to tender according to law shall be transferred from their basic account.
The tenderer shall not misappropriate the bid bond.
Twenty-seventh the tenderer may decide whether to prepare the pre-tender estimate. A project subject to tender can only have one pre-tender estimate. The pre-tender estimate must be kept confidential.
An intermediary agency entrusted with the preparation of the pre-tender estimate shall not participate in the bidding of the project entrusted with the preparation of the pre-tender estimate, nor shall it prepare the bidding documents or provide consultation for the bidders of the project.
If the tenderer has a maximum bid price limit, it shall specify the maximum bid price limit or the calculation method of the maximum bid price limit in the tender documents. The tenderer shall not stipulate the minimum bid price limit.
Article 28 A tenderer may not organize a single or partial potential bidder to inspect the project site.
Article 29 A tenderer may, in accordance with the law, conduct a general contract tender for the project and all or part of the goods and services related to the project construction. Projects, goods and services that are included in the scope of general contracting in the form of temporary evaluation belong to the scope of projects that must be subject to tender according to law, and meet the scale standards stipulated by the state, they shall be subject to tender according to law.
The term "provisional valuation" as mentioned in the preceding paragraph refers to the amount of projects, goods and services temporarily estimated by the tenderee in the tender documents because the price cannot be determined during the general contract bidding.
Thirtieth of the complex technology or technical specifications can not be accurately formulated for the project, the tenderer can be divided into two stages of bidding.
In the first stage, the bidder submits the technical proposal without quotation according to the requirements of the tender announcement or invitation letter, and the tenderer determines the technical standards and requirements according to the technical proposal submitted by the bidder and prepares the tender documents.
In the second stage, the tenderer provides the bidding documents to the bidders who submitted the technical suggestions in the first stage, and the bidders submit the bidding documents including the final technical scheme and bidding quotation according to the requirements of the bidding documents.
Where a tenderer requires a bidder to submit a bid bond, it shall do so in the second stage.
Article 31 Where a tenderer terminates the tender, it shall make a public announcement in time, or notify the potential bidders who have invited or obtained the prequalification documents and tender documents in writing. If the pre-qualification documents and bidding documents have been sold or the bid bond has been collected, the tenderer shall promptly return the fees charged by the pre-qualification documents and bidding documents, as well as the bid bond and the interest of bank deposits for the same period.
Article 32 A tenderer shall not restrict or exclude potential bidders or bidders with unreasonable conditions.
A tenderer who commits one of the following acts shall restrict or exclude potential bidders or bidders with unreasonable conditions:
(1) Providing different project information to potential bidders or bidders of the same project subject to tender;
(2) The qualification, technology and business conditions set are not suitable for the specific characteristics and actual needs of the project subject to tender or have nothing to do with the performance of the contract;
(three) the project subject to tender according to law is based on the performance and awards of a specific administrative region or a specific industry as a condition for extra points or winning the bid;
(4) adopting different qualification examination or evaluation criteria for potential bidders or bidders;
(5) Defining or designating a specific patent, trademark, brand, country of origin or supplier;
(six) the project that must be subject to tender according to law illegally restricts the ownership or organizational form of potential bidders or bidders;
(seven) to restrict or exclude potential bidders or bidders by other unreasonable conditions.
Chapter III Bidding
Thirty-third bidders to participate in the bidding of projects that must be subject to tender according to law, are not restricted by regions or departments, and no unit or individual may illegally interfere.
Thirty-fourth legal persons, other organizations or individuals who have an interest in the tenderer and may affect the fairness of bidding may not participate in bidding.
If the person in charge of the unit is the same person or different units with holding and management relations, they shall not participate in the bidding of the same bid section or the bidding of the same project subject to tender without dividing the bid section.
In violation of the provisions of the preceding two paragraphs, the relevant bidding is invalid.
Thirty-fifth bidders to withdraw the submitted bid documents, shall notify the tenderer in writing before the deadline for bidding. If the tenderer receives the bid bond, it shall return it within 5 days from the date of receiving the written withdrawal notice from the bidder.
If the bidder cancels the bidding documents after the deadline, the tenderer may not return the bid bond.
Article 36 A tenderer shall reject the bid documents submitted by applicants who have not passed the prequalification, as well as the bid documents that have been delivered late or not sealed according to the requirements of the tender documents.
