(Draft for Comment)
Chapter I General Provisions
Article 1 [Legislative Purpose] In order to standardize bidding activities, strengthen the supervision of bidding activities, and protect the national interests, social interests and the legitimate rights and interests of the parties involved in bidding activities, according to the "People's Republic of China * * *"
article 2 [scope of application] the tendering and bidding activities mentioned in article 2 of the tendering and bidding law refer to the activities of purchasing projects, goods and services by means of tendering.
article 3 [construction projects] the construction projects mentioned in article 3 of the tendering and bidding law refer to the projects and the goods and services related to the projects.
the goods related to the project mentioned in the preceding paragraph refer to the equipment and materials that constitute a permanent part of the project and are indispensable for realizing the basic functions of the project. The services related to the project mentioned in the preceding paragraph refer to the survey, design, supervision, project management, feasibility study and scientific research necessary for the completion of the project.
article 4 [scope and scale standard of compulsory bidding] the specific scope and scale standard of engineering construction projects that must be subject to 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, adjusted according to actual needs, and implemented after being submitted to the State Council for approval.
the people's governments of provinces, autonomous regions and municipalities directly under the central government may, according to the actual situation, stipulate the specific scope and scale standards that must be tendered within their respective administrative areas, but they shall not narrow the scope and scale standards that must be tendered in the State Council, raise the scale standards that must be tendered in the State Council, or authorize the people's governments at lower levels to determine the scope and scale standards that must be tendered by themselves.
article 5 [general provisions on administrative supervision] 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 administrative departments in charge of industry and information technology, housing and urban construction, transportation, railways, water conservancy and commerce in the State Council shall, in accordance with the prescribed division of responsibilities, be responsible for the supervision and law enforcement of relevant industries and industrial bidding activities.
the development and reform departments of local people's governments at or above the county level guide and coordinate the bidding work within their respective administrative areas. The development and reform departments of local people's governments at or above the county level and other relevant administrative departments shall, in accordance with their respective functions and duties, supervise bidding activities according to law and investigate and deal with illegal acts in bidding activities.
the supervisory organ shall supervise the objects of administrative supervision who participate in bidding activities, supervise the law enforcement activities related to bidding, and investigate and deal with violations of discipline and law according to law.
Chapter II Bidding
Article 6 [Conditions for Bidding] To carry out bidding activities, the following conditions shall be met:
(1) The tenderer has been established according to law;
(2) if the formalities of examination and approval, approval or filing need to be fulfilled according to the regulations, they have been fulfilled;
(3) There are corresponding funds or sources of funds have been implemented;
(4) having relevant information necessary for bidding;
(5) Other conditions stipulated by laws, regulations and rules.
for the project submitted for examination and approval according to the provisions of item (2) of the preceding paragraph, the relevant project application documents shall be attached with the bidding scheme, including the bidding scope, bidding method and bidding organization form.
article 7 [projects that may not be subject to tender] in case of any of the following circumstances, the project may not be subject to tender:
(1) it involves national security and state secrets and is not suitable for tender;
(2) the emergency project is not suitable for bidding;
(3) the use of government investment funds to implement work-for-work relief requires the use of migrant workers;
(4) there are less than three contractors, suppliers or service providers;
(5) it is necessary to adopt irreplaceable patents or proprietary technologies;
(6) The purchaser has corresponding qualifications and can build, produce or provide it by himself;
(7) The investor of the franchise project selected by means of bidding has the corresponding qualifications to build, produce or provide the project, goods or services of the franchise project by himself;
(8) it is necessary to purchase the project, goods or services from the original contractors, suppliers and service providers, otherwise the requirements of construction or functional support will be affected;
(9) Other circumstances stipulated by laws, administrative regulations or the State Council.
if the tenderee of a project that must be tendered according to law proves the existence of the circumstances specified in the preceding paragraph by fraud, it is an act of evading bidding as stipulated in Article 4 of the Bidding Law.
Article 8 [Self-tendering] A tenderer who meets the following conditions is capable of compiling bidding documents and organizing bid evaluation as stipulated in Paragraph 2 of Article 12 of the Bidding Law, and can handle bidding matters by himself:
(1) Having technical and economic professionals suitable for the scale and complexity of the project subject to tender;
(2) The bidding professionals have bidding experience in the last three years that is equivalent to the scale and complexity of the bidding project;
(3) Other conditions stipulated by laws and regulations.
article 9 [tendering agency] a tendering agency shall abide by the provisions of the tendering and bidding law and these regulations on tenderers. A procuratorial agency shall not act as an agent knowing that the entrusted matters are illegal, nor shall it bid or act as an agent in the bidding project it represents, nor shall it provide consulting services to the bidders of the project.
if a tenderer chooses a bidding agency by way of competition, it shall make an investigation from the aspects of performance, reputation, quality of employees and service plan. The tenderer and the tendering agency shall sign a written entrustment contract. The charging standards agreed in the contract shall comply with the relevant provisions of the state.
article 1 [qualification determination of bidding agency] when determining the qualification of a bidding agency, the relevant administrative departments shall examine its relevant agency performance, credit status, quality and structure of employees, etc. A bidding agency shall have a certain number of professionals who have obtained professional qualification certificates for bidding. A bidding agency engaged in the bidding agency business of central investment projects shall obtain the bidding agency qualification of central investment projects.
