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TABLE OF CONTENTS CHAPTER I GENERAL PROVISIONS CHAPTER II BID INVITATION CHAPTER III BIDDING CHAPTER IV BID OPENING, EVALUATION, AND WINNING CHAPTER V RULES FOR PUNISHMENT CHAPTER VI SUPPLEMENTARY PROVISIONS CHAPTER I GENERAL PROVISIONS Article 1. In order to regulate the activities of survey and design tender of construction projects, to improve the economic benefits of investment and to guarantee the project quality, the present Measures are enacted in accordance with the Bidding Law of the People's Republic of China. Article 2. The present Measures shall apply to the activities of survey and design tender of construction projects within the People's Republic of China. Article 3. With respect to the construction projects meeting the range and standards set forth in the Provisions on the Range and Scale Standards for Tender of Construction Projects (Order No.3 of the State Development Planning Commission), tender must be carried out in accordance with the present Measures. No entity or individual may avoid inviting bids by breaking a project, which is subject to bidding according to law, into parts or by any other means. Article 4. Where a project subject to government examination and approval provided by the state is under any of the following circumstances, survey and design of that project may be exempted from bidding upon approval: (1) The project involves state security or state secrets; (2) The project is for emergency treatment and disaster relief; (3) The major techniques and technology employ certain patents or know-how; (4) The technology is so complicated or professional that there are fewer than 3 survey and design entities that can satisfy the conditions and no effective competition can be formed; or (5) A completed project needs to be reconstructed, expanded, or needs technical reform, and design by other entities will affect the support functions of the project. Article 5. The work of survey and design bidding shall be assumed by the tenderee. No entity or individual may illegally intervene with the bidding activities by any means. Article 6. The departments of development planning, economy and trade, construction, railway, communications, information industry (communication, electronics), water resources, civil aviation, and radio and television, at various levels shall, pursuant to the Circular of the General Office of the State Council on Distributing the Opinions on the Division of the Duties of Administrative Supervision over Bidding Activities of the Relevant Departments under the State Council (No.34 [2000] of the General Office of the State Council) and the division of duties provided by the localities, supervise the activities of survey and design bidding of construction projects, and punish the illegal acts in the bidding activities according to law. CHAPTER II BID INVITATION Article 7. A tenderee may, on the basis of different characteristics of each construction project, apply once-and-only overall survey and design bidding; or apply phased or itemized bidding according to the technical requirements, provided that the integrity and consecutiveness of the project is ensured. A tenderee may not, by taking advantage of the preceding paragraph, avoid the bidding by breaking a project, which is subject to bidding according to law, into parts or by any other means. Article 8. With respect to a construction project subject to bidding according to law, the tenderee may invite bids for contracting the whole survey, design, or construction of the project, or purchase of the important equipment and materials related to the project construction. Article 9. A construction project subject to survey and design bidding according to law shall satisfy the following conditions at the time of bidding: (1) If project is subject to examination and approval pursuant to the relevant provisions of the state, the examination and approval formalities are completed and the approval is obtained; (2) The funds needed for the survey and design have been ensured; (3) The necessary basic materials and data for survey and design have been collected; and (4) Other conditions provided for by laws and regulations. Article 10. Survey and design bidding of construction projects is divided into open bidding and selected bidding. The construction projects that are completely financed by state-owned funds or the investment of state-owned funds takes the controlling or leading position, the state key projects determined by the development and reform department under the State Council, and the local key projects determined by the people's governments of the provinces, autonomous regions, and municipalities directly under the Central Government, must be subject to open bidding, except those meeting the conditions specified in Article 11 hereof and obtain the approval according to law. Article 11. For a construction project subject to survey and design biding according to law, selected bidding may be carried out under any of the following circumstances: (1) The project is very technical or professional, or the environment and resource conditions are special, and thus there are a limited number of tenderers meeting the conditions; (2) The funds needed for open biding would account for too large a proportion in the total investment of the construction project; (3) The construction conditions are restricted by natural factors, and open bidding would affect the timing for implementation of the project. Where the method of selected bidding is applied, the tenderee shall ensure that there are more than 3 specified corporations or other organizations that have the capacity to undertake the survey and design of the project inviting bids and that have the corresponding qualifications. Article 12. A tenderee shall sell the bid invitation documents or pre-qualification documents pursuant to the time and place specified in the bidding announcement or bid invitations. There shall be a period no shorter than 5 workdays between the day of