The bidder shall truthfully record the delivery time and sealing conditions of the bidding documents and file them for future reference.
Article 37 A tenderer shall specify whether or not to accept a consortium bid in the prequalification announcement, tender announcement or invitation to bid.
Where a tenderer accepts the bid of a consortium and conducts prequalification, it shall form a consortium before submitting the application documents for prequalification. If the consortium adds, reduces or replaces members after the prequalification, its bid will be invalid.
If the parties to a consortium bid separately in their own names or participate in the bidding of other consortia in the same bidding project, the relevant bidding is invalid.
Article 38 When the company undergoes major changes such as merger, division or bankruptcy. , the bidder shall promptly notify the tenderer in writing. If a bidder no longer meets the qualification requirements stipulated in the prequalification documents and bidding documents, or if its bid affects the fairness of bidding, its bid is invalid.
Thirty-ninth bidders are prohibited from colluding with each other in bidding.
In any of the following circumstances, bidders collude with each other in bidding:
(a) the substantive contents of the bidding documents such as the bidding quotation negotiated between bidders;
(two) the winning bidder is agreed between bidders;
(3) It is agreed between bidders that some bidders will give up bidding or win the bid;
(4) Bidders belonging to the same group, association, chamber of commerce and other organizations shall cooperate in bidding according to the requirements of the organization;
(five) other joint actions taken by bidders to win the bid or exclude specific bidders.
Fortieth in any of the following circumstances, it shall be deemed that bidders bid in collusion with each other:
(a) the bidding documents of different bidders are compiled by the same unit or individual;
(two) different bidders entrust the same unit or individual to handle the tender matters;
(three) the project management members specified in the bidding documents of different bidders are the same person;
(four) the bidding documents of different bidders are unusually consistent or there are regular differences in bidding quotations;
(5) The bidding documents of different bidders are confused with each other;
(six) the bid bond of different bidders is transferred from the account of the same unit or individual.
Article 41 Bidders are prohibited from colluding with bidders in bidding.
In any of the following circumstances, the tenderer and the bidder collude in bidding:
(a) the tenderer opens the tender documents before the bid opening, and leaks the relevant information to other bidders;
(2) The tenderee directly or indirectly divulges the pre-tender estimate, members of the bid evaluation committee and other information to the bidders;
(3) The tenderer explicitly or implicitly reduces or increases the bid price;
(4) The tenderer instructs the bidder to replace or modify the bidding documents;
(five) the tenderer expressly or implicitly provides convenience for a specific bidder to win the bid;
(six) other collusion between the tenderer and the bidder to obtain the bid of a specific bidder.
Forty-second to transfer or lease the qualifications, qualification certificates for bidding, belongs to the "Bidding Law" provisions of Article 33 of the bidding in the name of others.
Under any of the following circumstances, the bidder commits other fraudulent acts as stipulated in Article 33 of the Bidding Law:
(1) Using forged or altered license documents;
(2) Providing false financial status or performance;
(three) providing false resumes and labor relations certificates of the project leader or major technical personnel;
(4) Providing false credit status;
(5) Other fraudulent acts.
Article 43 Applicants who submit prequalification application documents shall abide by the provisions of the Bidding Law and these Regulations on bidders.
