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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II PROCEDURES FOR BID INVITATION CHAPTER III STANDARDS FOR GIVING SCORES BY THE APPRAISAL BODY CHAPTER IV PREVENTION OF EXCESSIVE CENTRALIZATION CHAPTER V SUPERVISION OVER, INSPECTION AND MANAGEMENT ON BID INVITATION CHAPTER VI SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. The present Measures are formulated for the purpose of strengthening administration on the work of bid invitation for purchasing companies in projects using foreign government loans, regulating the system of bid invitation for purchasing companies, boosting up the transparency of the bid invitation work, and improving the work efficiency of bid invitation, as well as ensuring the carrying out of the bid invitation work fairly, justly, openly, and effectively. Article 2. The "Projects using foreign government loans" (hereinafter referred to the "loan projects") mentioned in the present Measures shall refer to those utilizing foreign government loans (including loans supplied without conditions attached from Japanese International Synergy Bank, and loans provided by Nordic Investment Bank) and other foreign loans under preferential terms stipulated by the State Council. Article 3. The "Purchasing companies" in the present Measures shall refer to the companies that have the Class A Qualification Certificate for International Bid Invitation Participation (unless there are different requirements in the loan granting country) issued by the Ministry of Commerce. Article 4. The "borrowers" in the present Measures refer to the relevant institutions or legal entities that sign the re-loaning agreement with the re-loaning bank. CHAPTER II PROCEDURES FOR BID INVITATION Article 5. The Ministry of Finance shall notify the relevant departments, finance offices or bureaus of provinces, autonomous regions, municipalities directly under the Central Government, and cities under separately state planning (hereinafter referred to the local finance departments) to carry out the work of bid invitation for choosing purchasing companies for those loan projects that meet the requirements. Article 6. The local finance departments shall, after receiving the notice of the Ministry of Finance, organize or guide or supervise the borrower to carry out the work of bid invitation for purchasing companies. In order to improve work efficiency, all the work of bid invitation for purchasing companies with loan projects shall be completed with 40 working days from the date when the Ministry of Finance issues the notice. If any work of bid invitation for any project fails to be completed within the time limit, the Ministry of Finance shall determine the purchasing company by drawing out at random on the top ten purchasing companies on the basis of the statistical conditions of accumulative amount of loan projects undertaken by any purchasing company on commission basis of the previous year. Article 7. A borrower shall deliver a tender invitation letter (For the format, see Attachment I) to three or more purchasing companies simultaneously. For a project package involving at least two sub-projects, one tender procedure will apply as a single project. The deadline in the tender invitation letter for a purchasing company to submit agency application form shall be at least ten workdays from the date of delivery of the bid invitation letter to the date of service of the agency application form, as evidenced by postal stamps or the signing in by the entity of the borrower. Article 8. Any purchasing company that receives a tender invitation letter shall fill in an agency application form (For the format, see Attachment II) as required. The agency application form shall be sealed up and submitted to the address and at the time stipulated in the tender invitation letter. An agency application form shall bear the signature of the general manager or deputy general manager of the purchasing company with the corporate stamp. In case fewer than three purchasing companies have submitted their agency application forms by the designated deadline, the borrower shall invite new purchasing companies to attend the bid tendering apart from those to whom it has submitted a tender invitation letter. If there are still less than three purchasing companies in the accumulative total have submitted their agency application forms after the second round of tender invitation, no new invitation may be offered any more, and the appraisal may be carried out within the scope of purchasing companies that have received the agency application form. Purchasing companies may apply for joint bid tendering based on voluntary negotiations, but one of the parties will be nailed down as the sponsor, and scores earned by the sponsor for such an applicant during the tender evaluation procedure will be viewed as those for the joint bid tendering. Article 9. A borrower shall organize an examination and appraisal committee (hereinafter referred to the "appraisal body") consisting of five or seven members (hereinafter referred to the "appraisal members") with a representative of the borrower chairing the appraisal body and assuming the overall responsibilities over the appraisal activities. The local finance departments may send representatives to the appraisal body and perform the duty of appraisal members in case of Class B projects; and in principle, local finance departments shall not send representatives to the appraisal body in case of Class C projects. Article 10. A purchasing company shall have its agency application form sealed and submitted to the borrower. The head of the appraisal body shall preside over the appraisal meeting and open all the agency application forms at the same time, and all the appraisal members will give their scores independently