sale of the bid invitation documents or pre-qualification documents and the day of stop of the sale. Article 13. Where pre-qualification is carried out, the tenderee shall sell the bid invitation documents only to the pre-qualified potential tenderers, and shall at the same time inform those unqualified potential tenderers of the pre-qualification results. Article 14. All the pre-qualified potential tenderers shall be allowed to participate in the bidding. The tenderee may not restrict or exclude any pre-qualified potential tenderer from participating in the bidding by unreasonable conditions, such as drawing ballots or numbers. Article 15. A tenderee shall formulate the bid invitation documents on the basis of the characteristics and needs of the project inviting bids. The bid invitation documents for survey and design shall include the following contents: (1) Instructions for bidding; (2) Format of the bid documents and the major contract terms; (3) Project specification, including the fund source; (4) Scope of the survey and design, and requirements on the progress, phases, and depth of the survey and design; (5) Basic materials for the survey and design; (6) Method of payment for the survey and design, whether compensation will be given to bid losers, and the compensation standards; (7) Requirements on bidding quotes; (8) Standards for qualification examination of bidders; (9) Standards and methods of bid evaluation; and (10) Valid term of a bid. Valid term of a bid refers to the valid term of the bid documents that is specified in the bid invitation document and is calculated from the day of deadline for submission of the bid documents. Fees collected for the bid invitation documents shall be limited to the costs for the formulation and printing, and the tenderee may not seek benefits through selling the bid invitation documents. Article 16. A tenderee shall be responsible for providing the basic materials related to the project inviting bids, and guarantee the authenticity and integrity of the materials provided, with the exception of those involving state secrets. Article 17. A tenderee may, by written form or by holding a preparation meeting, answer the questions of the potential tenderers in reading of the bid invitation documents and in the on-spot survey, however, the answers shall be notified in writing to all the recipients of bid invitation documents. The contents of those answers shall be a part of the bid invitation documents. Article 18. A tenderee may request the tenderers to submit alternative bid documents apart from those meeting the requirements of the bid invitation documents, however, the tenderer shall make explanation in the bid invitation documents and present corresponding evaluation and comparison methods. Article 19. A tenderee shall determine a reasonable period for the tenderers to formulate the bid documents. With respect to a project subject to survey and design bidding according to law, there shall be a period no shorter than 20 days between the day of issuing of the bid invitation documents and the day of deadline for submission of the bid documents. Article 20. Except by the reason of force majeure, a tenderee may not terminate the bidding after publicizing the bidding announcement or issuing the bid invitations, neither may the tenderee terminate the bidding after selling the bid invitation documents. CHAPTER III BIDDING Article 21. A tenderer is a corporation or organization that responds to the bid invitation and participates in the bid competition. Where a foreign design enterprise registered in its home country and engaging in construction and project services participates in the bidding, it must be in conformity with the market access commitments that China has made in the international treaties or agreements concluded or joined, and the relevant regulations on the administration of survey and design market access. A tenderer shall meet the qualifications provided by the state. Article 22. A tenderer shall formulate bid documents pursuant to the requirements of the bid invitation document. The price quoted for survey and design in the bid documents shall comply with the charging standards for project survey and design fixed by the price authority under the State Council. Article 23. A tenderer may not designate any manufacturer or supplier of the important equipment or materials related to the construction project, or write any content preferring or excluding any manufacturer or supplier in the relevant technical schemes and requirements of the bid documents. Article 24. Where the bid invitation documents require the tenderers to submit a security deposit for bidding, the amount of security deposit shall generally not exceed 2% of the survey and design fees quoted in the bid, and not exceed RMB 100,000 Yuan at the most. Article 25. During the period between the deadline for submission of the bid documents and the expiry of the valid term of the bid specified in the bid invitation documents, a tenderer may not supplement, modify, or withdraw its bid documents, or its security deposit for bidding will be confiscated. Except that the bid evaluation committee (hereinafter referred to evaluation committee) requires necessary clarification or explanation with respect to the bid documents. Article 26. The bid documents submitted prior to the submission deadline, the notice of supplementing, modifying or withdrawing the bid documents, and the alternative bid documents, of a tenderer must be affixed the official seal of the entity, and bear the signature of the legal representative of that entity or the representative authorized thereby. The tenderee shall, when receiving the aforesaid materials, check that whether the seal or signature and seal are intact, and shall issue to the tenderer a receipt indicating the recipient and time of receipt. Article 27. In the event of bidding by consortium, the parties to the consortium shall sign an agreement on joint bidding, which shall be submitted together with the bid documents to the