Bidding scope
Article 3 of the Bidding Law stipulates that "the following construction projects in People's Republic of China (PRC), including engineering survey, design, information construction period, supervision and procurement of important equipment and materials related to engineering construction, must be subject to bidding: (1) large-scale infrastructure, public utilities and other projects related to social interests and public safety; (2) Projects that are wholly or partially invested with state-owned funds or financed by the state; (3) Projects that use 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 provisions on the scope of other projects that must be subject to tender, such provisions shall prevail. "
As can be seen from the above, the scope of compulsory bidding stipulated in the Bidding Law mainly focuses on "engineering construction projects", which is the whole process of bidding for engineering construction projects, including survey, design, construction, supervision, equipment and material procurement, etc. Engineering investigation refers to the survey, mapping, test, observation, geological survey, exploration, test, appraisal, research and comprehensive evaluation to find out the topography, soil quality, lithology, geological structure, hydrological conditions and various natural geological phenomena of the engineering construction site. Engineering design refers to the preliminary design and construction drawing design before formal construction, as well as the technical design in technical and inexperienced projects. Engineering construction refers to the activities of building buildings in accordance with design specifications and requirements. Engineering supervision means that the owner hires a supervision unit to consult, consult and supervise the construction activities of the project, and entrusts him with the performance process of various contracts signed by the owner and the third party for the implementation of the project. The reason why the law regards engineering construction projects as the focus of compulsory bidding is because there are many problems in the field of engineering construction at present, which have caused extremely bad influence on the people. One of the most important reasons is that the bidding is not carried out effectively, and the procedures are not standardized, which breeds a lot of corruption. According to the investigation of relevant departments, delimit the proportion of survey, design and supervision units in engineering construction projects; Only part of the procurement of equipment and materials has been tendered, and the rest are directly purchased by the owner or contractor; Although most of the construction links are carried out in the form of bidding, many of them are not carried out in strict accordance with the principle of "openness, fairness and justice". Therefore, it is urgent to implement the standardized bidding system. Starting from 1998, the state increased investment, accelerated infrastructure construction, and stimulated the sustained growth of the national economy. In this situation, it is more urgent to improve the efficiency of capital use and ensure the quality of the project. Therefore, it is the general trend to formulate the Bidding Law to include engineering construction projects in the necessary scope. Considering the source of funds and the nature of the project, the law defines the compulsory bidding project as follows:
1. Large-scale infrastructure, public utilities and other projects related to social interests and public safety.
This is 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 directly provided for the national economic production process, while the latter refers to the facilities indirectly provided for the national economic production process. Infrastructure usually includes energy, transportation, posts and telecommunications, water conservancy, urban facilities, environmental and resource protection facilities, etc. The so-called public utilities refer to services such as water supply, power supply, heat supply, gas supply, science and technology, education, culture, sports, health and social welfare that are provided to the public to meet the needs of production and life. From the situation of countries around the world, due to the large investment and long construction period of large-scale infrastructure and public utilities projects, state investment is the main one, especially public utilities projects, and state investment accounts for an absolute proportion. From the nature of the project, infrastructure and public utilities projects are mostly related to public interests and public safety. In order to ensure the engineering quality and protect the safety of citizens' lives and property, governments all over the world generally require the enactment of relevant laws. Except as otherwise provided by law.
Two. Projects that are wholly or partially invested with state-owned funds or financed by the state.
This is a regulation on the source of funds. State-owned funds refer to state financial funds (including budgetary funds and extra-budgetary funds) and self-owned funds of state organs, state-owned enterprises and institutions. Among them, state-owned enterprises refer to enterprises owned by the whole people, wholly state-owned companies and state-controlled enterprises. State-owned holding enterprises include enterprises whose state-owned capital accounts for more than 50% of the total capital of enterprises and enterprises whose state-owned assets investors actually have control rights. All sound projects with capital investment refer to all construction projects using state-owned funds (regardless of their proportion in the total investment). State-financed construction projects refer to projects that use the funds raised by the state to fulfill national debt at home or borrow sovereign foreign debts from foreign governments and international difficult institutions. These funds raised, arranged, used and repaid by the government with the guarantee of national credit should also be regarded as state-owned funds.
3 projects that use loans or aid funds from international organizations or foreign governments.
As mentioned above, this kind of project must be invited for bidding, which is generally required by international multilateral financial organizations such as the World Bank and foreign governments. In the bilateral agreements signed with these international organizations or foreign governments, China has also recognized this requirement. In addition, most of these loans belong to the state's sovereign debt, which is managed by the government in a unified way and should be regarded as state-owned capital investment in nature. According to China's situation, the projects that use loans from international organizations or foreign governments mainly include the World Bank, the Asian Development Bank and the Japan Overseas Economic Cooperation Fund, which are basically used for infrastructure and public utilities projects. Based on the above reasons, such projects are included in the scope of compulsory bidding in the Bidding Law.
It should be pointed out that the above three types of projects are only a large and general scope. The specific scope and scale standard of the project, that is, what kind of project, equipment and materials need to be tendered, and what kind of equipment and materials need to be tendered, shall be formulated by the development planning department of the State Council in conjunction with the relevant departments of the State Council, and promulgated for implementation after being approved by the State Council.