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Article 1. These Measures are formulated under the provisions of Article 65 of the Tendering and Bidding Law of the People's Republic of China with a view to safeguarding the State interests, the public interests of the society and the lawful rights and interests of the parties involved in the tendering and bidding and to establishing a fair and efficient system on handling the complaints concerning the tendering and bidding activities for engineering construction projects. Article 2. These Measures shall apply to the complaints about the activities relating to the tendering and bidding for engineering construction projects and the handling of them. The tendering and bidding activities mentioned in the preceding paragraph shall include tendering, bidding, the opening of tender, the assessment of tender, the winning of tender and the signing of contract. Article 3. Bidders and other interested parties shall have the right to complain to the relevant administrative and supervisory department if they hold that the tendering and bidding activities fail to abide by the provisions of laws, regulations and rules. Other interested parties mentioned in the preceding paragraph shall mean the legal persons, other organizations and individuals who are not the bidders, and who have direct or indirect interests in the project whose tender is invited or in the activities relating to the invitation to tender. Article 4. Such administrative and supervisory departments in charge of the tendering and bidding activities as the development and reform commissions, the construction departments, water resources departments, communications departments, railway departments, civil aviation administrations, information industry (communications and electronics) departments at various levels shall accept complaints and legally make decisions on the handling of them in accordance with the Circular of the General Office of the State Council on Printing the Opinions concerning Dividing the Functions of the relevant departments of the State Council on Implementing the Administration and Supervision of the Tendering and Bidding Activities (No.34[2000] of the State Council) and the divided functions prescribed by the local people's governments at various levels. The State Development and Reform Commission shall accept the complaints concerning the tendering and bidding activities for State major construction projects including industrial projects and legally make decisions on the handling of them. If the relevant administrative and supervisory department has accepted a complaint concerning the tendering and bidding activities for a State major construction project, the relevant administrative and supervisory department shall inform the State Development and Reform Commission of the matter, and the State Development and Reform Commission will not accept the complaint. Article 5. The administrative and supervisory department shall, when handling complaints, adhere to the principle of fairness, impartiality and high efficiency to safeguard the State interests, the public interests of the society and the lawful rights and interests of the parties involved in the tendering and bidding. Article 6. The administrative and supervisory department shall determine the institution inside the department responsible for accepting complaints and its telephone number, fax, E-mail address and mailing address, and publish them to the society. Article 7. Any complainant shall, when filing a complaint, submit a letter of complaint. The letter of complaint shall contain the following items: (1) The name, address and effective contact information of the complainant; (2) The name, address and effective contact information of the person against whom the complaint is filed; (3) The basic facts of the matters complained about; (4) The relevant requests and claims; and (5) The effective clues and the relevant evidencing materials. If the complainant is a legal person, the letter of complaint shall be signed and sealed by its legal representative and the authorized representative thereof. If other organizations or individuals file the complaint, the letter of complaint shall be signed by its main principal or the complainant personally, to which the duplicate of his/her effective identity certificate shall be attached. If the materials relevant to the letter of complaint are written in a foreign language, the complainant shall also submit the Chinese version thereof. Article 8. Any complainant may neither squeeze out its competitors in the name of complaint nor file any false and malicious complaint and impede the normal running of the tendering and bidding activities. Article 9. Any complainant shall file a written complaint within 10 days after the date when he/it knows or should know that his/ its interests are infringed upon. Article 10. Any complainant may either file a complaint personally or entrust an agent to handle the affairs relevant to the complaint. The agent shall submit to the administrative and supervisory department the authorization letter together with the letter of complaint. The letter of authorization shall clarify the authorization of the agent and the matters in relation thereto. Article 11. The administrative and supervisory department shall, within 5 days after receiving the letter of complaint, review the complaint and, depending upon circumstances, make the following decisions on handling it respectively: (1) Make a decision on not accepting it, if it fails to fulfill the conditions for handling a complaint, and inform the complainant of the reasons for not accepting in writing; (2) If the complaint fulfills the conditions for handling a complaint but is not within the scope of the complaints that shall be accepted by the department, the department shall inform the complainant that he/it shall file the complaint to other administrative supervisory department. If the department decides to accept the complaint that fulfills the conditions for handling a complaint, the date when it receives the letter of complaint shall be the date of formal accepting. Article 12. Any complaint involving any of the following circumstances shall not be accepted: (1) The complainant is not the person participating in the tendering and bidding activities or have no interests in the project complained about; (2) The matters complained about are not specific, no effective clues thereto are provided and it is difficult to investigate and prove them; (3) The letter of complaint fails to state the real name, bear the signature and indicate the effective contact information of the complainant. In case the complaint is in the name of a legal person, the letter of complaint fails to be signed by its legal representative and fixed by its official seal; (4) The complaint is beyond the limitation of complaint; (5) A decision on handling the complaint has been made, and the complainant fails to adduce new proof; or (6) The matters complained about have entered the administrative review or the administrative litigation proceeding. Article 13. If any staff member of the administrative and supervisory department who is responsible for handling complaints is involved in any of the following circumstances, he/she shall withdraw on his/her own initiative: (1) One of his/her close relatives is the complainant or the person against whom the complaint is filed, or is the main principal of the complainant or of the person against whom the complaint is filed; (2) He/she held the senior management position in the recent three years in the entity against whom the complaint