tenderee. A party to the consortium may not participate in the bidding in its own name or by joining any other consortium. Article 28. Where an consortium wins the bid, a leader or representative shall be appointed and be authorized to conclude the contract with the tenderee on behalf of all the consortium members, and to be responsible for the coordination work during the entire implementation phase of the contract. However, a power of attorney signed by the legal representative of each consortium member shall be submitted to the tenderee. Article 29. A tenderer may not bid in the name of others, or participate in the bidding with a qualification certificate that is forged, transferred, invalid, or leased, or by any means ask any other entity to sign and affix the seal on its bid documents, and thus impair the state interests, public interests, and the legitimate rights and interests of the tenderee. Article 30. A tenderer may not practices frauds and cheats for bid winning by intentionally holding down the investment amount, lowering the construction technical requirements, reducing the area, or shortening the construction period. CHAPTER IV BID OPENING, EVALUATION, AND WINNING Article 31. Bid opening shall be carried out at the same time as the deadline for submission of bid documents specified in the bid invitation documents; and except for the reason of force majeure, a tenderee may not delay or refuse to carry out the bid opening by any excuse. Article 32. The bid evaluation work shall be assumed by the evaluation committee. The methods and requirements for composition of the evaluation committee shall comply with the relevant provisions of the Bidding Law of the People's Republic of China and the Interim Provisions on Evaluation Committees and Bid Evaluation Methods (Joint Order No.12 of the State Development Planning Commission and other six departments and commissions). Article 33. The bid evaluation for survey and design shall generally adopt the method of comprehensive evaluation. An evaluation committee shall, pursuant to the bid evaluation standards and methods specified in the bid invitation documents, and in combination with the approved project proposal, feasibility study report, or the official reply for the design of previous phase, make comprehensive evaluation of the achievements and reputation of the tenderers, the capacity of the survey and design personnel, and the advantages and disadvantages of the survey and design schemes. No standard or method not included in the bid invitation documents may be taken as the basis for bid evaluation. Article 34. An evaluation committee may request a tenderer to make necessary explanations or introductions with respect to the technical documents, but may not raise any implying or inducing questions, or expressly pointing out the omissions or errors in the bid documents of that tenderer. Article 35. Where the tenderers are allowed to submit alternative bids pursuant to the bid invitation documents, the evaluation committee may evaluate the alternative bid submitted by the bid winner to decide whether to adopt that alternative bid. The alternative bids of the tenderers not meeting the conditions for bid winning will not be considered. Article 36. Where the bid documents are under any of the following circumstances, the bid shall be dealt with as void bid or be rejected: (1) The bid documents are not sealed according to the requirements; (2) The bid documents are neither affixed with the official seal of the tenderer, nor signed by the legal representative of the tenderer or by the representative authorized thereby; (3) The price quoted in the bid is inconformity with the charging standards for survey and design promulgated by the state, or is lower than the cost for vicious competition; (4) The bid documents fail to respond to the substantial requirements and conditions of the bid invitation documents; or (5) In the event of bidding by consortium, the tenderer fails to submit the agreement on joint bidding to the tenderee. Article 37. Where a tenderer is under any of the following circumstances, its bid shall be dealt with as void or be rejected: (1) The tenderer fails to submit the security deposit for bidding pursuant to the requirements of the bid invitation documents; (2) The tenderer colludes with other tenderers in quoting the price or colludes with the tenderee in the bidding; (3) The tenderer bids in other's name or practices any other fraud; (4) The tender seeks bid winning through bribing the tenderee or any member of the evaluation committee; (5) The consortium changes its composition after passing the pre-qualification, and includes any corporation or other organization that has not gone through the pre-qualification or has failed the pre-qualification; or (6) The tenderer indicated in the bid documents is substantially different from the applicant for pre-qualification in respect of the name and organizational structure. Article 38. An evaluation committee shall, after completing the bid evaluation, present a written evaluation report to the tenderee recommending the qualified candidates for bid winning (hereinafter referred to candidates). The contents of the evaluation report shall be in conformity with the provisions of Article 42 of the Interim Measures on Evaluation Committees and Bid Evaluation Methods. However, the evaluation committee shall explain the reasons in detail in the evaluation report if it decides to reject all the bids. Article 39. The evaluation committee shall recommend only 1 to 3 candidates and shall indicate the sequence of those candidates. The tenderers that can satisfy the comprehensive evaluation standards fixed in the bid invitation documents to a maximum extent shall be recommended the candidates. Article 40. With respect to a construction project invested with state-owned funds or financed by the state, the tenderee shall generally determine the candidate ranked first as the bid winner. Where the candidate ranked first waives the bid winning, suggests incapacity