on the spot on the basis of the given criteria of the appraisal body prescribed in Chapter III of the present Measures. After all the appraisal members have given their respective scores, the highest score and the lowest score of the outcome shall be excluded, and the scores given by the rest of the appraisal members shall be added up, the purchasing company with the highest score shall be the bid winner. In case two or more purchasing companies have the same score, which is higher than those of other companies, the appraisal members shall take a vote on these companies onsite (with no need to give scores), and the company with the most votes shall be the bid winner. Article 11. The appraisal body shall keep confidential the contents of agency application forms submitted by any purchasing company, and no appraisal member may disclose the appraisal result before it is announced. The purchasing companies taking part in the bid tendering is prohibited from imposing any influence on any appraisal member by any improper means, and no entity or individual is permitted to interfere with the appraisal work. Article 12. The appraisal body shall submit to the local finance department a report in detail the composition of the appraisal members, appraisal procedures, scores for each of the applicant purchasing companies and the final appraisal results within five working days after completion of the appraisal procedure. The local finance department shall make examination and verification after receiving the appraisal results according to the relevant provisions of the present Measures, but may not change the appraisal results of the appraisal body at will. If the local finance department has any different opinions on the appraisal results, it may submit the opinions together with the appraisal results to the Ministry of Finance within 5 workdays. And the Ministry of Finance shall send letter of confirmation to the local finance department within 10 workdays after receiving the report and send a copy to the bid winner. The borrower and the winning purchasing company will enter into a commission agreement (For the format, see Attachment III) within 15 workdays after receiving the confirmation letter of the Ministry of Finance. After the bid invitation for purchasing companies ends, all the original documents of bid invitation and bid tendering and scoring records shall be kept in the archives by the borrower for two years for future reference. Article 13. The Ministry of Finance shall notify the local finance departments to make bid invitation on purchasing companies through different methods under the following specific circumstances: (1) Implementing project packages on the projects subject to more than two departments or provinces, autonomous regions, municipalities directly under the Central Government, and cities under separate state planning; (2) Where any loan granting country has special requirements; (3) It is urgent to implement the project, and it is unable to complete the work of bid invitation for purchasing companies in normal time; or (4) Other circumstances. CHAPTER III STANDARDS FOR GIVING SCORES BY THE APPRAISAL BODY Article 14. For loan projects of US$ 5 million and above: (1) If an accumulated total of US$ 30 million or above of loan projects has been undertaken on commission basis in the past three years, 25 scores; if the amount is US $ 20 million (inclusive of US $ 20 million) up to US$ 30 million, 20 scores; if the amount is US$ 10 million (inclusive of US $ 10 million) up to US $ 20 million, 15 scores; and if the amount is US $ 5 million (inclusive of US $ 5 million) up to US $ 10 million, 10 scores; and 5 scores for the amount of US $ 5 million. And the relevant confirmation letter of the Ministry of Finance shall be attached as required; (2) An accumulated total of US$ 30 million or above of complete set of equipments of non-loan projects has been shipped and delivered in the form of imports in the past three years, 20 scores; if the amount is US$ 10 million (inclusive of 10 million) up to US $ 30 million, 15 scores; and if the amount is US$ 5 million (inclusive of US$ 5 million) up to US$ 10 million, 10 scores; and 5 scores for the amount of less than US $ 5 million; (3) The performance of undertaking the bid invitation business of the projects of the same industry, 0-10 scores; (4) Being responsible for the self-qualification, ability and performance of the personnel of purchasing business, 0-15 scores; (5) The work plan and the workload to be put into, 0-15 scores; and (6) Other technical factors that need to be taken into consideration according to the character of the projects, 0-10 scores. Article 15. For loan projects less than US $ 5 million: (1) If an accumulated total of US$ 20 million or above of loan projects has been undertaken on commission basis in the past three years, 25 scores; if the amount is US $ 10 million (inclusive of US $ 10 million) up to US$ 20 million, 20 scores; if the amount is US$ 5 million (inclusive of US $ 5 million) up to US $ 10 million, 15 scores; and if the amount is US $ 3 million (inclusive of US $ 3 million) up to US $ 5 million, 10 scores; and 5 scores for the amount of less than US $ 3 million. And the relevant confirmation letter of the Ministry of Finance shall be attached as required; (2) An accumulated total of US$ 20 million or above of a complete set of equipments of non-loan projects has been shipped and delivered in the form of imports in the past three years, 20 scores; if the amount is US$ 10 million (inclusive of US $ 10 million) up to US $ 20 million, 15 scores; and if the amount is US$ 5 million (inclusive of US$ 5 million) up to US$ 10 million, 10 scores; and 5 scores for the amount of less than US $ 5 million; (3) The performance of undertaking the bidding business of the projects of