is filed; or (3) He/she has other interests with the complainant or the person against whom a complaint is filed, which may affect the impartial handling of the matters complained about. Article 14. The administrative department shall, after accepting a complaint, obtain and consult the relevant documents, and investigate and verify the relevant circumstances. The administrative and supervisory department with the right to accept complaints shall, in conjunction with other relevant administrative and supervisory departments, jointly investigate into those major, complex and matters involving many aspects. And upon joint consideration, the accepting department shall make a decision on handling the complaint. Article 15. The administrative and supervisory department shall arrange more than two administrative officers enforcing law to investigate and obtain proof. They shall write down the record and hand it over to the person against whom the investigation is conducted for his/her signature and confirmation. Article 16. The administrative and supervisory department shall, when handling a complaint, hear the statements and self-defense of the person against whom the complaint is filed, and, when necessary, notify the complainant and the person against whom the complaint is filed to conduct a cross-examination. Article 17. Any staff member of the administrative and supervisory department responsible for handling complaints shall be in strict compliance with the confidentiality provisions and keep confidential any State secret, commercial secret which he learns in handling a complaint, and may not disclose the matters complained about to any other organization or individual who has nothing to do with the complaint. Article 18. Such parties involved in the matters complained about as the complainant, the person against whom a complaint is filed, and the members of the tender assessment board shall take cooperative actions for the investigation carried out legally by the administrative and supervisory department and provide the relevant materials and information according to the facts, and may not make any denial, concealment thereof or any false report thereon. Article 19. If a complainant claims to withdraw his/its complaint before a decision on handling the complaint is made, he/it shall make the claim in writing and explain the reasons. The administrative and supervisory department shall, depending upon the following circumstances, decide on whether to grant an approval of such withdrawal: (1) If it has been ascertained that an illegal act is involved in the matters complained about, such withdrawal shall not be permitted. And the investigation shall be continued until a decision on handling the complaint is made; (2) If the withdrawal of the complaint does not infringe upon any State interest, any public interest of the society and any lawful right and interest of other parties, the withdrawal shall be permitted. And the process of handling the complaint shall be terminated. The complainant may not file the complaint over again based on the same facts and reasons. Article 20. The administrative and supervisory department shall, based on the investigation and the proof obtained, carry out an examination of the matters complained about and make a decision on handling the complaint according to the following procedures: (1) If the complaint lacks fact or law basis, the complaint shall be dismissed; (2) If the complaint turns out to be true, and an illegality really appears in the tendering and bidding activities, penalties shall be imposed upon the illegality in accordance with the Tendering and Bidding Law of the People's Republic of China and other regulations and rules. Article 21. The administrative and supervisory department responsible for accepting complaints shall, within 30 days from the date of accepting the complaint, make a decision on handling the matter complained about and notify the result of handling the complaint to the complainant, the person against whom the complaint is filed and other parties relating to the complaint. If the circumstances relating to the complaint are complex, and a decision is unable to be made within the specified time limit, the time limit for handling the complaint may be extended properly with the approval of the principal of the department. The complainant and the person against whom the complaint is filed shall be notified of the extension. Article 22. A decision on handling a complaint shall contain the following contents: (1) The names and addresses of the complainant and the person against whom the complaint is filed; (2) The matters about which the complainant complains and his/its claims; (3) The answers and requests of the person against whom the complaint is filed; (4) The basic facts found by an investigation; and (5) The handling opinions and the basis of the administrative and supervisory department. Article 23. The administrative and supervisory department shall establish the archives on handling complaints, keep and manage them well, and accept the supervision and inspection of the relevant departments. Article 24. If the administrative and supervisory department discovers that the directly responsible person in charge or other directly responsible persons of the entity against whom a complainant is filed have committed any act violating laws, rules or disciplines, it shall advise its administrative authority in charge and the discipline inspection and supervision department to impose penalties upon him/them. If the circumstances are serious and a crime is constituted, he/they shall be transferred to the judicial organ for the handling. If a tendering agent violates any law, and the circumstances are serious, its agent qualification shall be suspended up to being cancelled in accordance with the law. Article 25. If any party has any objections to the decision of the administrative and supervisory department on handling his/its complaint or the administrative and supervisory department fails to handle his/its complaint within the specified time limit, he or it may apply for the administrative review in accordance with the law or lodge an administrative lawsuit in the people's court. Article 26. If the complainant invents facts or falsifies the evidencing materials intentionally, and the complaint is of false and malicious one, the administrative and supervisory department shall dismiss it and impose a warning upon the complainant. If the circumstances are serious, a fine of less than RMB10,000 yuan may also be imposed upon him/it concurrently. Article 27. If any staff member of the administrative and supervisory department plays favoritism, commits irregularities, abuses powers or neglects duties, and takes revenge on the complainant, the administrative penalties shall be imposed upon him/it. If a crime is constituted, the criminal responsibility shall be prosecuted for according to the law. Article 28. The administrative and supervisory department may not, when handling a complaint, charge fees from the complainant and the person against whom the complaint is filed. Article 29. For those matters that are of vile natures and serious circumstances, the administrative and supervisory department may publish the result of handling them on the relevant media and accept supervision of the media and the public. Article 30. These Measures shall be interpreted by the State Development and Reform Commission in conjunction with the relevant departments of the State Council. Article 31. These Measures shall enter into force as of August 1, 2004. |
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