to perform the contract due to force majeure, or fails to submit the security deposit for contract performance within the prescribed time limit required by the bid invitation documents, the tenderee may determine the candidate ranked second as the bid winner. Where the candidate ranked second fails to conclude the contract due to the same reasons specified in the preceding paragraph, the tenderee may determine the candidate ranked third as the bid winner. Article 41. A tenderee shall, within 15 days from receiving the written evaluation report from the evaluation committee, determine the bid winner according to the recommendation of the evaluation committee, or authorize the evaluation committee to directly determine the bid winner. Article 42. The tenderee and the bid winner shall, within 30 days from the day of issuing of the bid winning notification, conclude a written contract according to the bid invitation documents and the bid winner's bid documents. The bid winner shall, in performance of the contract, abide by the relevant provisions of the Contract Law and the Regulations on the Administration of Survey and Design of Construction Projects on the formulation and implementation of survey and design documents. Article 43. A tenderee may not set conditions for issuing the bid winning notification by holding down the survey and design fees, increasing the work load, or shortening the survey and design periods, neither may it conclude with the bid winner any other agreement going against the substantial contents of the contract. Article 44. A tenderee shall, within 5 workdays from concluding the contract with the bid winner, refund the security deposit for bidding once-and-only to the bid winner and those losing the bid. Where the bid invitation documents have provided economic compensation to the tenderers losing the bid, such compensation shall be paid together within the same time limit. Where the bid invitation documents require the bid winner to submit security deposit for contract performance, the bid winner shall do so; and with consent of the bid winner, its security deposit for bidding may be taken as the security deposit for contract performance. Article 45. A tenderee shall, within 7 workdays from notifying all the tenderers losing the bid of the bid winning result, return the bid documents to those tenderers one by one. Where the tenderee or bid winner adopts the technical scheme in the bid documents of any other tenderer losing the bid, it shall obtain written consent of that tenderer and pay reasonable use fees thereto. Article 46. Bid evaluation and determination shall be completed 30 workdays prior to the expiry of valid term of the bid, for failure to complete the work within that period, the tenderee shall notify all the tenderers to extend the valid term of their bids. The tenderers agreeing to extend the valid term of their bids shall extend the valid term of their bidding guarantees accordingly, but may not modify the substantial contents of their bid documents. The tenderers refusing to extend the valid term of their bids shall have the right to take back their security deposit for bidding. Where the bid invitation documents have provided compensation for the tenderers losing the bid, the tenderers refusing the extension shall have the right to get compensation. Article 47. With respect to a project subject to survey and design bidding according to law, the tenderee shall, within 15 days from the day of determination of the bid winner, submit a written report on the bidding information to the relevant administrative supervision departments. A written report shall include the following contents generally: (1) Basic information about the project inviting bids; (2) Information about the tenderers; (3) Name list of the members of the evaluation committee; (4) Bid opening information; (5) Bid evaluation standards and methods; (6) Information about the void bids; (7) Name list of the candidates in proper sequence recommended by the evaluation committee; (8) Bid winning result; (9) Reasons for a candidate not ranked first to be the bid winner; and (10) Other issues that need to be explained. Article 48. Under any of the following circumstances, a tenderee shall carry out the bidding over again pursuant to the present Measures: (1) There are fewer than 3 potential tenderers; (2) There are fewer than 3 tenderers that have submitted the bid documents prior to the deadline for bid submission; (3) All the bids are dealt with as void or are rejected; (4) The evaluation committee decides to reject all the bids for the reason that the bidding obviously lacks competition as there are fewer than 3 effective bids after the evaluation committee rejects the unqualified bids or take them as void bids; (5) There are fewer than 3 tenderers that agree to extend the valid term of their bids pursuant to Article 46. Article 49. Where a tenderee carries out the bidding over again and any of the circumstances specified in Article 48 occurs, with respect to a project subject to government examination and approval pursuant to the state provisions, no more bidding need to be carried out upon approval by the department that made the examination and approval; with respect to any other construction project, the tenderee may decide by itself not to carry out the bidding any more. CHAPTER V RULES FOR PUNISHMENT Article 50. With respect to a project subject to survey and design bidding according to law, a tenderee under any of the following circumstances shall be ordered to correct the act and be imposed on a fine ranging from 10,000 Yuan to 30,000 Yuan; where the circumstances are serious, the bidding shall be null and void: (1) The tenderee carries out the bidding without the conditions for doing so; (2) The tenderee fails to carry out open bidding where open bidding is required; (3) The tenderee fails to publicize the bidding announcement where the announcement is required; (4) The tenderee fails to publicize on the designated media the bidding announcement for a