A bidding agency shall conduct bidding agency business within the scope of its qualifications, and shall not be illegally interfered or restricted by any unit or individual.
a procuratorial agency shall not alter, resell, lease or lend its qualification certificate, or illegally transfer its qualification certificate in other forms.
Article 11 [Public Bidding and Invitation to Tender] Projects that must be subject to tender according to law, and other projects that should be subject to public tender as stipulated by laws, administrative regulations or the State Council, shall be subject to public tender, but under any of the following circumstances, an invitation to tender may be conducted:
(1) It is not suitable for public tender because of national security or state secrets;
(2) The project is technically complex, has special requirements or is limited by the natural geographical environment, and only a few potential bidders can choose from it;
(3) the cost of public bidding accounts for a large proportion of the total value of the project subject to tender;
(4) laws, administrative regulations or provisions of the State Council are not suitable for public bidding.
article 12 [publication of tender announcement] the tender announcement of a project subject to tender according to law shall be published in newspapers, information networks and other media designated by the development and reform department of the State Council. Among them, the tender announcement of civil construction projects that must be tendered by local people's governments in accordance with the examination and approval authority may be published in the media designated by the development and reform departments of the people's governments of provinces, autonomous regions and municipalities directly under the Central Government.
The tender announcement published on the information network shall last at least until the deadline for issuing the tender documents. The release of the tender announcement shall be fully disclosed, and no unit or individual may illegally interfere with or restrict the place, scope or mode of release of the tender announcement.
article 13 [announcement of prequalification] if a tenderer conducts prequalification according to the specific characteristics and actual needs of a project subject to tender, it shall issue a prequalification announcement. The media and contents of the prequalification announcement shall comply with the provisions of Article 16 of the Bidding Law and Article 12 of these Regulations.
article 14 [prequalification documents] prequalification documents shall be compiled according to the specific characteristics and actual needs of the project subject to tender, including the contents, standards and methods of qualification examination, and shall not contain contents that tend to restrict or exclude potential bidders.
it shall not be less than five working days from the date when the pre-qualification documents are stopped to the date when the pre-qualification application documents are submitted. Answers, clarifications and amendments to the prequalification documents shall be notified in writing to all applicants who have obtained the prequalification documents three days before the deadline for submitting the prequalification application documents, and shall constitute an integral part of the prequalification documents.
article 15 [subject and method of prequalification examination] the prequalification of government investment projects shall be the responsibility of the review committee established by the tenderee, and the membership, personnel composition and expert selection method of the review committee shall be implemented in accordance with the provisions of Article 37 of the Bidding Law.
qualification examination methods are divided into qualified system and limited quantity system. Generally speaking, the qualification system should be adopted, and any prequalification applicant who meets the qualification conditions stipulated in the prequalification documents can pass the prequalification. If there are too many potential bidders, the limited number system can be adopted. The tenderee shall specify in the prequalification documents the qualifications that prequalified applicants should meet, the factors and standards for quantifying the applicants who meet the qualifications, and the number of applicants who have passed the prequalification, but the number shall not be less than nine. If the number of qualified applicants is less than this amount, it will not be quantified, and all applicants who meet the qualifications are deemed to have passed the prequalification.
prequalification shall be conducted in accordance with the standards and methods specified in the prequalification documents. The standards and methods not specified in the pre-qualification documents shall not be used as the basis for qualification examination.
article 16 [prequalification results] after the prequalification, the tenderer shall issue a prequalification approval notice to the applicants who have passed the prequalification, informing them of the time, place and method of obtaining the bidding documents, and at the same time, inform the applicants who have not passed the prequalification in writing of their prequalification results. Applicants who fail to pass the prequalification shall not participate in the bidding.
if there are less than three applicants who have passed the prequalification, the tenderee of the project that must be tendered according to law shall re-qualify or directly bid without prequalification.