the same industry, 0-10 scores; (4) Being responsible for the self-qualification, ability and performance of the personnel of purchasing business, 0-15 scores; (5) The work plan and the workload to be put into, 0-15 scores; and (6) Other technical factors that need to be taken into consideration according to the character of the projects, 0-10 scores. Article 16. In case any purchasing company fails to collect handling charges in accordance with the Interim Provisions on the Administration of Purchasing Work under Foreign Government Loans (No. 34 [1999] of the Ministry of Finance), the tender shall be discarded as useless. In case any purchasing company is praised by the Ministry of Finance by circulating a report due to outstanding achievements in the work, it may be added zero to five points; if it is criticized by the Ministry of Finance through circulating a report due to issues arising in the work, it may be reduced by zero to five points. CHAPTER IV PREVENTION OF EXCESSIVE CENTRALIZATION Article 17. Efforts shall be made to avoid excessive centralization resulted from sector/local protectionism in any form in selecting a purchasing company for a loan project. The trend of excessive centralization occurs when the amount of loan projects won by any company through tender procedures is in excess of 40% of the total value of all the loan projects subject to bid invitation in any one calendar year, or the amount of local loan projects won by any local company through bidding procedures is in excess of 50% of the total value of the loan projects subject to bid invitation in its locality (province, autonomous region, municipality directly under the Central Government, or city under separate state planning) in any one calendar year. The Ministry of Finance will make regular statistical survey over the tender-related activities for loan projects and impose restrictive measures on purchasing companies that have the trend of excessive centralization. CHAPTER V SUPERVISION OVER, INSPECTION AND MANAGEMENT ON BID INVITATION Article 18. The finance departments at all level shall strengthen supervision over, inspection and administration of the bid invitation process and implementation of the commission agreement, and shall circulate a report on relevant conditions to the Ministry of Finance. All the relevant entities shall observe the relevant domestic laws and regulations and the relevant provisions of the loan granting country. If any entity has any act in violation of any regulation, the Ministry of Finance shall take measures such as circulating a report of public criticism or suggesting to cancel the qualification of bid tendering, etc.. CHAPTER VI SUPPLEMENTARY PROVISIONS Article 19. The local finance department shall formulate detailed implementation rules in accordance with the present Measures and the relevant provisions of the Ministry of Finance on the work of purchasing of foreign government loans, but the detailed implementation rules shall not conflict with the present Measures. Article 20. The present measures shall be referred to in handling the work of bid invitation for purchasing companies using loan projects of enterprises or entities directly under the Central Government. Article 21. In case the existing relevant provisions on the administration of foreign government loans do not correspond with the present Measures, the present Measures shall prevail. Article 22. The present Measures shall come into force as of the date of promulgation. Attachments: I Tender Invitation Letter (format) II Agency Application Form (Format) III Commission Agreement (Format) ATTACHMENT I TENDER INVITATION LETTER (FORMAT) _______ Company: This entity is going to use foreign government loans in an equivalent of US $_____ in the construction of the project ________, and the purchase will start in year ______. In order to complete the aforesaid purchase tasks, selection of agency purchasing company through tendering is hereby conducted according to relevant provisions. In order to facilitate the companies' participation in tendering, relevant matters are hereby notified by letter as follows: 1. Brief introduction of the project (filled in by the borrower). 2. Brief introduction of the purchase (filled in by the borrower). 3. Please submit the agency application form in line with the requirements of format of the "agency application form" attached below. 4. The deadline for submitting the agency application form is Year____ Month____ Date____ Time____ (evidenced by the postal stamp or bearing the signature of this entity) 5. The agency application form shall be submitted to the following address: Address: ______________________________________ Contact person: _________________________________ Telephone: _____________________________________ Fax: ___________________________________________ ____________________________ (Name of the borrower) ____________________________ (Official seal) _____________________________(Date) ATTACHMENT II AGENCY APPLICATION FORM (FORMAT) ________ (Name of the borrower): The tender invitation letter for the project __________ from your entity has been received, and our company is willing to participate in the tendering agency for this project. According to the provisions of the Bid Invitation Measures for Purchasing Companies in Projects Using Foreign Government Loans formulated by the Ministry of Finance, the agency application form of our company is hereby submitted to you for examination and evaluation. 