project subject to bidding according to law; (5) The tenderee adopts the method of selected bidding without approval; (6) The period between the day of sale of the bid invitation documents or pre-qualification documents and the day of stop of the sale is shorter than 5 workdays; (7) The period between the day of issuing the bid invitation documents and the day of deadline for submission of the bid documents is shorter than 20 workdays; or (8) The tenderee terminates the bidding after publicizing the bidding announcement, issuing the bid invitations, or selling the pre-qualification documents for reasons not attribute to force majeure. Article 51. In the case of bidding by consortium, any consortium member that bids in its own name, or joins another consortium for the same bidding shall be ordered to correct the act, and may be imposed on a fine ranging from 10,000 Yuan to 30,000 Yuan concurrently. Article 52. Where any tenderer of a project subject to bidding according to law practices frauds and cheats for the bid winning by tendering bids in any other's name, participating in the bidding with forged, transferred, leased, or invalid qualification certificate, or having any other entity to sign or affix seal on the bid documents it formulated, the bid winning shall be null and void. Where a crime is not constituted, a fine ranging from 5бы to 10бы of the value of the bidding project shall be imposed on that tenderer, and a fine ranging from 5% to 10% of the amount of fine imposed on the entity shall be imposed on the person directly in charge of the entity and other directly liable personnel; where there are any illegal gains, such gains shall be confiscated concurrently; where the circumstances are serious, the tenderer shall be disqualified for tendering bids for the projects subject to bidding according to law for 1 or 3 years, or even the business license of that tenderer shall be revoked by the department of industry and commerce administration. Article 53. Where a tenderee applies discriminatory treatments to the potential tenderers and restricts or excludes any pre-qualified potential tenderer from participating in the bidding by unreasonable conditions, such as drawing ballots or numbers, or compulsorily requires the tenderers to form an consortium to bid jointly, or restricts the competition among the tenderers, that tenderee shall be ordered to correct the act and may be imposed on a fine ranging from 10,000 Yuan to 50,000 Yuan. Article 54. If any of the following circumstances occurs in the process of bid evaluation, the evaluation shall be null and void, the evaluation or the bidding shall be carried out over again according to law, and a fine of less than 30,000 Yuan may be imposed concurrently: (1) The bid invitation documents used contain no definite bid evaluation standards or methods; (2) The bid evaluation standards and methods contain any content preferring or excluding any tenderer, impairing or restricting the competition among the tenderers, and affecting the bid evaluation result; (3) Any person that shall withdraw from being a member of the evaluation committee participates in the bid evaluation; (4) The formation and composition of the evaluation committee are inconformity with the statutory requirements; or (5) The evaluation committee or it members have committed any illegal act during the process of bid evaluation and thus affect the evaluation result. Article 55. Where the tenderer and bid winner fails to conclude a contract according to the bid invitation documents and the bid winner's bid documents in any of the following cases, they shall be ordered to correct the act and may be imposed on a fine ranging from 5бы to 10бы of the value of the bidding project: (1) The tenderee sets conditions for issuing the bid winning notification by holding down the survey and design fees, increasing the work load, shortening the survey and design periods, etc.; (2) The tenderee fails to conclude a contract with the bid winner without justified reasons; (3) The tenderee presents to the bid winner any additional conditions beyond the major contract terms specified in the bid invitation documents, and makes conditions such as the premise for concluding the contract; (4) The bid winner fails to conclude a contract with the tenderee without justified reasons; (5) The bid winner presents to the tenderee any additional conditions beyond the major contract terms specified in its bid documents, and makes conditions such as the premise for concluding the contract; or (6) The bid winner refuses to submit the security deposit for contract performance pursuant to the requirements. The provisions of the preceding paragraph shall be inapplicable where the cases mentioned above are caused by force majeure. Article 56. In the absence of provisions on an illegal act and the punishment thereof in the present Measures, the provisions of the Bidding Law of the People's Republic of China and the relevant laws and regulations shall be executed. CHAPTER VI SUPPLEMENTARY PROVISIONS Article 57. With respect to the bidding of a project using loans or aid funds from international organizations or foreign governments, if the loaner and fund supplier have otherwise provisions on the conditions and procedures for the survey and design bidding of the project, such provisions may be applied, except where they go against the public interests of the People's Republic of China. Article 58. Where any provisions concerning the bidding of survey and design formulated prior to the promulgation of the present Measures are inconsistent with the present Measures, the latter shall prevail. Where laws and administrative regulations have any otherwise provisions, such provisions shall be complied with. Article 59. The power to interpret the present Measures shall remain with the State Development and Reform Commission in conjunction with the relevant departments. Article 60. The present Measures shall take effect as of August 1, 2003. |
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