article 17 [requirements for prequalification documents and bidding documents] the contents of prequalification documents and bidding documents shall not violate the principles of openness, fairness, justice, honesty and credibility, as well as the mandatory provisions of laws and administrative regulations, otherwise the violation will be partially invalid. If the pre-qualification is affected by some ineffectiveness, the project that must be tendered according to law shall be re-prequalified or directly tendered without pre-qualification; If the normal bidding activities are affected, the project that must be tendered according to law shall be re-tendered.
the relevant administrative departments in the State Council shall formulate standard prequalification documents and standard bidding documents, which shall be used by the tenderee in accordance with relevant regulations.
article 18 [division of bid sections] if it is necessary to divide the bid sections or contract packages, the tenderer shall reasonably divide them, determine the work content and completion period of each bid section or contract package, and truthfully state them in the tender documents.
the tenderee shall not use the divided blocks or contract packages to avoid bidding, false bidding, restrict or exclude potential bidders from bidding.
article 19 [bid bond] a tenderer may require a bidder to submit a bid bond in the tender documents. The bidder shall submit the bid bond in accordance with the requirements of the tender documents, otherwise it shall be invalidated.
the bid bond can be bank guarantee, transfer check, bank draft, etc. The bid bond shall not exceed 2% of the total bid price. The validity period of bid bond shall be consistent with the validity period of bid.
except for overseas bidders, the bid bond shall be transferred out of the bidder's basic deposit account by means of transfer check or remittance; In case of bank guarantee, bank draft, etc., it shall be issued by the bidder's bank in basic deposit account.
article 2 [bid validity period] a tenderer shall specify the bid validity period in the tender documents. The validity of the bid shall be calculated from the deadline for submission of the bid documents stipulated in the tender documents.
in case of special circumstances before the end of the bid validity period, the tenderee may request all bidders to extend the bid validity period in writing. If the bidder agrees to extend the bid, it shall not be required or allowed to modify the substantive contents of its bid documents, but the validity period of its bid bond shall be extended accordingly; If the bidder refuses to extend the bid, its bid will be invalid, but the bidder has the right to recover its bid bond.
article 21 [preparation of pre-tender estimate] the tenderer may decide whether to prepare the pre-tender estimate according to the specific characteristics and actual needs of the project. The pre-tender estimate shall be prepared by the tenderer himself or by an intermediary agency. A project subject to tender can only have one pre-tender estimate. No unit or individual may force the tenderee to prepare or submit the pre-tender estimate for examination, or interfere in determining the pre-tender estimate.
article 22 [issuance of tender documents or prequalification documents] a tenderer shall issue prequalification documents or tender documents at the time and place specified in the prequalification announcement, tender announcement or invitation to bid. From the date when the prequalification documents or tender documents are issued to the date when they are stopped, the minimum time shall not be less than five working days. Pre-qualification documents or tender documents shall not be returned after they are issued.
the prequalification documents and bidding documents of government investment projects shall be made public to the public in an appropriate way from the date of issuance to the deadline for submitting prequalification application documents or bidding documents, and shall be subject to social supervision.
the fees for pre-qualification documents or bidding documents shall be limited to the compensation for the cost of printing and mailing, and shall not be for profit.
if there are less than three applicants who have obtained the prequalification documents for the project that must be tendered according to law until the date when the prequalification documents or bidding documents are stopped, the tenderee shall re-prequalify or directly invite tenders without prequalification; If there are less than three potential bidders who have obtained the tender documents, the tenderer shall re-tender.
article 23 [site visit] according to the specific conditions of the project subject to tender, a tenderer may organize potential bidders to visit the project site, introduce relevant information to them and answer questions raised by potential bidders. The tenderer shall be responsible for the truthfulness and accuracy of the information it introduces to potential bidders; Potential bidders are responsible for their judgments and decisions based on the information introduced by the tenderee.
the tenderer shall not organize individual potential bidders to visit the site alone or separately.
Article 24 [Clarification and Modification of Bidding Documents] Before the deadline for submission of bidding documents, the tenderee may make necessary clarifications or modifications to the issued bidding documents. If the clarification or modification may affect the preparation of bidding documents by bidders, the tenderer shall notify all potential bidders who have obtained the bidding documents in writing at least fifteen days before the deadline for submitting bidding documents; If it is less than fifteen days, the tenderer shall postpone the deadline for submission of bid documents.
article 25 [termination of bid invitation] except that the project subject to bid invitation is cancelled due to force majeure or other reasons not attributable to the bid inviter, the bid inviter shall not terminate the bid invitation without authorization after issuing the prequalification announcement, the bid invitation announcement or the bid invitation letter.
if the tender is terminated, the tenderee shall timely issue a notice of termination of the tender through the original announcement media, or notify the invited bidders in writing; If pre-qualification documents or bidding documents have been issued, all those who have obtained qualifications shall also be notified in writing.