1. Brief introduction of the company 2. Charging types and amount of this project and other information 3. The accumulative amount of money of the projects using foreign government loans undertaken on commission basis in the past 3 years (the relevant confirmation letter of the Ministry of Finance shall be attached) 4. The shipping and delivery of complete sets of equipments for projects of non-foreign government loans undertaken in the past 3 years 5. Performance of the tendering projects of the same industry undertaken by the company 6. Qualifications, capacity and performance of the purchasing personnel responsible for this project 7. Work plan and planned workload to be rendered in 8. Other technological factors need to be taken into consideration according to the characteristics of the project Address of the purchasing company: _______________________ Telephone: ______________________________ Fax: ___________________________________ ____________________________ (Name of the purchasing company) _____________(Signature of the general manager or deputy general manager) _____________________________ (Official seal of the company) _____________________________ (Date) ATTACHMENT III COMMISSION AGREEMENT (FORMAT) Contract number: Party A (the borrower): Party B (the purchasing company): The authorized representatives of Party A and Party B have, according to the relevant provisions of the Contract Law of the People's Republic of China, reached the following agreement on the purchasing work of the project _________ using loans from the government of _________ : ARTICLE 1 GENERAL PROVISIONS 1.1 Party A authorizes Party B to handle the relevant purchasing businesses within the authorized scope stipulated in Article 3 of this Agreement, Party B shall sign and perform the purchasing contract as an agent of Party A, and Party A agrees to bear the consequences of the commission conducted by Party B, among which are the rights and obligations, business risks and income under the purchasing contract. 1.2 Party B shall, based on the principle of good faith, earnestly perform the obligations under this Agreement and guarantee that its business activities are in accordance with Chinese laws, international treaties and customs. Party B shall bear the liabilities corresponding to its own faults, but shall not bear the liabilities for the losses caused to Party A and the relevant damages due to the failure of the foreign party to perform the obligations under the purchasing contract. 1.3 Both Party A and Party B agree to make purchase according to the relevant provisions of the Ministry of Finance and the loan granting country. 1.4 Party B shall do a good job of business affairs based on its professional knowledge and business experiences in the performance of the purchasing contract, and safeguard the lawful rights and interests of Party A; Party A shall answer for the technological work depending on its technological strength or the professional technological design entities, and shall actively assist Party B in the business work and abide by the stipulations of the purchasing contract and the relevant business customs. Party A and Party B shall cooperate closely to ensure the smooth execution of the purchasing contract. ARTICLE 2 NAME OF THE PROJECT AND THE PURCHASING SUM ARTICLE 3 SCOPE OF WORK AND OBLIGATIONS OF PARTY A ARTICLE 4 SCOPE OF WORK AND OBLIGATIONS OF PARTY B ARTICLE 5 CHARGING TYPES AND AMOUNT (among which Party A shall pay 20% of the handling charges for commission in advance before signing the purchasing contract, 75% progress charges in the execution of the purchasing contract, and 5% close charges within 15 days from the day of payment of the purchasing contract). ARTICLE 6 DISPUTES SETTLEMENT Party A and Party B shall settle the disputes arising in the execution of this Agreement through friendly negotiation; where the negotiation fails, either party may resort to the people's court for settlement, any dispute related to this Agreement shall be subject to the jurisdiction of the people's court in the place where Party B is located. ARTICLE 7 The contact related to the important matters under this Agreement shall be conducted in written form. Where there is necessity to amend or supplement this Agreement, the authorized representatives of both parties shall come to consensus through negotiation and sign a written supplemented agreement as an indispensable part of this Agreement. ARTICLE 8 This Agreement shall be in duplicate, with one copy to be reserved by each party. This Agreement shall take effect after the authorized representatives from Party A and Party B affix their signatures and put the official seals of legal person on it, and shall terminate on the thirtieth day after the term of quality assurance of the goods purchased expires or the ____th year after this Agreement takes effect, the earlier date shall prevail. The termination of this Agreement shall not affect the recovery and liquidation of the unsettled debts between Party A and Party B, and the continuous compliance and performance of the durative obligations such as the clauses of intellectual property protection according to the stipulations of this Agreement. ARTICLE 9 The matters not included in this commission agreement shall be handled according to the relevant provisions of the Contract Law of the People's Republic of China. ARTICLE 10 If either of the parties changes its name, address, opening bank or bank account, it shall notify the other party without delay. The mail address, contact person and bank account of both parties are as follows: Party A: Legal address: Zip code: Telephone: Fax: Contact person: Opening bank: Account name: Account Number: Bank address: Bank zip code: Party B: Legal address: Zip code: Telephone: Fax: Contact person: Opening bank: Account name: Account Number: Bank address: Bank zip code: Party A: Authorized representative: Time of signing agreement: Place of signing agreement: (Official seal of legal person) Party B: Authorized representative: Time of signing agreement: Place of signing agreement: (Official seal of legal person) |
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